On top of that, the week ended with defense attorneys openly questioning whether their conversations with clients were being secretly monitored. “We have significant reasons to believe we have been listened in [on],” David Nevin, defense attorney for KSM said at at press conference. “After this week,” said defense attorney James Connell, “the paranoia levels have kicked up a notch.”
If none of this sounds familiar, you can be forgiven. In the Obama era, news about GTMO (the military doesn’t use the “i”) is either unwarrantedly optimistic – we’re closing it, we swear – or, more frequently, totally ignored. And, quite tellingly, rather than close the prison, Obama has instead decided to close the office responsible for determining how to close the prison.
Last week the government held a round of what’s called pre-trial motion hearings, which establish the specific rules of a trial. Given the almost complete lack of precedent in military commissions – more on that shortly – this process is even more important than it would be in a normal court.
The cast of characters in this would-be Agatha Christie play are numerous and colorful. At the center are Khalid Sheik Mohammed and his four co-defendants, all of whom stand accused of war crimes and face the death penalty. They’ve been detained at GTMO since 2006.
The attorneys representing the accused are an impressive posse of civilian and military lawyers given the difficult task of navigating a legal universe that, despite the government’s claims to the contrary, often feels like it’s being created before our very eyes.
Brig. Gen. Mark Martins is the lead prosecutor and the man most singularly tasked with defending the legitimacy of this young legal universe. Gen. Martins is the picture of the military’s self-perception. Tall, disciplined, and by all accounts extremely intelligent, he’s also stoic as a Brit. He once said, after being asked his feelings on a week’s events, “I don’t tend to experience highs and lows in litigation.”
Overseeing the endeavor is Army Colonel Judge James Pohl, a man with a self-deprecating sense of humor and a passing resemblance to Bill Murray.
The final character in this drama is the new legal universe itself. Military commissions, as GTMO trials are called, are a confusing mix of civilian court, which is overseen by the judicial branch, and courts martial, the justice system for members of the military, which is under the purview of the executive branch. Military commissions are similarly overseen by the executive branch, though Gen. Martins is quick to point out any similarity they share with civilian court. Congress created military commissions in 2006, and updated them in 2009.
Last week was supposed to be boring. But then lightning struck, the lights went out, and when they came back on there was a dead body in the middle of the room – metaphorically speaking, of course. The mystery had been set in motion.
It’s hard to imagine the week going any worse for the government. On the first day of proceedings, a previously unknown, outside entity reached into the courtroom like the hand of god and cut the audio/visual feed to the media – which is on a 40-second delay – apparently surprising even the judge. The judge and his assistant, a court security officer (CSO), have always had the authority to cut the feed, but they didn’t hit the button. Neither had the CSO’s assistants.
When the button is pushed, a red light that looks like a hockey light goes off. That has now happened three times including the most recent instance, and each time the judge ruled the censoring inappropriate, so the hidden testimony was put on the public record.
So who was that outside entity? The open secret among everyone on base is it was the CIA, though no one can confirm that on the record because the information is classified. That’s just one of many instances where “classified” doesn’t mean secret as much as it means controlled.
Whoever secretly pushed the button is known as an Original Classification Authority, or OCA. OCA is not a position, rank, or job title. It’s a term to describe someone, usually fairly high-level though not always, who “owns” the information that’s classified, and is able to declassify it. There are also OCAs in the DoD, FBI, NSA, and other government agencies, and we don’t know if any of them also had access to the kill switch.
Whether or not the judge knew an outside someone – or several someones – had the power to cut the media feed prior to it actually happening is unclear. Once the feed came back on, he certainly seemed surprised, and furious, about what had happened. “[N]ote for the record, that the 40-second delay was initiated, not by me,” Judge Pohl said when the feed came back. “I’m curious as to why.” He continued, “if some external body is turning the commission off under their own view of what things ought to be … we are going to have a little meeting about who turns that light on or off.”
But it’s also possible that he wasn’t totally aware of or familiar with his own rules for shutting court to ensure classified information doesn’t “spill” accidentally.
What’s certain, however, is that the defense was not aware that an outside entity could shut down the court. “I would like to know who has the permission to turn that light on and off, who is listening to this,” defense attorney Nevin said once the feed returned.
Many at the prosecution table, however, seemed non-plussed. Prosecutor Joanna Baltes actually offered to explain to the judge what had happened in his chambers, away from the public. James Connell, defense attorney for Ammar al-Baluchi, said that the OCA’s cutting of the feed on Monday, “demonstrates a level of involvement by the OCA on the prosecution side that we had never previously seen.”
Judge Pohl issued a ruling at the end of the week demanding the government disconnect any system that allows an outside body to trigger the hockey light and cut the media feed, but as lawyers like to say: you can’t unring a bell. The damage caused by an independent entity that is widely recognized to be the CIA temporarily shutting court – to the apparent surprise of everyone but the prosecution – will be difficult, if not impossible, to repair. Making matters worse for the government, defense attorney Cheryl Bormann characterized the discussion that triggered the closing as “innocuous.”
