Guantánamo terrorism trial implodes

If anyone doubted that the U.S. military tribunals in Guantánamo were kangaroo courts those doubts should have been erased last week when it was revealed that the FBI has been spying on the defense and even pressuring at least one member of the defense team into virtually becoming an informant while forbidding him to reveal his contact with the bureau.

It has long been known that military justice is to justice as military music is to music. The military tribunals set up in Guantánamo to try defendants allegedly involved in the atrocities carried out on 9-11 are so far outside the norms of what could be considered a fair trial that they give regular military justice a good name.

The Bush administration deliberately designed the military tribunals as kangaroo courts. The rules under which they operate are totally skewed in favor of the prosecution. Indeed, the whole idea to use the U.S. Navy base at Guantánamo, located on land that belongs by right and law to Cuba but was effectively seized from a nascent U.S.-dominated Cuban Republic at the dawn of the twentieth century, was to create a legal black hole beyond the reach of U.S. law and the Constitution. It was the perfect “black site,” a “foreign” territory totally under U.S. control where the rule of “anything goes” could be applied without worrying about such niceties as the European Union’s human rights rules.

U.S. courts, however, were not fooled by the transparent legal fiction and ruled that the Guantánamo base was in reality under full the control of the United States and subject to the jurisdiction to its laws and judiciary. Then Barack Obama’s first act upon taking office was to order Guantánamo closed. It seemed the prison at Guantánamo was history.

But none of that mattered. Right-wingers in and out of Congress made it impossible for Obama to close Guantánamo. Shamefully, the camp is still there more than six years later, making a mockery of the U.S. claim to be a paragon of the rule of law. It was the first and clearest evidence of Obama’s impotence and/or unwillingness to stop even the most awful and counterproductive manifestations of the U.S. empire.

That these trials would be a joke was clear long before the recent acknowledgement of official interference with the defense. The fact that several of the defendants were repeatedly subjected to torture is enough to consider the proceedings illegitimate.

Torture is a serious crime under international law. Those who authorized the crimes, those who developed outlandish legal rationales for them in order to immunize their bosses, and the actual perpetrators of the torture should be on trial too, albeit in a real U.S. court and with every right afforded by the Constitution.

But the Obama administration preferred “to look forward,” and the Justice Department gave everyone a pass, including top CIA officials who destroyed potential evidence in the form tapes of interrogations, an indication of consciousness of culpability. Such impunity set a terrible precedent.

An incident that occurred during a 2013 trial tragicomically exposed the farcical nature of the Gitmo tribunals. According to an account in the New York Times, “last year, as a lawyer for Mr. Mohammed* was speaking during another hearing, a red light began flashing. Then the videofeed from the courtroom abruptly cut out. The emergency censorship system had been activated. But why? And by whom? The defense lawyer had said nothing classified. And the court officer responsible for protecting state secrets had not triggered the system. Days later, the military judge, Col. James L. Pohl, announced that he had been told that an “original classification authority” — meaning the C.I.A. — was secretly monitoring the proceedings. Unknown to everyone else, the agency had its own button, which the judge swiftly and angrily disconnected.”

In an interview with the same newspaper, Eugene R. Fidell, a professor of military justice at Yale Law School, succinctly summarized the situation: “It’s a courtroom with three benches. There’s one person pretending to be the judge, and two other agencies behind the scenes exerting at least as much influence.”

The FBI’s intervention in this latest case, which led to a halt in the long-delayed proceedings, seemed so bizarre to some relatives of 9-11 victims they are charging that the bureau did it deliberately to derail the trial. It’s understandable that people who have endured severe psychological trauma would entertain such improbable notions. But in that case, what would be the FBI’s motive? It’s much more likely that that the Bureau’s move is a reflection of another ominous new trend, the government’s prosecution/persecution of defense attorneys in terrorism cases. One such attorney has already been convicted and imprisoned.

The latest controversy regarding the Guantánamo military tribunals shows that while the rhetoric about “the war on terror” that characterized the Bush administration may have ended, the same cannot be said about the overreaching and the transgressions against the rule of law that are part and parcel of a “war” without geographical, temporal, or ethical limits. And it’s deeply disappointing that despite his promises president Obama has hardly done everything in his power to right the situation and that he has not fought harder to vanquish those who stand in the way of reestablishing a semblance of decency in our dealing with our adversaries.

* Uthman Abdul Rahim Mohammed Uthman is a 34- or 35-year-old citizen of Yemen. As of January 2010, the Guantánamo Review Task Force had recommended him for continued detention. As of April 21, 2014, he has been held at Guantánamo for 12 years three months.