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August 11, 2017

Transparency at Guantanamo, But Not Where It Counts

By Saadia H. Khan

Last week I traveled to the U.S. Military Base at Guantanamo Bay, Cuba, to observe pretrial hearings in the case against Abd al-Rahim al-Nashiri. As a first-time observer of the military commissions, I was eager to see how the operations were conducted on this infamous little piece of America.

Just before I left, I was informed that proceedings would be closed to observers for the entire week. I decided to travel to the remote Cuban base anyway, hoping to at least meet with the defense and prosecution teams.

Fortunately for me, at the last minute Colonel Vance Spath, the judge in the case, opened portions of three out of the five days of hearings. Accordingly, I was excited to see what I thought would be substantive legal arguments on the merits of the case.

The majority of Monday’s three-hour hearing session was taken up by debates over scheduling and procedural matters. When these had finally been resolved, the discussion turned to the question of what, if any, information is admissible in a deposition if it was obtained by torture.

The highly-edited discussion was challenging to follow at times. It seemed that defense and prosecution were both limited in what they could say in open court due to classification rules. I understand that some information must be classified for national security reasons, but the lack of transparency even for the observers at Guantanamo was troublesome.

However, in retrospect, I’m fortunate that I was even able to observe what I did. Later that day, I learned that the live feed transmitting the proceedings to viewing sites in the United States was cut off for the first time in the history of the military commissions.

The Department of Defense gave a budget-based explanation—they saved $60,000. This might be believable if they didn’t insist on continuing to hold these hearings at Guantanamo, flying all of the staff down for each hearing on charter flights that cost $180,000 round trip.

The U.S. government is rightfully embarrassed by some of the issues brought up at the Guantanamo military commissions. After all, it approved the use of torture on detainees like Nashiri.

But particularly in the case of a relatively new legal system like the military commissions, transparency is critical if justice is the end goal. NGO and civilian observers are allowed for a reason: to give the American people insight into some of the most important cases of the century. It’s hard to do that if 90 percent of the material is hidden from view.

Aside from the transparency and organizational issues with the court itself, my time at Guantanamo was, to my surprise, very pleasant. Nearly all of the expectations, thoughts, and personal views I had about Guantanamo were entirely changed. For as long as I can remember, the only thing that I associated with Gitmo was the detention center—but there’s more to it.

There are families there. There are children that go to school there, and graduate from high school. There’s a Starbucks, three Subway locations, and a McDonalds. There are young people that have lived there their whole lives. As the only visible Muslim at Gitmo wearing my headscarf, I was more welcomed by the military personnel stationed there than I have ever felt in the continental United States. The Guantanamo I experienced could not have been more different from the one I expected.

I am glad that I went, but I am now more convinced than ever that the military commissions are not providing justice to the accused, the 9/11 victims, or the American people.

This is no slight to the personnel there. I have a tremendous amount of respect for the judge, prosecution, and defense teams. They sacrifice time with their families and are often in Gitmo more days out of the year than they are home.

Nevertheless, the inefficiency that I witnessed at Guantanamo is alarming. True justice requires a transparent and orderly process, which would be more reliably found in federal court. The irony of writing this from my living quarters in “Camp Justice,” 300 feet from the Guantanamo court room, was not lost on me.

These cases have already gone on for much too long, and they aren’t even in the trial phase yet. If the cases proceed in the military commissions, the courtroom at Camp Justice is likely to be active for years to come. As Judge Spath told the courtroom while admonishing both the defense and prosecution teams for incivility, “We’re going to be here for a long time.”

That’s pretty transparent—but it doesn’t inspire confidence.