Last week at Guantánamo a farcical dance played out, as it does every six months or so. Representatives of the U.S. mainstream media — and other reporters from around the world — flew to the U.S. naval base at Guantánamo Bay, Cuba, to witness the latest round of the seemingly interminable pre-trial hearings in the cases of Khalid Sheikh Mohammed and four other men accused of masterminding or otherwise facilitating the terrorist attacks of September 11, 2001, on New York and Washington, D.C.
The farce of the Guantánamo trials is by now well established, although last week’s hearings introduced the novelty of a hidden hand, unknown even to the judge, flicking an invisible switch to silence potentially embarrassing testimony. The proceedings also took place against the backdrop of two courtroom appeals that have dealt savage blows to the claimed legitimacy of the commissions.
In the case of the 9/11 trial, a permanent feature is the seemingly insoluble tussle between the prosecution and the defense. On the one hand are the attorneys for the accused, whose job is to try to ensure that their clients do not receive unfair trials. That involves attempting, incessantly, to point out the elephant in the room — the fact that all the men were held for many years in “black sites” run by the CIA, where they were subjected to torture, approved at the highest levels of the government during the Bush administration, even though torture is a crime. On the other hand are the prosecutors, whose job, above all, appears to be to hide all mention of torture. In the middle is the judge — in the case of the “high-value detainees,” Army Col. James L. Pohl, who replaced Marine Col. Ralph Kohlmann as the Chief Presiding Officer for the Military Commissions on January 6, 2009.
During his four years in the job, Colonel Pohl has not been able to demonstrate that the system of which he is the chief presiding officer is credible. Barack Obama initially suspended the commissions on taking office in January 2009 while he reviewed them. Although he brought them back to life in the fall of 2009, little had changed from the system George W. Bush revived in the fall of 2006, after the Supreme Court had ruled that the first version introduced in 2001, after the 9/11 attacks — and the particular brainchild, it seems, of Dick Cheney and David Addington — was illegal.
Beyond the glaring fact that no coherent case can be made for holding military commission trials rather than trials in federal court, Obama’s revived commissions share one particular problem with the version approved by Congress in 2006 — war crimes invented by Congress, including providing material support for terrorism and conspiracy. In testimony before the Senate Armed Services Committee in July 2009, two senior Obama administration officials — Jeh Johnson, the Defense Department’s general counsel (PDF), and David Kris, the assistant attorney general in the Justice Department’s National Security Division (PDF), — both argued that material support should be excluded from the list of crimes that can be tried by military commission because they thought it probable that an appeals court would reverse any successful conviction, concluding that material support is not a traditional violation of the law of war.
The warnings of Johnson and Kris fell on deaf ears. They were correct in their analysis, although it was not until October 16, 2012, that the Court of Appeals in Washington, D.C. — a deeply conservative court — threw out the conviction of Salim Hamdan, a driver for Osama bin Laden, who had been convicted of “providing material support to terrorism” at his trial by military commission in August 2008.
The court stated, “When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime.”
The Hamdan embarrassment was followed by another court defeat, on the eve of the 9/11 hearings. As the New York Times pointed out in an article a month ago about the problems facing the administration regarding the legitimacy of the commissions, the charge of “conspiracy” was “another charge the Justice Department has agreed is not part of the international laws of war,” and was of relevance because the only other conviction in the commissions (as opposed to the four decisions reached through plea deals) was the conviction of Ali Hamza al-Bahlul for making propaganda videos for al-Qaeda. He received a life sentence in November 2008, after a one-sided trial in which he refused to mount a defense.
Al-Bahlul was convicted of conspiracy and material support, but when the ruling was delivered on January 25, 2013, the Court of Appeals vacated his conviction for material support, conspiracy, and another charge, solicitation, citing a supplemental brief filed by the government on January 9, 2013, advising the Court that it took the “position that Hamdan requires reversal of Bahlul’s convictions by military commission.”
Various branches of the government now appear to be at loggerheads: the Defense Department is accepting defeat, while the Justice Department plans to appeal to the Supreme Court. No one quite knows what will happen to al-Bahlul, who can be held forever according to the twisted logic of the “war on terror,” even with a vacated conviction. It appears that he will have to be returned to the general population at Guantánamo, rather than being in the wing for those who have passed through the commissions system (which currently holds only two other men), but it remains to be seen whether he will be tried again.
However, with conspiracy and material support now both demolished as valid charges by one of the most conservative courts in the land, the entire edifice of the military commissions looks hollow and ridiculous. As representatives of the media flew out to Guantánamo for the 9/11 hearings, just days after the al-Bahlul decision, there was a heightened sense, amongst those paying attention to the important matters at stake, that the farce would be darker and more ridiculous than ever.
This time, the exposure of fictional war crimes — and the terrible impact that has on America’s credibility — was added to the trials’ familiar problems: that the military commission system is, patently, an untried system, full of holes, which splutters to life every few months when the world briefly wakes up to it, and then proceeds to look like a shabby version of a real courtroom, where real crimes are prosecuted.
This time, however, a surprise awaited the reporters — and Judge Pohl.
Much debate has focused, in previous hearings, on the switch that the judge can use to silence testimony if he believes that those speaking are straying into forbidden territory — in other words, when the accused, or their attorneys, wish to mention torture. Last week, however, new depths of absurdity were plumbed when an unknown figure behind the scenes, acting independently of Judge Pohl and without the judge’s knowledge, cut the audio feed using an unknown switch in an unknown location.
As the Miami Herald explained, “The role of an outside censor became clear when the audio turned to white noise during a discussion of a motion about the CIA’s black sites.” Judge Pohl, however, made clear that “neither he nor his security officer was responsible for the censorship episode,” and stated publicly, “If some external body is turning the commission off based on their own views of what things ought to be, with no reasonable explanation, then we are going to have a little meeting about who turns that light on or off.”
The Miami Herald added, “His comments appeared to be aimed at the Pentagon prosecution team. Attorney Joanna Baltes, representing the Justice Department on secrecy matters in the case, advised the judge that she could explain what other forces have a hand in censoring the court proceedings. But not in open session.”
When even the judge is not safe from interference by a body — presumably the CIA — that cannot even be mentioned publicly, provoking a public outburst that reveals his frustrations at being undermined, it is time for all concerned to recognize that the farce must end.
With the commissions completely discredited, Obama needs to bring the 9/11 defendants to New York to face a federal court trial, as Attorney General Eric Holder announced in November 2009, before the president beat a retreat in the face of critics sniveling that it was not safe to do so. That made America look cowardly and stupid, but the commissions are not improving matters in the slightest, and, it seems certain, are incapable of delivering anything that resembles justice.