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A Nightmare for Justice in the Middle of the Caribbean

Ahilan Arulanantham,
Senior Counsel,
ACLU of Southern California
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June 30, 2010

I’ve come to Guantánamo as an ACLU representative to observe a Military Commission hearing for a detainee named Noor Uthman Muhammed. I’m one of four “NGO monitors” who has come down for them — the others are from Human Rights Watch, Human Rights First, and the National Institute for Military Justice. I can’t get over the eerie strangeness of having this horrid military nightmare on such a pretty Caribbean island. The only comparable experience which comes to mind, oddly enough, is visiting the Sri Lankan state of Jaffna in December 2004, with all the barbed wire and checkpoints mingling with stunning beaches and beautiful birds.

The process for performing our role as “NGO monitors” has been somewhat frustrating. For all of the talk about transparency under the Obama administration, it is striking that Guantánamo’s detainee camps remain shrouded in secrecy. We were refused a tour of any part of the area where the detainees stay. In fact, our “escort” — one of the soldiers assigned to take us around the base (more on them later) — told us that even he could not get into the camp because only the Marines are allowed there, and that another soldier had recently been fined for accidentally running (while exercising) into the camp area. Given that the president’s review commission recently determined that approximately 120 of the 180 or so remaining detainees should be released, it is striking that the area remains so shrouded in secrecy that not even some soldiers, let alone NGO monitors, can go to see any part of it, including the part where those eligible for release now live.

The commission itself thus far seems to be equally opaque. We managed to speak with the defense lawyers, but our request for the email addresses of the prosecutors (so that we could request a meeting with them before the hearing — a remarkably modest request) was denied by our escort and his supervisor. They told us that we can get the prosecutors’ email addresses at the hearing itself. I hope we can do that, but I’m not optimistic, as I’m told we will be in a separate viewing area, outside the courtroom itself, with audio piped in. One of our escorts told us that it would be like watching a really bad Kung Fu movie, because there is a long delay on the audio feed.

The escorts are an interesting part of the Guantánamo experience. We get a new one each day, and so far they have all been kind and courteous young soldiers. They are required to be with us at all times when we are out of our tented area — which is hilariously named Camp Justice. This is taken quite literally — if we go to the gym, the escort works out with us, if we go to Subway to get sandwiches, the escort comes in with us. But the rules, like the escorts, seem to change each day. Monday, our escort allowed the four NGO monitors to split up — two of us watched the World Cup at Starbucks while two others went back to camp to rest. (You can guess which group I was in). But yesterday the rule had inexplicably changed, and our escort deemed splitting up impermissible.

I get the feeling that the man at the center of my trip — Noor Uthman Muhammed, whose commission hearing we have come to observe — must have a good sense of the arbitrariness of which I have seen just the smallest, tiny piece. Publicly available information states that he was arrested in March 2002, but not charged until six years later, in May 2008. He waited three months after that for his first hearing, only to have the charges dismissed — apparently because one of the prosecutors involved with the case quit and then alleged there had been misconduct involved in his case. But then the charges were refiled in December 2008. As of today, it’s been well over seven years of detention at Guantánamo for Muhammed, but his trial date has yet to arrive.

Wandering around Guantánamo, one gets a sense of the demographics here, which provide their own interesting irony. There is a whole separate living quarters for the mostly Jamaican and Filipino workforce who staff practically everything here — the restaurants, the gym, the convenience stores, and even the official center for obtaining Internet access. They live apart from the soldiers, but work amongst them. Yes, Guantánamo is a land of immigrant workers. It is also a land of soccer — we drove by a league soccer match set up between two teams. It was sunset, so suddenly all the players stopped while someone played a military song. Our escort told us that they do that every day at sunrise too — everyone stops what they are doing while the national anthem is played. I remember a similar practice, from when I was traveling in Egypt…

The fact that immigrants help to make Guantánamo run felt particularly ironic to me as I read the defense’s latest motion (PDF) in Noor Muhammed’s case, which argues that the commissions are unconstitutional because they can be used only against noncitizens, resulting in discriminatory treatment. (What makes the treatment discriminatory, by the way, is the decidedly second class procedural rules used by the commissions, which would never be used in a normal criminal trial. For example, the commissions allow, in some instances, the use of coerced statements made by the defendant against him during the trial, on the theory that the protection against self-incrimination applies only to statements elicited at trial, not to pretrial statements.) The motion itself is extremely well-written. I would be proud to have written a motion that reads as persuasively as this one, with its sophisticated treatment of alienage discrimination law and extensive use of the government’s own statements and legislative history.

It’s too early to tell whether the Military Commission judge who presides over this motion will give it the respect it deserves, or instead feel bound — in practice, if not in theory — to reject it because it strikes at the very heart of the Military Commission system Congress created. Not to mention the fact that the premise of the motion, which is that the due process clause of the Fifth Amendment applies to people detained at Guantánamo, is a legal claim that the commissions have somehow — how could this be possible? — have failed to decide, despite having held detainees here for seven years.

I am not hopeful — as I remember it, the endings were generally quite predictable in those bad Kung Fu movies.