Closing the Loop on Khalid Sheikh Mohammad?

The myth that President Barack Obama closed Guantanamo his first year in office persists, but four years later the detainees are still there. Can justice be served?

I wanted to find out for myself. Over the past month, the Obama administration has started prosecuting some of the Guantanamo prisoners. They are tried in a specially constructed courtroom at Guantanamo, under military commissions rules touted to restore the rights absent under former President George W. Bush’s tribunals.

The trial logistics are a challenge: the tribunals convene periodically on the Guantanamo naval base under tightly controlled conditions. Additionally, the hearings are simulcast to military bases in the U.S. where members of the public and press are allowed to view.

I went to the Ft. Meade army base in Maryland to view the proceedings via closed circuit TV. While I was there, Khalid Sheikh Mohammad, alleged ringleader in the September 11, 2001, attacks, and four other men charged with various crimes related to 9/11, were on trial. The government is asking for the death penalty for all five men.

On the large screen in the Post Theater at Ft. Meade, the Guantanamo military commissions seemed to have all the trappings of a civilian trial in the U.S. Everyone was polite and respectful. Questions regarding legal issues were discussed in tedious detail. Protocols were carefully followed. Judge Col. James Pohl maintained tight control over the room. He stated several times that his courtroom was just like any courtroom. 

Most striking of all was the appearance of the defendants. Rather than orange jumpsuits, the men wore civilian clothing: loose white shirts or robes, scarfs around their necks or shoulders, and hats or headscarfs. Instead of being shackled to the floor by wrists and ankles, they sat unrestrained at the defense tables alongside their teams of lawyers. Guards in camouflage uniforms lined the wall nearby, but the accused were in the open courtroom with everyone else.

I was constantly aware that beneath the decorum of this cordial process lie stark differences between the U.S. legal system and the military tribunal version of justice designed to try Guantanamo detainees. Testimony obtained under torture can no longer be used against the men, but hearsay testimony and certain testimony obtained under coercion are admissible in this court — a far cry from U.S. rule of law. 

Moreover, the accused are not allowed to see classified evidence used against them or to know the identity of certain witnesses against them, and the prosecution has a role in deciding what witnesses the defense may call. The government claims these restrictions are designed to protect our national security, but the limitations make it virtually impossible for the defendants to challenge their accusers or defend themselves against the charges, two essential tenets of our justice system. Another legal principle missing from the Guantanamo military commissions is the independence of the judiciary: the judge and jury panels are appointed by a military official aligned with the prosecution (Prasow, A., Huffington Post, 5/9/12).

The pretrial deliberations I observed were excruciatingly complex — many related to whether this court meets minimum constitutional requirements. Hundreds of preliminary motions must be debated and decided before the actual case can begin.  Hours were spent debating a structural problem related to whether the privileged communication between clients and attorneys was adequately protected. Hidden microphones had been discovered in the huts where attorneys met their clients, and while court was in session, guards had seized confidential letters from prisoners’ cells. When the defense objected to these offenses in court, officials testified that the microphones were not turned on and confiscated letters were not read by guards. The judge discussed ways to prevent future occurrences, but seemed unable or unwilling to hold anyone accountable for these possible breaches in the protection of attorney/client confidentiality.  The shroud of secrecy was obvious.

The excuse of national security is being used to eliminate a basic foundation of democracy: transparency. If evidence used to convict a person is secret, if the accused cannot openly challenge the charges being made against him, if hearsay evidence is used, especially from a witness whose name is not divulged to the defendant, it is impossible for the person to defend himself. I came away convinced that justice cannot be served through special military tribunals at Guantanamo. And when justice fails, we all fail.

Helen Schietinger, retired nurse living in Washington, D.C., is active in Witness Against Torture, a grassroots organization working to close Guantanamo, end torture and indefinite detention, and hold officials accountable for torture of prisoners in U.S. custody.