Eleven years after the United States' establishment of the detention center at Guantánamo Bay, more detainees have died imprisoned than have been convicted of wrongdoing under the military commission system. The absence of a speedy trial – a basic right denied defendants trapped in indefinite detention, not to mention a discouragement to families of victims seeking closure – is only a fragment of what's flawed about these untested offshore war courts. As another round of pretrial hearings comes to a close in the case against alleged 9/11 mastermind Khalid Shaikh Mohammed and his four codefendants, the government's efforts to avoid accountability on the issue of torture continue to mire proceedings in frustration and legal uncertainty.
At issue this week were defense lawyers' claims that intelligence and security surveillance measures have violated the sacrosanct principle of attorney-client privilege, obstructing their ability to effectively represent the accused. In late January, courtroom audio feed – which runs on a 40-second delay to media and observers seated behind Plexiglass – was abruptly cut off by an unidentified third party during an indirect reference to CIA black sites, surprising even military Judge James Pohl. This hidden-hand censorship raised questions: Who was listening in? And what exactly could they hear?
In response to a defense investigation, the courtroom's technology director, Maurice Elkins, took the stand on Tuesday, revealing that not only had mysterious government officials ("original classification authorities") been screening audio of the proceedings with a finger on the kill switch, but the 32 microphones installed in the high-tech courtroom were sensitive enough to pick up communications between attorneys and clients, even when personal mics were set to mute.
Doubly alarming was the assertion of defense attorney Cheryl Bormann that the cell in which she met with her client – Walid bin Attash – was bugged with a listening device inside what looked like a smoke detector. Army Col. John Bogdan, commander of detention at Guantánamo, testified on Wednesday that he'd only learned about the technology a week prior. He was not briefed on the surveillance system when he took the post in June, nor when the devices were repaired and upgraded in December. Bogdan assured the court that his guards were never instructed to monitor confidential meetings, but defense attorneys maintained that such secretive operations erode crucial trust in communication with their clients.
Disorder mounted on Thursday morning when Attash refused to sit down in court, objecting to a sweep of his and other defendants' holding cells while they attended the hearings, during which confidential legal documents, books and other items were seized. Despite previous security clearance, the paperwork appeared to have been confiscated as a result of an "ever-changing" set of rules governing document approval and a high prison guard turnover. In an oft-echoed sentiment, defense attorneys pleaded with Judge Pohl to require coherent protocol based on legitimate national security concerns.
In the middle of the mess is the Obama administration's determination to hold defendants accountable for the atrocities they allegedly caused, while cloaking in secrecy the crimes of rendition and torture the U.S. subjected them to. Detainees' own stories of how they were captured and interrogated are "classified," and how related evidence is handled has yet to be definitively determined in the makeshift military tribunals. As Daniel Fried, the special envoy for closing Guantánamo, is reassigned, and presidential advisor John Brennan awaits confirmation as director of the CIA, five years after his support for harsh Bush-era interrogation techniques derailed his chances for the position in 2008, it's time to think about what it really means to – in President Obama's words – "look forward, not backward."