Blog
Published on July 12, 2017
By Scott Johnston and Saadia H. Khan
At the beleaguered military commissions in Guantanamo Bay, Cuba, setbacks have become the norm. Unfortunately, the agonizingly slow pace of Gitmo proceedings has just gotten even slower.
This time, Army Colonel James Pohl, the military judge presiding over the 9/11 cases at Guantanamo, has indefinitely cancelled all pretrial hearings for the detainees. Likewise, Air Force Colonel Vance Spath, presiding over the USS Cole trial, has reportedly abated the death penalty proceedings for Abd al-Rahim al-Nashiri.
These stoppages arose from a squabble with Rear Admiral Edward Cashman, the Guantanamo prison commander, regarding resource reallocation. The dispute came to a head over Cashman’s decision to revoke the judges’ exclusive use of Coast Guard speedboats to ferry them across the bay that separates the airfield from the naval base.
While other visitors use a ferry to reach Guantanamo, judges and their staffs have been allocated speedboats to make the crossing for years. The speedboats were a means of keeping judges separate from prosecutors, defense attorneys, victims, and victims’ families—thus avoiding the possibility of commingling with the parties, which can prejudice the trials.
Since the new protocols were enacted, Gitmo authorities have attempted to accommodate judicial necessities for sequester with the surprisingly slipshod solution of seating them inside vans during the ferry ride. Judges Pohl and Spath have found this system insufficient. Pohl has even denied petitions to reconsider suspension of the hearings.
While this is a seemingly frivolous disagreement to hold military commissions hostage over, it is not the beginning of the standoff. Rather, it is the culmination of months of increasing tension due to inconsistencies and sub-optimal facilities at Guantanamo. In January, for instance, authorities there attempted to modify the judges’ accommodations by moving them to a trailer park that is currently the subject of a lawsuit by military attorneys who have contracted serious health problems, including cancer, possibly due to environmental carcinogens.
Still, in light of the many serious fair-trial issues that have been presented as causes for delaying or stopping the trials and ignored by these same judges, it is difficult not to look at this situation with a certain amount of skepticism. As a defense attorney for Mustafa al Hawsawi said of Pohl, “Of all the issues that have been presented that truly raise meaningful threats to fundamental fairness and due process, he chooses to take a position on his boat.”
These newest issues, of course, highlight how ludicrous the Gitmo military commission system is—and how much more appropriate Federal Court would be for these cases.
Human Rights First has written extensively on the many benefits of trying terror cases in Federal Court. Quicker proceedings, clearer legal standards and structures, and more experienced judges and prosecutors are among these benefits.
Avoiding absurd and unnecessary logistical issues is another. In Federal Court, the judges would not need housing arrangements. They certainly would not need water transportation, speedboat or otherwise, to get them to the courthouse.
If the prison commander’s motivation to cut the speedboats was financial, then he should advocate for switching the detainees to a maximum security federal prison. There, inmate incarceration costs less than $78,000 a year; at Guantanamo, ten million dollars are currently allocated per detainee per year.
Thanks to the recent speedboat spat, something that has always been true is now undeniable: trying terror cases at Guantanamo is entirely irrational.
