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February 21, 2018

Is Anyone Hearing Us Down Here? Lawlessness in Guantanamo

The military commission system at the prison in Guantanamo Bay, Cuba is a ticking time bomb. On Friday, one of its cases exploded when Judge Vance Spath abated the proceedings and unleashed a half-hour diatribe expressing his frustration with the process. The indefinite abatement is the latest problem in the case against Abd al-Rahim al-Nashiri, the suspected mastermind of the 2000 bombing of the USS Cole.

Judge Spath was visibly frustrated throughout the week-long proceedings. He commented on the defense counselor’s choice of clothing (which he deemed disrespectful), accused the defense team of “strategically undermining their client’s defense,” and repeated over and over that presiding over this case makes him feel “alone in the wilderness.”

Spath, a colonel in the Air Force, had reason to feel alone. Members of the defense refused his orders over concerns that they would violate their ethical duty if they obeyed them. To a man who has worked in military courts martial for 26 years, ignoring subpoenas and refusing to acknowledge the finality of a judge’s rulings are serious matters. But the military commission system at Guantanamo is different from the court martial system, and it doesn’t map clearly onto the civilian system, either. So even the judges are confused about what rules apply, and to whom.

Viewing the proceedings from a small gallery at the back of the court room, I could see the two sides having two entirely different conversations, talking past each other in ways that only a system with no true rule of law could allow. The defense stated that there were intrusions on attorney-client meetings that prevented members of the team from continuing to defend al-Nashiri. Spath asserted that the classified file showed that the suspected intrusions had no effect on the defense’s ability to represent their client. In fact, he called the defense’s claims “fake news.”

Lieutenant Alaric Piette, the defense attorney in charge of this case, stood strong, maintaining that under the commission rules, the defense could take no position on evidentiary matters until new learned counsel—a person qualified to defend a death penalty client—was assigned to the team. Judge Spath, meanwhile, asserted that one was assigned to the case—the same man that had quit over the secret attorney-client privilege issue more than four months prior.

Despite these fundamental disagreements, and the absence of qualified counsel, Spath initially ordered the proceedings to go on. Continuing to pre-admit evidence was, he said, in the best interest of the victims and their family members. But his efforts were in vain; the entire week was plagued by the fundamental defects of the military commissions.

These lie in a lack of precedent, a lack of clarity, and a lack of authority structure. Founding documents can be interpreted in multiple ways, with no track record showing which interpretation is correct. And when attorneys ignore a judge’s orders, no one understands how to handle these disputes. The same cannot be said of trials in U.S. federal courts.

High-level employees in the Department of Defense don’t seem to feel any ownership over this mess, one even saying so via video tele-conference. At one point, the judge essentially begged Congress, Secretary of Defense Mattis, and even the president to join the fray, asking for guidance and direction from “those in charge.” 

What’s evident, however, is that no one is in charge.

By Friday, that was all too apparent to the judge. “We’re out…until a superior court orders me to resume,” he proclaimed.

He announced his decision to abate the proceedings in a 30-minute speech in which he also discussed how deeply infected the process is, saying that ambiguity in the guiding documents has led to doubt, delay, and “tremendous tumult.”

This infected process continues to delay justice for the 17 people killed in Yemen almost 18 years ago. If al-Nashiri had been tried in federal court, this would not have been the case. There would be no room for lawlessness, intrusions on attorney-client meetings, or authority struggles. There would be precedent, due process, and a fair trial.  And if other high-profile terrorism cases are any indication, the trial would proceed without serious interruptions and conclude in a reasonable amount of time.

The events that unfolded in Guantanamo last week show the intrinsic flaws of the military commissions. There is no rule of law in GTMO, and there never will be. It’s past time to give up on this expensive and failed experiment, and to go with what works: federal courts.