Guantánamo Dispatch: Why Military Commissions?

I’m writing from Guantánamo Bay, where I’ve been observing pre-trial proceedings in the military commissions prosecution of the 9/11 defendants. Earlier this week, other NGO observers and I had the opportunity to meet for a general discussion with Brigadier General Mark Martins, the Chief Prosecutor of the military commissions. During our meeting, General Martins stated that as many detainees as possible should be tried in military commissions, even as he observed that that Article III federal courts are one of this country’s “crown jewels.” That prompts the question: Why military commissions, and why not federal courts?      

Defenders of the commissions often contend that battlefield exigencies justify less stringent evidentiary standards, such as for hearsay, which is information from second or third-hand sources, and which the federal criminal justice system treats as suspect. General Martins argued that the commissions’ weaker safeguards against hearsay are appropriate for statements obtained in the context of armed conflict. But as we know, the majority of men who have been detained at Guantánamo were not captured on a battlefield.  In response to my question about his anticipated use of hearsay, General Martins said that such evidence would constitute only a “fraction” of the case against the 9/11 defendants; however, he added, it “could be an important fraction.” But the commissions’ weakened protections mean that defendants could be sentenced to death on the basis of hearsay; this hearsay could also shroud the fact that an original statement was obtained by coercive interrogation, making it difficult for defense counsel to challenge the statement on the grounds of involuntariness. These rules present deeply troubling conflicts with federal practice, so — again — why military commissions? One answer is that they were designed to more readily facilitate convictions

As I learned this week, the flaws in the commission are staggering. For instance, although the presiding judge has recently issued orders that may give defendants more latitude in their ability to speak with medical experts about their torture, the American public’s ability to hear courtroom testimony about that torture is still limited in ways that violate the First Amendment. Another answer, then, to the question, “Why is our government relying on military commissions?” is perhaps that from their inception, they were designed to obscure evidence of torture

The byzantine restrictions on the ability of defense counsel to effectively represent their clients are another obvious problem. At this week’s hearings, it became apparent that because of the extreme slowness of security clearances for the defense teams, arbitrary deadlines, and the government’s prior interference with attorney–client communications, defense counsel lacked a meaningful opportunity to present mitigation evidence at a critical early juncture. As a result, a high-level military official’s decision to refer these death penalty cases to the military commission is in question. While some of these communication issues have improved, defense counsel are still litigating the reasonableness of the hours in which they have access to their clients. At Guantánamo, visiting hours typically end at 4:00 p.m. on weekdays and are nonexistent on weekends. By contrast, the Metropolitan Correctional Center, a New York City federal jail, permits pre-trial attorney visits 24 hours a day. When Cheryl Borman, counsel for Mubarak bin ‘Attash, confronted the commander of the detention facilities at Guantánamo with that fact, he responded: “What I have here is a detention facility that holds enemy prisoners removed from the battlefield. That's not at all the same as a correctional facility holding criminals.”  Except that, as Borman noted, the commander’s facilities hold many individuals who have never been charged with any crimes at all.

A final example from my time here: One defendant, Ramzi bin al Shibh, repeatedly asked for his confinement conditions to be reviewed. Mr. bin al Shibh told the judge that prison guards were keeping him awake at night by making banging sounds and vibrations in his cell — the government denies this — and his counsel argued that Mr. bin al Shibh has been so sleep-deprived that he’s unable to participate meaningfully in the hearings. This issue has come up previously, and Judge Pohl long-ago ordered Joint Task Force GTMO to stop any sounds and vibrations. Yet Mr. bin al Shibh’s complaints have continued.  Explaining this predicament, defense counsel noted that commission rules, unlike federal court rules, prevent Judge Pohl from holding Mr. bin al Shibh’s guards in contempt. 

I expected a discussion of alternative remedies and evidence collection to resolve this issue, but in a surprise maneuver yesterday, the government moved to have Mr. bin al Shibh examined for competency to stand trial, which brought dozens of pending motions to a halt. Now, it appears that pre-trial proceedings will resume in February at the earliest. As the ACLU has done since the start of the commissions, we will continue to monitor the proceedings at Guantánamo Bay and will report again once they resume.

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Vicki B.

I have only one question and it's directed at the U.S. Government: What the hell are you people trying to DO?
Make it impossible to ever get a conviction from ANY of them?

I know someone who died on September 11, and I'm acquainted with someone else who survived Tower 1 but not without becoming a severe burn victim.

I don't fancy waiting forever to get a trial for these people. It's bad enough that with every year, I find out something ELSE and have to relive the whole thing over again, last year's enlightenment being that the torture really DID happen and wasn't hyperbole or sensationalism on the part of reporters.

