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Lipstick on a Pig

Ben Wizner,
ACLU Speech, Privacy, and Technology Project
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April 26, 2006

The Guantanamo Military Commissions that recommenced today the first war crimes tribunals conducted by the United States since Nuremberg have so far lacked the gravity, dignity, and sense of history of those proceedings. During my last visit here, I had an aimless but interesting discussion with a Canadian journalist about whether the improvised and error-filled proceedings we had just witnessed were better seen as tragedy or farce and that was months before one of the detainees arrived in court wearing an orange tunic dyed the color of prison jumpsuits and suggested that he be addressed as “Count Dracula.”

But the Commissions are similar to Nuremberg in a critical respect: in a very real sense, it is not just the detainees who are on trial here, but the Commission system itself. There is no clear precedent for what the U.S. is attempting here, and the legitimacy of this enterprise depends in large part on whether the U.S. can demonstrate to the world that it can provide justice to those it has accused of war crimes.

Mindful of the need to communicate that message to the world, the military has constructed an elaborate public relations apparatus. Members of the press (and, to a lesser extent, human rights monitors) are given tours and briefings. Every morning, the public relations officers read the day’s press accounts of the Commission proceedings they even read our blogs to assess whether the military’s position is being fairly represented. They are polite and reasonably accommodating. They do a good job. But their assignment is impossible.

As the saying goes, you can put lipstick on a pig, but it’s still a pig. It’s fair to say that the Commission proceedings have been a public relations disaster for the U.S. not because the congenial military spinners lack skill, but because they have such a lousy product to sell. When former members of the prosecution characterize the Commission system as a “fraud on the American people”; when a Commission member, sitting as judge and jury, concedes under questioning that he is unfamiliar with the Geneva Conventions; when the Commissions feature the extraordinary spectacle of a shouting match between two colonels in the U.S. military one the Presiding Officer, the other defense counsel over the lack of clear guidelines for these proceedings; the problem is not one of communications.

This morning’s proceedings in the prosecution of Saudi citizen Jabran Said bin al Qahtani, accused of conspiracy for his alleged participation in al Qaeda explosives training, will hardly change the narrative. Once again, in what has become something of a broken-record routine, the proceedings were dominated by issues of counsel. Like all accused detainees, Mr. al Qahtani is represented by a uniformed military officer even though he made absolutely clear today that he doesn’t want such representation. Indeed, al Qahtani showed nothing but contempt for the proceedings themselves, and chose not even to return for the afternoon proceedings. “You may sentence me if that is God’s will,” he said quietly. “A nation that is an enemy of God is not a leader and cannot be a leader.” Told by the Presiding Officer that he would be better off with a military defense lawyer, who would have access to classified evidence that he, the accused would not, al Qahtani replied, “This is nonsense.”

This presented familiar problems for al Qahtani’s military defense lawyer, Lt. Colonel Brian Broyles. On the one hand, he explained to the Presiding Officer, he believed that his client would be much better off with a vigorous defense. On the other hand, he was doubtful that his ethical obligations permitted him to provide that defense against the wishes of a client. He requested a delay in order to seek guidance from the State Bar of Kentucky and the Standards of Conduct office of the JAG corps. He was given an hour.

After a one-hour recess, Broyles reported that he had spoken by telephone to officials of each entity, and was told that he should “present the best defense that [he was] capable of giving” under the circumstances. He disagreed with those verbal opinions, and requested additional time to obtain written confirmation. The request was denied, and the rest of the day was given over to Broyles’ voir dire of the Presiding Officer. Al Qahtani’s chair was empty and, if the Supreme Court permits these tribunals to continue, is likely to remain so for the duration of his trial.

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