[Peace-discuss] Guantanamo trials

Sun Feb 17 18:29:57 CST 2008

	Why Now? The timing of the Guantanamo
	trials is not an accident.
	By Charles Swift
	Friday, Feb. 15, 2008, at 4:28 PM ET

During the course of my career as a defense lawyer in the military, I've 
shrugged off many government conspiracy theories. Each time I heard one, I'd 
smile and say that one should never attribute to a vast government conspiracy 
acts that can be as readily attributed to mere government incompetence or 
accident. So, I did not initially assume any concerted plan or purpose behind 
recent activities at Guantanamo Bay.

But the government's latest moves in the ongoing battle over the legality of its 
detention policies are anything but incompetent, and they've forced me to 
reassess my initial conclusion: The decision to try six Guantanamo detainees 
using military commissions is very clearly part of a concerted effort to use the 
Guantanamo commissions to subvert the goals of justice and to maintain a veil of 
secrecy around its questionable interrogation policies.

Writing in Slate this week, professors Jack Goldsmith and Eric Posner argued 
that the military commissions at Guantanamo are dangerous because to be viewed 
as legitimate they will afford too much openness. The opposite is true. The 
commissions have been structured to keep the worst government misconduct behind 
closed doors, and the timing will ensure that members of the Bush administration 
either are long gone when the trials prove disastrous, or benefit from death 
sentences before they leave office.

Anyone who believes the trials will prove a referendum on water-boarding or 
other aggressive interrogation tactics is wrong. Last week at Guantanamo, the 
government claimed that members of the defense team of one detainee—Salim Ahmed 
Hamdan—could not interview Khalid Sheikh Mohammed and other high-value detainees 
because such an interview posed an unacceptable risk to national security. This, 
despite the fact that two members of Hamdan's defense team held valid security 
clearances—authorizing their access to the highest levels of classified 
information. These interviews would have been limited to the question of 
Hamdan's involvement with al-Qaida and would not have delved into scrutiny of 
how high-value detainees had been interrogated.

Simultaneously, Michael Mukasey, the attorney general of the United States, 
announced to the Senate judiciary committee last week that he would not 
investigate whether any criminal wrongdoing had occurred in interrogating these 
detainees since interrogators had acted pursuant to orders they believed lawful. 
Less than a week later, the government announced it was charging many of these 
same detainees—including Khalid Sheikh Mohammed—with capital crimes including 
planning and directing the terrorists attacks of Sept. 11.

On the surface, the government's three positions last week would appear to be 
uncoordinated and contradictory: Why, after going to considerable trouble last 
week to put the issue of water-boarding to bed, would the administration 
possibly turn around the very next week and reopen the issue to a protracted 
legal battle?

Because the issue of water-boarding will not be subject to a protracted legal 
battle. To the extent the upcoming military commissions address the issue at 
all, it will happen—as it is happening now—in a black box, cloaked in assertions 
of secrecy. For one thing, the Military Commissions Act passed by Congress 
permits the government to assert national security privilege where sources and 
methods of obtaining information are concerned. They can keep this evidence from 
the defense, so long as the military judge finds the sources and methods are 
classified. In Hamdan, the government has already asserted that this prohibition 
extends to the interviews of the detainees themselves concerning their 
interrogations, and as such, the government has already erected a wall of 
silence around the high-value detainees extending even to their interviews.

Without the testimony of their clients, any effort by the defense to pierce this 
wall of silence will be further stymied by the fact that the tapes of these 
interrogations were conveniently destroyed. Moreover, the defense won't be able 
to call the agents who questioned them to probe the interrogation methods used. 
They are barred from doing that both by the congressionally created national 
security privilege, and because the agents will undoubtedly take refuge in the 
right not to make statements that might incriminate them.

These legal obstacles would be formidable for any defense team. But the 
inability to claim their clients have been tortured is only the beginning of the 
defense lawyers' woes. Even if they could openly litigate the question of 
alleged torture, they lack the staff to properly defend their clients. While the 
office of the chief defense counsel at Guantanamo has always had significantly 
fewer assets than the prosecution, the passage of the Military Commissions Act 
left the office with even fewer resources. During the first round of 
commissions, the office's policy was to assign at least one full-time military 
counsel to each case and, wherever possible, an associate counsel. Current 
staffing decisions provide that counsel may carry multiple cases along with 
their new high-value clients. Just by way of contrast, the ABA standard for 
death penalty defense—adhered to in military courts-martial—is two full-time 
death-penalty-qualified counsel.

There was one other reason to bring these high-value detainees to trial now. The 
timing is perfect for the Bush administration. The MCA ensures that the appeals 
process can be finished in as little as 120 days, depending on whether the 
accused waives his right to appeal to the D.C. Circuit. And under the act, any 
sentence of death must be personally approved by the president of the United 
States before the sentence can be carried out.

This means that if any of the accused, like Timothy McVeigh, volunteer 
immediately for the death penalty, President Bush will be able to conclude his 
presidency by signing a death warrant. With a stroke of the pen, he can claim to 
have accomplished his goals and vindicated his policies in the war on terror by 
bringing the architects of Sept. 11 to justice. But even if the detainees try to 
put up a fight, the protracted legal battle will take place on some other 
president's watch. And when the dust settles, that next president will be left 
with the Hobbesian choice of either signing the death warrant (thus putting a 
stamp of approval of both the process and the policies of Guantanamo) or 
commuting the sentences of some of the most reputedly vile murders of our time. 
Either way, this administration is vindicated. Either way, the question of 
torture happens in secret. And either way, justice loses.
Former military defense lawyer Lt. Cmdr. Charles Swift represented Salim Hamdan 
in the case Hamdan v. Rumsfeld.

Article URL: http://www.slate.com/id/2184476/