The location of the OCA could be important as well. A reporter for the Miami Herald asked defense attorney David Nevin if there could be constitutional implications if the OCA killed the feed from US soil. Nevin said there almost certainly would be, though he reiterated that the government has provided no information about who the OCA is or where they were.
Whether or not the Constitution applies at Guantanamo Bay remains an unresolved matter. Judge Pohl denied a defense motion to presume the applicability of the Constitution, saying instead he would review the matter on a case by case basis, as the prosecution argued was appropriate.
Brig. Gen. Mark Martins, the lead prosecutor and primary advocate for the legitimacy of the commissions, constantly extols the openness of the proceedings and the fairness of the process. He’s in an unenviable position, and this week only made his job more difficult.
The procedures for military commissions are unclear, especially when compared with civilian court. In response to a question I asked regarding whether or not the case could effectively be tried in a regular courtroom in the United States, Gen. Martins reiterated that Congress had ruled GTMO detainees couldn’t be transferred to US soil. “The case is in this jurisdiction, this is the only place it’s gonna be tried,” he said at a press conference at the beginning of the week. “That doesn’t mean it’s gonna be unfair. It urges us on to make [military commissions] laudable, fair, and accountable.”
Despite Gen. Martins’ reassurances, the five defense teams are united in their criticisms of the entire system as fundamentally flawed, and possibly susceptible to outside influence. “Who is the master of puppets?” Commander Walter Ruiz asked at the end of the week in a wry homage to Metallica, suggesting that there are hidden players pulling the strings of the case. Ruiz also said he believed the killing of the media feed on Monday was in direct violation of the rules governing closure of the court. The judge’s order removing the outside entity’s ability to kill the feed is further evidence for Ruiz’s claim.
The defense is also united by a troubling concern that goes to the very heart our our idea of justice: they claim to have reason to suspect their private conversations among themselves and with their clients may have been secretly recorded. Defense attorney David Nevin introduced an emergency motion on Thursday morning to abate – or halt – the proceedings until the question of whether or not attorney/client privilege has been compromised has been adequately explained and resolved. Judge Pohl saw the importance of the motion, and moved it to the top of the pile.
All the tables in the courtroom have desktop microphones with mute buttons on them. On the final day of the proceedings, defense attorneys James Connell and Lt. Col. Sterling Thomas both bent their microphones away from them, pointing them at the floor. “The question of who listens to microphones from the defense tables is still very much an open question,” Connell said, regarding the motion defense attorney Nevin filed on Thursday morning. A note on the courtroom door reads: “Assume microphones are live at all times.” During a brief recess on Thursday morning, the five defense teams huddled against the wall, away from their desks for fear of secret monitoring.
If it is true that defense attorneys’ private conversations, among themselves or with their clients, have been surreptitiously recorded it would a catastrophic blow to a system who’s fairness is constantly under scrutiny. Even if that information hasn’t been provided to the prosecution – Gen. Martins has stated unequivocally that his team has not been given any privileged information – the ramifications would be hard to overstate. “If attorney client privileges are being violated, and it’s not clear that is the case, it would be a serious violation of one of the most important fundamental protections provided in the US criminal justice system and would have serious implications for the validity of these proceedings,” Laura Pitter of Human Rights Watch wrote in an email.
The first evening we were there, security officials gave reporters a tour of the Expeditionary Legal Complex – the courtroom and nearby holding cells. There hadn’t been a tour in years, as near as I could tell. DoD officials repeatedly stressed that they were trying to make the GTMO experience more transparent; this tour was one example of that.
Inside the courtroom a security expert said, “Everything said in here is recorded.” Ironically, journalists weren’t allowed to bring recording devices inside. Our tour happened before the defense’s allegations of secret monitoring, and one wonders whether that security expert would’ve used the same phrasing had the tour been given at the end of the week.
Beyond the defense’s specific questions, general suspicions of surveillance are common at GTMO. Some people will say off-handedly that they have no idea if their phone conversations or personal email are actually private, or are subject to monitoring. I’ve certainly wondered about that, and I doubt I’m the only journalist who has.
As the military commission system begins to take shape, slowly, I’m reminded of the artificial intelligence phenomenon of the uncanny valley. That theory states that as the appearance of non-human entities comes to resemble real humans closely but not exactly, the observer responds with revulsion.
What’s happening at Guantanamo Bay now is something that could be called uncanny justice. As the proceedings inch toward what defense attorney Nevin suggested was merely the “appearance of justice,” the military commissions don’t become more pleasing and comforting. Rather, they’ve taken on a ghastly, unfamiliar complexion, like if the Department of Justice had a wax museum wing.
It’s not only human rights groups that are critical of the military commission system. Phyllis Rodriguez’s son Greg was killed on September 11th. She attended the week’s hearings along with several other family members of victims. She’s against the death penalty, and so was her son. She characterized the attacks on 9/11 as “political opportunities to get into the Middle East.” On numerous occasions over the week, she said she’d prefer that the trial took place in regular civilian court.
The secrecy and civil liberties concerns that have arisen in the United States since 9/11 bother her, too. “Our rights have been compromised,” she said, standing in a gigantic hangar that houses the media center. “We live in fear. It reminds me of the Cold War and McCarthy era.”