Secrecy and Restricted Access Damage Guantánamo’s Image and Effectiveness

Anthony S. Barkow is a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org), and was a federal prosecutor for 12 years, most recently serving as an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of New York, where he handled some of the most significant terrorism and securities fraud prosecutions in the United States.

Guantánamo Bay, September 26, 2008: Every courthouse in which I’ve observed the practice of law has them: court watchers. They are a group of people--virtually always elderly--who spend their days going from courtroom to courtroom watching events. Then they meet every day for lunch and discuss the day’s proceedings. They are symbolic of the openness of United States courts: anyone can enter, watch, and follow the court proceedings with minimal effort.

But the military commission hearings at Guantánamo Bay are different. I flew here on a 12-seat turbo-prop commercial airplane with no toilet. The plane wasn’t allowed to fly over mainland Cuba so it took 3 ½ hours to get here from Fort Lauderdale; a direct flight would’ve taken about an hour. I sleep in a tent on an abandoned airstrip. The tent is kept at what feels like sub-zero temperatures to discourage cat-sized “banana rats” and other unnamed critters from invading, while at the same time being so humid inside that it feels like you are sleeping in a wet ice box. I cannot go anywhere, at any time, without an escort, and I am not supposed to go anywhere, at any time, without going with the entire group of human rights observers who are here. I do not question why the military base has decided this is necessary for the base’s security, but of course one who makes that point presupposes that these proceedings should be held on a military base.

The public access problems here run much deeper than the small discomforts of life on the base and the inability of the “court watchers” easily to peruse the court proceedings. Despite the military’s claims that these proceedings are open, public access here pales in comparison to courts back home. Criminal proceedings in federal court are presumptively open. Anyone can enter the courtroom at virtually any time and stay as short or as long as one wishes. Transcripts are publicly available and, in significant cases, are typically available at the end of each court day. Written pleadings and court orders are publicly-available, and docket sheets are instantly updated online. Thus, the public, victims and their families, scholars, the entire media, and others can follow federal court proceedings as closely as they wish.

But Guantánamo Bay is different. Other than the accused, their lawyers, and court security, the only people in the courtrooms this week have been five representatives of human rights and civil liberties organizations, seven members of the media, and some government employees. (I’m told media attendance at the proceedings has been dropping precipitously, perhaps because of the costs (fiscal and otherwise) of coming here or perhaps because of the media’s constant need to report only on “new” news.”)

Getting access to written pleadings and motions and orders is extremely difficult. Lawyers are prohibited from sharing filed pleadings with anyone. And, although written pleadings are eventually posted on the Office of Military Commission website, the process is delayed and haphazard.

Moreover, there are no docket sheets for these cases. When a pleading is filed, it often takes months, according to defense lawyers, for it to be entered on a so-called “filing inventory.” These delayed inventories are piecemeal and incomplete docket sheet substitutes. Thus, it is impossible for a member of the public to keep fully abreast of court events through the written record. Instead, one must depend on the media – and often informal media connections at that – to learn about what is happening from day to day.

Additionally, the level of secrecy is extreme. In Guantánamo, events are presumptively classified or otherwise shielded. Witnesses this week virtually all testified under pseudonyms. And the secrecy mechanisms here are ad hoc, at best. Observers of the September 11 case listen to an audio feed of the events in the courtroom proceedings via a 30 - to 40-second tape delay, giving the observer a surreal time-travel experience. At one point, the audio feed of a dialogue between Khalid Sheikh Mohammed and the judge was terminated after he mentioned that Richard Nixon had written a book. (It was later acknowledged that cutting the audio had been a mistake, but we still never learned the title of the book). The following day, though, regarding a topic that surely was more sensitive than Nixon’s authorship, KSM spoke openly about his having been waterboarded and his co-defendants having been tortured.

Finally, in addition to the hurdles observers must overcome to attend, other people who are typically found in U.S. courtrooms are absent altogether. One must get clearance papers from the military to be here. Family members of the victims and the accused are not permitted to attend the hearings. One wonders whether either group will be allowed access to the trials.

Public access is not an academic issue. Every courthouse in which I’ve observed the practice of law has a public audience. In high-profile cases or those involving significant issues, the courtroom might be packed with media, family members of defendants and victims, and interested citizens. Indeed, even in low-profile cases, these same groups often appear, just in lower numbers. They are there because of the openness of United States courts, where anyone can enter, watch, and follow the court proceedings, with minimal effort. As the Supreme Court has stated, this openness “enhances the quality and safeguards the integrity of the factfinding process,” “fosters an appearance of fairness, thereby heightening public respect for the judicial process,” and “permits the public to participate in and serve as a check upon the judicial process-an essential component in our structure of self-government.” But not in Guantánamo Bay. And the price that is paid may be poor quality and low-integrity fact finding, the appearance of unfairness, and public disrespect for the process.