Rotten at the Core: Day Three of the Military Commission Hearings at Guantanamo Bay

By Hina Shamsi, staff attorney with the ACLU's National Security Project

Shamsi travelled over the weekend to Cuba where she will spend the week observing hearings in cases the U.S. government has brought against two detainees being held at the U.S. Prison at Guantánamo Bay. She will post her comments and observations in a series of blog posts that begins today and which will run throughout the week.

At Guantanamo today, secrecy continued to be the theme.  At the heart of the theme is a truth taught by history and experience, and not just in this country:  government secrecy is the handmaiden of government abuse.  Another truth, one that continues to evade the Bush administration, is that government secrecy about things the world already knows (for example, the use of brutal coercion in interrogation, and the practice of rendering prisoners to other countries where they will be subjected to coercion) only undermines government credibility, at home and abroad.  In the end, secrecy ends up making us all less safe.

This morning, the Office of Military Commissions (OMC) released a redacted version of the secret document that was mistakenly released during the Khadr hearing on Monday, and about which I wrote yesterday.  To its credit, and perhaps in acknowledgement of the fact that much of the information was already out, OMC did a pretty light redaction, blacking out names and other identifying information and details about location.  

During a press briefing this morning, the Chief OMC Prosecutor, Col. Lawrence Morris, said the fact that the government provided the document to the defense reflects a commitment on the part of the prosecution to providing the defense "every scrap of evidence" it has related to the case.  Hopefully, we’ll see the truth of Col. Morris’ words play out over the course of the proceedings.  But a commitment to abiding by what is already a fundamental principle of fair trials – equal access to information – doesn’t address the issues raised by secrecy in at least two ways.

First, and as I wrote in a comment earlier, the government is the gatekeeper of what is classified and what is not.  In essence, the government controls what the defense can and cannot disclose to the public about its own client.  There may sometimes be legitimate national security reasons for classifying particular pieces of evidence or the sources and methods used to obtain them.  But that doesn’t mean classification should be the default choice or that the government can use its classification authority both as a sword and a shield.  

For example, in Omar Khadr’s case, the story told in the court of public opinion has been one-sided so far:  Khadr was the only person who could have killed a U.S. servicemember with a grenade.  But as the released document shows – and as the government has known for years – there were two people who could possibly have thrown the grenade and the government’s case appears at least in part to be based on a witness’ reconstruction of events two years after the fact.  

The released document also calls into question the bases for two of the other charges against Khadr, for conspiracy and material support for terrorism.  According to the prosecution, among the underlying acts Khadr allegedly engaged in as a joint enterprise was using small arms fire to kill two Afghan militia members accompanying U.S. forces.  In the final charge sheet, the Convening Authority (the OMC official responsible for convening the commissions and approving the charges brought by the prosecution) crossed out the allegation that "other suspected al Qaeda members" could have been responsible, as you can see here, in the last three pages of the document.  This would leave Khadr solely responsible for the alleged deaths.  The government may have other evidence to back up its claims, but based on the witness statement in the released document, there was, in fact, at least one man and possibly two other men who could have killed the Afghans.  

For the last three years, public opinion, based on government disclosure, about Omar Khadr’s guilt for his alleged crimes has been decidedly one-sided.  Now, based on the mistakenly released document, it appears the government may not have told the full story; we’re left to wonder what else we don’t know.

The second problem with secrecy is its use to cover up abuse.  One very concrete example occurred yesterday, when my colleague Ben Wizner argued before a federal judge that the government should not succeed in its attempt to throw out on "state secrets" privilege grounds a case challenging the role of a Boeing subsidiary in the CIA’s extraordinary rendition program.  As Ben said, "'Extraordinary rendition' is no secret. By the government's reasoning, the CIA's torture and detention program can be discussed anywhere in the world, except in an American courtroom."

It’s also no secret that the government used brutal techniques against CIA prisoners first held abroad and now detained at Guantanamo.  Also yesterday, CIA director Michael Hayden confirmed that waterboarding – universally recognized as torture except by Bush administration officials – was used on three of these men, alleged high-level al-Qaeda operatives Khalid Shaikh Mohammed (KSM), Abu Zubaydah, and Abd al Rahim al Nashiri.  Yet the veracity of any information obtained from them – and any information they may have about other Guantanamo detainees – may never be tested.  The administration has taken the position that their treatment in custody is classified, as a matter of the highest national security.  

The administration’s position is an issue in the second case I will be observing this week.  Defense attorneys for Salim Ahmed Hamdan, Osama bin Laden’s alleged driver, have asked for access to KSM and al Nashiri to help refute the government’s allegation that Hamdan engaged in a conspiracy with al Qaeda.  The government is resisting, and this may be an issue in Hamdan’s case, if not tomorrow (when Hamdan’s hearing is scheduled to start), then at the next round of pre-trial hearings.