When in Doubt, Classify: The Gitmo Tug of War
My first night in Guantanamo ends with me staring at rows of beige Quonset huts and a gorgeous sunset behind a row of low mountain peaks to the west. It's almost 80 degrees at nine pm, and the hum of soldiers going about their duties makes it seem like an average military base at the end of the day, if it weren't for the razor wire and sniper towers just over my right shoulder.
It leaves me unsettled, which is a feeling that recurs throughout the week I spend observing military commissions on the base—dutiful patriotism and service at odds with what it means to be an American in the new normal of a post 9/11 world.
Gitmo is 45 square miles of countryside on the southeast tip of Cuba, the base surrounded by crystal clear waters on three sides, scrub brush and mountains on the fourth. At the heart is Camp Justice, where since 2008 the United States Department of Defense has held military commissions for a small number of enemy combatants. I was there to monitor pre-trial motions in the case against the five alleged 9/11 conspirators, to observe the proceedings, a key aspect to ensuring the defendants receive fair trials.
What became clear to me over the course of a week on the base, however, was that "fair" is a matter of perspective at Gitmo.
"Wouldn't the spill have already just been done?" - Judge Colonel James L. Pohl
For over eight years the military commissions in the 9/11 case have been mired in pre-trial motions. If you ask the legal teams on either side of the case when the actual trial will begin, they answer two years at the soonest, eight at the latest, but it’s clear that no one really knows.
The ambiguity and the delay have two major causes: information essential to the case remains classified and there is a lack of established procedures for trying such a case in a military courtroom. The latter could be established in time, but the former poses a conundrum. Namely, can you have a fair trial while protecting national security?
On December 6th, the second day of hearings I observed, this question came into high-relief. The government argued that a document on the public record concerning CIA black sites should now be classified, citing a spill of sensitive information. The document speculates on the location of the sites where the torture, including waterboarding and “rectal rehydration,” had taken place.
The irony, which Judge Pohl noted, is that by attempting to classify a public document on the record, the government had given credence to the speculations in the document, in essence spilling the information themselves. It’s a perfect example of the government using an over-broad standard for how to deal with information in the case, never mind the consequences: when in doubt, classify.
The practice had been highlighted the day before. Defense counsel for Mustafa al-Hawsawi, the alleged financier of the 9/11 attacks, introduced a motion asking to show his client's medical records to an outside expert. The government countered that the records in question were classified.
The government argued that non-legal documents shouldn't be on the public record. In a federal court expert witnesses are routinely called to rebut witnesses for the prosecution, but in military commissions, nothing is routine.
Judge Pohl ruled on the side of the government and defense counsel was outraged. In a rare outburst of emotion al-Hawsawi’s counsel, Walter Ruiz, declared, "Judge, I think this whole commission is disrespectful... It is disrespectful to our flag, and it's disrespectful to our system of justice."
The moment cut to the heart of what has been happening in Camp Justice for the past eight years: a tug of war between defense and prosecution over the use of classified materials, causing years of unjustified delays in the process.
None of the legal counsel on either side of the 9/11 case are villains. Everyone involved is serving with duty to their country at heart. Defense counsel want to serve their clients honorably and constitutionally, the government wants to provide justice for the victims of 9/11 and their families. But, ultimately, the question must be answered, in these military commissions is it possible for the two to coexist?
Eight years into the case we don't have an answer, and from my short time at Camp Justice, I'm not sure we ever will.