What Happens to Justice in a Perpetual War?

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Every aspect of Guantanamo Bay is about control of information – from the high-tech courtroom with its delayed media feed, to the secretive prisons, to the location itself. The reflexive secrecy is sometimes petty, like when a member of the guard force last week confiscated the stadium glasses the sketch artist had been using for three years ("no ocular enhancement"), or when a guard told the reporter from Germany's Der Spiegel that his crude scribble of the courtroom layout was classified. The drawing was later returned with "Confiscated 17 June 2013" and initials scrawled at the bottom.

At other times, issues regarding secrecy and openness are foundational – as illustrated by the total breakdown in proceedings when defense attorney Commander Walter Ruiz questioned former prison commander Admiral Woods about the CIA's role in determining a process to search attorney/client communications, and in intelligence gathering on the island generally. "[One of] the entities on the island at the time that you were the commander would have included the CIA, correct?" Ruiz asked. Joanna Baltes, a civilian prosecutor who specializes in handling classified information, immediately objected on the grounds of relevance. "Is that the real basis?" asked the military judge, Army Col. James Pohl – hinting that the real reason was the prospect of sensitive information being discussed in open court.

Ruiz, Baltes and another prosecutor had a brief, inaudible meeting in the middle of the courtroom, something like a huddle on the pitcher's mound in a baseball game. During the mini-conference, a prosecutor reportedly whispered to Ruiz, "You're playing with fire." Minutes later, Ruiz said, "I will not be threatened by the prosecution." Ruiz said this prosecutor later apologized; Brigadier General Mark Martins, the lead prosecutor, characterized the remark by a member of his team as a "genuine caution."

Ruiz had previously spoken with several members of the press about his single greatest complaint about the military commissions: By offering a rigorous and adversarial defense in this trial, he worries that he is giving this process an undeserved veneer of fairness. "Probably the most offensive thing," he said, "is at the end of the day, I may be the biggest legitimizer of this system."


Martins is the sixth lead prosecutor at Guantanamo Bay, and the individual tasked with convincing the country and the world that the controversial military commissions system updated by Congress in 2009 is in fact legitimate. Martins understands better than anyone that success in this goal is at least partially about public perception, and perception is about controlling information. He makes himself accessible to the press, but keeps his answers narrow and on-message.

What has the biggest surprise been since taking on this role? "I don't get surprised easily," says Martins. In October, a reporter asked about his feelings on that week's proceedings. "I don't tend to experience highs and lows in litigation," he said. (He has also shown a dry sense of humor from time to time. When Admiral Woods characterized admirals as being like generals, only better, Martins – himself an Army general – replied, "Objection, your honor.")

Perhaps it isn't surprising if General Martins and his team seem to be obsessed with secrecy. After all, that obsession isn't limited to them – it's a government-wide phenomenon. McClatchy recently revealed an Obama administration program called Insider Threat Program, an anti-leak initiative that directly equates disclosing information to reporters with espionage. The land-line phones in the press room at Guantanamo say "use of this telephone constitutes consent to monitoring"; but the secret NSA surveillance programs revealed by leaker Edward Snowden suggest that the differences between here and the mainland are more a matter of degree than category.

The mad logic of Guantanamo and the modern surveillance state both rest on a common foundation: The U.S. government's ongoing commitment to an endless state of war. Talking about this with a young person like Emma Barker-Lasar can be revealing. Asked if she feels like she has grown up during wartime, she hesitates. "It feels like something else," says Barker-Lasar. "We're obviously at war. But we're so far away from it, we're totally detached."

Just this month, a U.S. drone strike in Yemen killed a 10-year-old boy – about the same age Emma was when her great-uncle died on 9/11. When will it end? A top Department of Defense official who testified recently before the Senate Armed Services committee predicted that the war against al Qaeda and its associates could last another 20 years. By then, Emma Barker-Lasar will be almost 40 years old.

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