The More Things Stay the Same: Another Week of Military Commission Hearings

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

This week, the curtain will rise on one of the ongoing tragedies at the Guantánamo Bay detention center, spotlighting once again President Obama’s failure to fulfill a major campaign promise he made on his first days in office.

The ongoing pre-trial hearings — five more days of which are scheduled for this week — for Khalid Sheikh Mohammed and his four alleged co-conspirators in the 9/11 attacks are hardly the most egregious outcome of Obama’s failure to close Guantánamo. But their recent resumption after nearly a year of embarrassing delays caused by a never-ending trail of government intrusions serves as a stark reminder that, despite repeated promises to shut down the prison in the name of national security, President Obama has still failed to do so.

Indeed, just before Thanksgiving, he sheepishly signed the latest National Defense Authorization Act, acknowledging it contains provisions that make it impossible for him to transfer detainees like the five accused 9/11 perpetrators to the United States, even for trial. Others who have never even been accused of committing a crime will also remain there indefinitely, unless the president defies the congressional bans on their transfer or somehow convinces lawmakers to change their mind with his new as-yet-unreleased plan detailing how he’d shutter the prison. No one observing the ugly politics swirling around the Guantánamo dilemma predicts that will happen.

In the meantime, the halting effort to bring the self-described plotters of the 9/11 attacks to justice will stumble on. But that spectacle has been tainted by politics as well. In the last set of hearings in October, for example, defense lawyers claimed that public remarks by Secretary of Defense Ashton Carter and Chairman of the Joint Chiefs of Staff Gen. Joseph Dunford, Jr. criticizing a ruling by the military judge presiding over the 9/11 case constituted unlawful “command influence” that warranted the case’s dismissal. (Commander of US Southern Command Gen. John Kelly had also previously criticized the judge’s order publicly.) Indeed, the remarks, calling the judge’s ruling “outrageous” during a Senate committee hearing, certainly suggested an effort to influence the judge in his conduct of the trial.

These criticisms arose out of a January order by military Judge James Pohl, that said female guards may not escort detainees out of their cells due to the men’s religious objections to being touched by females who are not their relatives. The defendants’ lawyers had claimed their clients were refusing to meet with their attorneys if women would be physically escorting them.

The ruling prompted longtime Obama opponents and Guantánamo supporters to claim the administration is caving in to the demands of terrorists, and thereby elicited the defense department officials’ “outraged” responses.

But that sort of public commentary by senior military officials doesn’t sit well in the military justice system. Under Article 37 of the Uniform Code of Military Justice, a commanding officer may not “censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings.” Command influence has been called “the mortal enemy of military justice,” and can result in a case’s dismissal. The Military Commissions Act also specifically prohibits command influence.

To make matters worse, in this case, the remarks were made by the Secretary of Defense himself, who under the Military Commissions Act is the only official specifically authorized to remove the judge from his post.

Carter and Dunford made their criticisms at a Senate committee meeting, shortly after three Republican senators who support keeping Guantánamo open — Sens. Ayotte (R-NH), Tim Scott (R-SC), and Shelley Moore Capito (R-WV) — visited the prison in Cuba and met with female guards, some of whom have filed Equal Opportunity complaints against the judge in the 9/11 case based on his ruling. The senators had also expressed their own anger at the judge’s ruling at the public hearing.

But the claim of command influence was only one of the issues that threw a wrench into October’s military commission hearings. Earlier that week, the hearings stalled after one of the defendants asked if he could fire his lawyer and represent himself — a request that left the judge scratching his head over how that could happen, then sent the lawyers scrambling to search parallel situations in other courts they might be able to cite as precedent, since these military commissions, created in 2009, don’t have any.

Given that the defendants are not allowed access to the Internet let alone a law library, and can’t see classified evidence, even if it’s relevant to their defense, it’s difficult to see how a detainee could adequately represent himself at the commissions. What’s more, these detainees are under constant surveillance in their maximum security wing of the prison known as Camp 7 — a new plot twist revealed only after October’s hearing.

The revelation of 24-hour surveillance in their prison cells followed repeated discoveries in the last few years of government methods for intruding on what are supposed to be confidential communications between the men and their attorneys. First it was the revelation that the attorney-client meeting rooms were all secretly wired for surveillance. Then lawyers discovered that the microphones in the courtroom were sensitive enough to pick up confidential attorney-client conversations, and that recordings of everything said were being reviewed by an unnamed government agency, which could also cut off the separate audio feed to observers. Then, it was revealed that the government had access to defense lawyers’ computers and electronic files, some of which had disappeared without explanation. Then in April 2014, defense lawyers discovered an FBI agent had attempted to turn a member of their legal defense team into a government informant. It’s still not clear what the FBI was investigating.

The successive discoveries of government intrusions into privileged communications, plus the repeated emergence of unprecedented legal and procedural issues, has led to one delay after another. As a result, the pre-trial hearings in the case, begun in 2012, are still only in their initial stages today. There is no trial date set for the five men, although they’ve all been in US custody for more than 12 years. The terrorist attacks they’re accused of committing took place more than 14 years ago.

If it’s frustrating to the lawyers and observers involved, it’s probably worse for the families of the 9/11 victims, some of whom, chosen by lottery, make the effort to fly down to Guantánamo to watch the hearings, only to see the lack of progress first-hand.

“We have to show the world we’re doing this process properly, using the rule of law,” Colleen Kelly, a nurse who lost her brother in the attack on the World Trade Center in New York, said during a break in the hearings at Guantánamo in October. “Guantanamo should be closed down and these cases moved to federal courts. This courtroom isn’t the place for these trials.”

President Obama was right when — as he signed Congress’s restrictions on transferring Guantánamo detainees into law — he said: “the continued operation of this facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists.”

He still has a chance to put a stop to that. President Obama can finally present his plan for closing Guantánamo to Congress, so lawmakers can’t keep complaining they haven’t seen it. He can also continue to transfer detainees already cleared for release from the prison by all relevant security agencies, which would leave only 59 men there, making it that much more difficult for Congress to insist on keeping Guantánamo open just for them. He can speed up the Periodic Review Board hearings, which assess whether detainees not already cleared actually pose a danger. Since they began in 2013, the PRBs have completed only 23 hearings for 20 detainees. At this rate, the remaining detainees won’t all get even initial hearings until at least 2020.

President Obama could also put an end to the disastrous military commissions, and insist, as a key part of his plan to close the prison facility, that those accused of heinous crimes, such as the 9/11 defendants, be transferred and tried in a legitimate, accessible court on US soil. The military commissions have been a horror show, produced to circumvent the legal safeguards offered by the US justice system, and now threatening to live on indefinitely. The president has only one year left to close the curtain on it. 

About the Author(s)

Daphne Eviatar

Director of the Security with Human Rights Program at Amnesty International USA She advocates for US compliance with international law in US national security policy. Follow her on Twitter (@deviatar).