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August 30, 2017

The Paralyzing Uncertainty of the Gitmo Military Commissions

By Scott Johnston

Michel Foucault wrote about the Panopticon—a central tower in a circular prison—as an effective means of controlling inmates due to one essential factor: the prisoners can never be sure when they are being watched. Control is achieved through uncertainty. 

Justice and transparency, meanwhile, are antithetical to uncertainty. A system of justice provides all parties with equal information and allows them to present theories and arguments to determine responsibility for a crime. Transparency legitimizes the process, ensuring that participants share accurate evidence to the public. The more uncertainty you have, the less legitimacy can be ascribed to reports from observers as well as to the outcomes of the justice system.

Two weeks ago, I was starkly reminded of the controlling and delegitimizing power of uncertainty while serving as an observer at the military commission proceedings against detainee Abd al Hadi al-Iraqi in Guantanamo Bay, Cuba.

As a first-time observer, the most revealing clue to the uncertainty that lay ahead came before I had even packed my bags. The Office of Military Commissions (OMC) informed me that I was approved for travel and should await a follow-up email from my escort with documents and instructions. That email never came, and when I contacted the OMC they first told me to wait longer, and then stopped responding all together.

 So without any guarantee I would be allowed to board, I showed up at Joint Base Andrews. As I was making my case to a perplexed check-in attendant, a man walked up, asked my name, fished out some documents and said I was approved to board.

This may seem small, but it’s significant for two reasons. First, many observers travel long distances to Washington, D.C. to catch the flight to Gitmo. Being uncertain of whether you would even be allowed on board discourages people from risking the time and expense. Secondly, the OMC set a precedent from my first interaction with them that you cannot rely on past experience—or even stated protocol—when visiting Gitmo. There are no givens at Gitmo.

Uncertainty was the only constant throughout my week: our escort was an expert at evasiveness, our schedule was ever-shifting, and the answer to most of my questions was, “we’ll see when we get there.”

Watching the military commission proceedings themselves, it struck me how the day-to-day uncertainty I felt seemed to pervade the entire system. In response to the military judge’s questions regarding even basic information, answers were always qualified. The most common phrase: “it is my understanding that…” In one insightful exchange, the prosecution and defense argued over whether there was enough space in the defendant’s room to house boxes of legal material—the conclusion eventually being that no one knew for sure.

In a much less trivial way, this is emblematic of the military commissions as a whole. Since their establishment in 2001, only eight cases have been completed, and four of those eight convictions have been overturned on appeal (three completely and one partially) with more pending. The commissions are now on their third iteration after the courts found the first two to be deficient, and although this version has yet to be judicially reviewed, it is not inspiring confidence.

In a meeting with the Chief Defense Counsel he said, “I see zero benefit to trying [defendants] in this iteration of military commissions… if the point of doing these cases is to show that military commissions can work, that is not what we are doing.” U.S. federal courts, by contrast, handle terrorism-related cases—including high-profile cases—on a regular basis without procedural confusion.

And yet the commissions drag on year after year and the paralysis of uncertainty continues, with justice and transparency its chief victims. As debate ensued at the hearing over a particular issue threatening to draw out the al-Iraqi case even longer, an exasperated defense attorney unwittingly summed up my conclusion from the week: “I [can’t] make recommendations on ways to resolve this in this setting even though in federal court it is handled very, very differently, and I can't say more than that either without risk of crossing the line, a line that I don't know where that line is.”