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Guantanamo Military Commissions: Wading Through Secrecy, Searching for Justice

June 28, 2018

Patricia Stottlemyer L’17

Guantanamo Bay is a surreal place. Almost as if a land outside time, it also exists outside the awareness of many Americans. Before my first trip to Camp Justice as a legal observer, friends and family were confused. “I thought that place was closed” was a common refrain.

Over the course of three official visits to Guantanamo, during which I represent my employer Human Rights First as a nongovernmental observer of the military commissions proceedings, I’ve grown familiar with the strangeness of the place—and of the legal and policy issues surrounding it. It’s no accident that most of the American public, and even the legal community, goes about day-to-day life with little awareness of Guantanamo’s continued operation. Most things that touch Guantanamo are shrouded in secrecy, which makes observing the proceedings there more challenging and more important.

Recently, the judge for the military commissions proceedings against the accused bomber of the USS Cole threw up his hands and walked off the bench in frustration. The pre-trial proceedings (yes, we’re still pre-admitting evidence) hit hurdle after hurdle in the wake of mass defense counsel resignations. The case’s three defense attorneys quit after they found what appeared to be a recording device in an attorney-client meeting facility on the Naval base. The attorneys said they could not ethically represent their client in light of the concern that their attorney-client meetings were being monitored. Chief Defense Counsel Brigadier General John Baker determined they had shown good cause for recusal.

The judge, an air force colonel, reviewed the underlying facts, and determined that the attorneys had, in fact, not shown good cause. But the public, due to classification of the factual dispute, knows less than the judge, the attorneys, and General Baker know. It’s not just the public that’s in the dark. Because the underlying facts of any audio monitoring are classified, the attorneys cannot advise their client (who, of course, does not have the requisite clearance and need-to-know) about the potential problem, such that the client might give an informed waiver of any conflict.

What the public now knows is that defense counsel found in an attorney-client meeting facility a device that could be used for audio recording. The government claims it was a “legacy microphone,” meaning its presence is a holdover from days when the facility was used for interrogations. The judge held General Baker in contempt, sentencing him to 21 days confinement and a $1,000 fine, because he refused to recall the recused defense counsel. Although a pentagon official suspended the 21-day sentence, the fine and the contempt finding remain, holding the potential for serious collateral consequences for the general’s career. His habeas case remains pending in federal court.

Several week-long sessions trudged along in the absence of the detailed defense counsel, leaving a newly minted military attorney as the sole defender on the case. A battle ensued over whether the proceedings could continue without a qualified death penalty lawyer, as the case is a capital one. In the culmination of his frustration, the USS Cole judge indefinitely abated the proceedings until a higher court could offer guidance.

The omnipresent secrecy frustrates not only the individuals involved, but also the purpose of the legal observer program, making transparency and accountability more elusive than necessary. It may also undermine public confidence in any verdict eventually reached. Arguably more concerning is the extent to which secrecy derails defense discovery. The government (the Department of Justice) serves as prosecutor in the military commissions proceedings, and they are responsible for liaising with the executive agencies that own the requested classified information.

In the 9/11 case, which has had almost thirty pre-trial sessions, with no trial date set, defense counsel are fighting for discovery related to the treatment of their clients under the CIA’s Rendition, Detention, and Interrogation (RDI) program. DOJ prosecutors issued a guidance document to all five 9/11 defense teams, restricting their investigation of RDI sites and witnesses. DOJ stated that the guidance came directly from the Original Classification Authority (OCA)—the agency in charge of the secret information at issue.

Defense counsel, including Penn Law Lecturer Alka Pradhan, claim that the government’s summaries of RDI-related evidence are unreliable and inadequate. They note that the summaries, approved by the judge, differ materially from information in the public portion of the Senate Select Committee on Intelligence’s (SSCI) report on the CIA’s detention and interrogation program. The defense counsel argue that the logical conclusion from this material discrepancy is that SSCI staff received different originals than those given to the military commissions judge. Either that, or his approval of the summaries was misguided.

But the government says defense counsel can’t see the original documents. It’s classified, they say. But—defense counsel have the same level of clearance as the SSCI staff who received the originals for the torture report. The need-to-know, then, is presumably what keeps them from access to the requested evidence. The OCA determines the need-to-know, meaning that here, the OCA has made a determination akin to that of a relevancy determination.

Prior to some clarification at a February proceeding—spurred by defense claims that the government’s guidance created a conflict between their obligation to thoroughly investigate their client’s defense (including what happened to them in CIA custody), and the prospect of criminal sanction if they defied the guidance—DOJ had barred defense counsel from speaking to any former or current CIA officials or contractors who may have been associated with the RDI program. Doing so, DOJ said, would constitute confirming or denying classified information (such classified information being the individual’s association with the RDI program).

The government provided a pre-approved list of fewer than ten RDI witnesses. Even the judge wondered aloud whether there were additional ex-CIA officials who had made public their association with the RDI program, through publishing national bestsellers, for instance, such that contacting them would not risk the disclosure of classified information.

If the purpose of adjudication—even in a military commissions setting—is to reach justice through a race toward the truth, shrouds of secrecy make reaching that truth difficult. Fights over classification and even access to filings and court documents marked unclassified, including those discussed in public sessions, cause massive delays in the process. Some family members of victims say those delays, and unreliable outcomes, do not help them feel a sense of justice.

Patricia Stottlemyer was a Post-Graduate Human Rights Fellow at Human Rights First in Washington, D.C.

This piece originally appears in the 2018 Global Affairs Review.