I just don't see why we should be put through anything else. I honestly no longer even know if I'm going to survive the next "nasty surprise" I discover about the case.


I don't care about the First Amendment at all. My reason for wanting to know is that I'm a family member of a Sep-11 victim and I was forced to WATCH while Tower 1 fell to the ground, KNOWing as I did that he was still trapped inside - and probably NOT alive but how do you know that for sure unless you were there.
Tom McGinnis was alive all the way up until he was crushed by thousands of tons of bricks. He's one of the people who worked at Carr Futures and was only there because of a meeting he was scheduled to have in Tower 1.

How the hell can the government DO this shit to us. First they refuse to show us the physical evidence that Osama bin Laden was really dead by saying we're not going to be allowed to see the photo of it.
NOW they're saying we don't get to be involved in a trial for people that could have HELPED do the whole thing.
I'm mad as hell about it and think the government's treating us like garbage.

Now let me put on my big surprise face to learn they must think we're common nobodies. (sigh)

from Richard, V...

I see they're still applying the same BS to THIS war that they did in Vietnam, but I suppose I have no idea why that ought to surprise me. One of the major players in this perfect fiasco is using Richard Nixon's Foundation to promote his book on his own heart condition. If ever one war pig needed to choose another to promote his work, Richard Nixon certainly would qualify as Cheney's choice of Master Pig.
Richard Nixon told anybody who would listen to his 1968 campaign promises that he had a plan to get us out of Vietnam, failed to come through with it until well after his SECOND term was in motion; and it's debatable whether he even succeeded at actually doing so or if he's getting undeserved credit for it. People in the 10's of thousands died in combat in Vietnam and many more than that were wounded or scarred for life from the combat that was seen from 1968 to 1972, when they began pulling troops out of Nam. Including two of the best friends a guy could ever have; one died in a napalm attack, the other in a firefight. Including myself.
To my knowledge Mr. Nixon never accounted (at least not in this life) for his part in the police action that was Vietnam. Few people probably know or remember that our government never declared Vietnam a war, not during the time it was happening. They called it "The Vietnam Conflict," just as they now refuse to call Iraq and Afghanistan war but have to go with the flashy term of "war on terror."
Although at least with this war they actually use the WORD war when discussing it. It must have taken them over two whole decades to admit we fought a war in Vietnam; regardless of nail-formation battles, all-night treks through the jungle and firefights that lasted through the night, which are obviously war tactics and survival skills, nobody called it a war until decades later unless that person also served time in the bush.
To not know what really happened in Nam instead of what we're taught in history classes, would be bad enough but I recently learned more disturbing news about it. People who were born during the Vietnam War learned nothing about it in school, because they refused to teach students anything to do with what actually happened there. Even in a general way.
My best friend's former wife knows absolutely nothing about the era of the Vietnam War. She informed me of this a few days ago when I asked, "Well what did they teach you in History class about it?"
"Nothing," she replied. "All the teachers in my school had been told they weren't allowed to teach it. One of the teachers said that was because the history was too recent. I didn't really question it because I didn't know it was something that needed further clarification. The only person who refused to listen to that rule was Mr. Hup, who actually went to Vietnam and was an Intelligence Officer there. But he said barely anything about it beyond the fact that he was an Intelligence Officer and that they didn't have a hero's welcoming return, and he said it only to me. He was our Guidance Counselor."
I would find that information incredibly sad if I were the kind of person who responded that way. But I'm more of an action-taking person, so I told her I would tell her in as unbiased a way as possible what actually happened. Unfortunately, I can only speak for the side I was on, which was a person who was sent to do Nixon and Company's dirty work while they sat at home never having to see what they were telling us to do.
Yesterday an article was published about Cheney admitting his part in Iraq and torture and saying he "has no regrets, would do everything the same if he had it to do over."
This rightly distressed my friend's former wife, so I flat-out told her why I think this jackass can speak that way. I said "Well of COURSE he has no regrets. He never did any of his own dirty work. He sent the soldiers to do it for him."
I told her the same was true of Nixon; they sent US to do the dirty deeds FOR them.
Then they denied Veterans further benefits. A bill for Veteran's benefits was struck down by every Republican lawmaker in the Senate. Those being some of the same people who sent this country's soldiers to do their damn dirty work.
You don't send someone out to do your damn dirty work, then deny them financial aid when they need it. Especially the disabled veterans, some of whom can't walk because they lost their legs in the war.
I think I could cheerfully demonstrate survival and hand-to-hand combat tactics using Dick Cheney as my model, because right now I would have no problem dropping him like a rock. No regrets either.

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