Yesterday, Judge James Pohl ordered the government to disconnect any outside censors to the courtroom, stating that he is the only person with the authority to decide whether the proceedings should be closed to the public. Judge Pohl's orders followed a confusing episode on Monday in which an unknown government agency cut the audio feed during a pre-trial hearing in the 9/11 case.
The chaos witnessed at Guantanamo this week reinforces what many of us in the human rights community have been saying for over a decade now: that the Guantanamo quagmire is not likely to improve. Regardless of how many times the government tries to reincarnate the military commissions, it has failed to establish a system that upholds our commitment to fair, speedy, and public trials.
A few troubling questions come to mind when thinking about this week's censorship fiasco at Gitmo:
1. Who is really running the show?
In Article III court proceedings, the judge rightly serves as the neutral arbiter between the parties and is in charge of regulating the proceedings. But the military commissions turn this concept on its head. Judge Pohl did not appear to know who was behind the censorship or that anyone other than him even had the ability to cut the feed. The prosecution did not seem surprised by the censorship, but refused to disclose exactly which agencies had access to the censorship button. All of this leads us to believe that instead of a neutral judge running the show, it is instead the U.S. government, and thus even more unlikely that the 9/11 defendants will receive a fair and impartial trial.
2. Are there any constraints on the government's ability to designate material as classified and thereby prevent its disclosure?
I wrote earlier this week about how secrecy has become all too common in recent court proceedings I have observed. What is most troubling is that the public often has no way of knowing whether the government's classification determinations are justified. However, the censorship that occurred at Gitmo on Monday shows the government's tendency to shroud the military commission proceedings in unnecessary secrecy. At the moment the government cut the feed, KSM's attorney, David Nevin, had simply started to discuss a declassified pre-trial motion, meaning there was no justification for the censorship. Moreover, the public and the media already hear the proceedings on a 40-second delay, which helps to ensure that Judge Pohl would have had ample time to cut the feed had someone started to discuss something that was actually classified.
3. Are there any limits on the government's ability to eavesdrop on Gitmo detainees?
In Article III proceedings, the accused are entitled to confidential communications with their counsel. But the events this week led David Nevin to rightly question the government's all-powerful presence at Guantanamo. A Miami Herald article quoted Nevin as saying the following:
“'We have significant reasons to believe that we have been listened in on — not just in the courtroom.' For an example, Nevin said that the Guantánamo prison requires that, before private conversations between attorney and client, the lawyers must divulge what language they’ll be speaking."The pre-trial hearings for the 9/11 defendants are scheduled to resume on February 11. First on the agenda will be the defense's motion to suspend the proceedings until there has been an investigation as to who has been listening in. I wish I could say that I am hopeful that such a request will help bring some transparency and clarity to the proceedings, but it seems that at Guantanamo it's always 1/2 a step forward and 3 steps back.