GITMO: The Same Old New Opaque Transparency

Last week we wondered what the appointment of the “new and improved” Gitmo Commander, Army Brig. Gen. Mark Martins, would mean for the military commission system and upcoming big terror trials for the likes of al-Nashiri and KSM, and what it meant for the press coverage. Well, predictably, it appears to be rendering the same old same old.

Carol Rosenberg brings us the latest:

The website was unveiled last month to rehabilitate the reputation of the Guantanamo war court. So far it’s a hodgepodge of secrecy _ and still a work in progress, according to Defense Department officials, while clerks, lawyers and the intelligence community haggle behind the scenes over what the public can see.

It’s been more than a year in the making and the Pentagon has yet to reveal its cost. Every screen bears the slogan “fairness, transparency, justice.”

But a review of the content has found that it pointedly leaves out some of the key controversies that have bedeviled the war crimes trials, from allegations of torture to a comparison of the Seminole Indian tribe to al Qaida.

Disappointing, to say the least, but par for the course for the Gitmo experience. And, let’s be clear, it is not that they just haven’t had time to “work the kinks out” as this project has been underway for well over a year. And there is fantastic experience to draw from in the way of the Federal Court system’s PACER system. There are simply not that many detainees in total, much less defendants, to be entered into the system. The still dysfunctional and unusable system is the result of indifference, if not outright intent. As there will be no trials until next year at the earliest, maybe the situation can be remedied in time; but that will require the actual intent to do so. And that seems in short supply.

What I suspected would be the case has now been confirmed, namely that the “broadcast” of the commission trials will be a restricted joke. Again from Carol and the Miami Herald:

Pohl, the chief military commissions judge, assigned himself to the case, according to Defense Department sources, and chose the late October date to give the government time to finish a close-circuit feed site at Fort Meade, Md., outside Washington, D.C.

Up to 100 reporters could watch the Guantánamo arraignment on a 40-second delay under the new Fort Meade hook-up being inaugurated with the Cole trial to ease demand on a crude media tent city at the remote Navy base in southeast Cuba, which can accommodate 60 journalists.

There also will reportedly be a feed for a select few of the victims’ families. But zilch for the broader press, and nothing for the public. Just as with the suggested benefits and propriety of transparency on the targeting of American citizens for assassination, it would place the United States on a higher moral plane and demonstrate resolve and ethics to demonstrate to its citizens, and those of the world, that it is indeed providing a fair and just trial process for the detainees.

Necessary steps can easily enough shield that which must be, there is no reason not to show what this country stands for. Open and public justice is the best justice. Unless, that is, what we really stand for is not particularly just.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
7 replies
  1. MadDog says:

    And only tangentially OT, lest we think the US killing of Anwar al-Awlaki was just a “one-off” in Yemen, this from the AP:

    US drone kills 5 al-Qaida militants in Yemen

    A U.S. drone strike killed five al-Qaida-linked militants in southern Yemen on Wednesday, Yemeni officials said.

    An official, who spoke on condition of anonymity according to military rules, said the dawn strike targeted militant hideouts in the al-Arqoub area east of Zinjibar, capital of Abyan province…

    [snip]

    …U.S. drones regularly hit targets in Yemen…

  2. rugger9 says:

    Remember when Rummy told us that these were the “worst of the worst” and released something like 70% of them back to the ME? Or the Uighurs, still there, who will be shot on sight in China, and were never terrorists in the first place [along with many others who never should be there, like the Canadian kid]. The WOTW was floated as the reason why the civilian trials were too dangerous under Shrub, so military commissions were necessary.

    Never mind that Clinton prosecuted the WTC 1993 bombers in civilian court. Never mind that the military court-martial system is already in place. The Bu$hies wanted Soviet-style show trials where the verdict is already determined at the start. Note from history that the Sovs stopped the show trials once they realized the rest of the world had figured out the game, and filled their gulag in secret afterwards.

  3. Mary says:

    The inaugeral Cole commission. This is how precedents get set.

    They have picked a case where, if the allegations are true, the defendants really did conspire to kill – they weren’t camp cooks for the Taliban or drivers or chefs from Mayfair or Germans with the “wrong” name, although the precedents set in the trial will govern those same kinds of people.

    They picked a case where the actions at issue predated the AUMF – making the power behind the precedents being set one that rests solely on Executive power, without the color of the AUMF. But, see the facts – these are guy everyone wants to get. The precedents set will apply for those who were associated, prior to the AUMF, with al-Qaeda (as long as we aren’t talking US members of Congress and CIA pals) no matter what they did after that association.

    They picked a case where clearly criminal acts were perpetrated by the government actors, with government DOJ approval or de facto agreeement to turn a blind eye, and those acts included things like family death threats, repeated drownings, threats with a drill, etc.

    They picked a case where the person in the possession of the government actors was subject to an indictment in a US court, but instead of rendering him to the jurisdiction of the US court, the government deliberately kidnapped him to destinations where it believed it could engage in criminal acts against him, unimpeded.This is the precedent being set for government activity. But everyone wants him to pay.

    They picked a case to argue for commissions to establish a death penalty, even while he is wanted for questioning by Poland in connection with their investigations into torture by the US gov on their soil. Obama and his cats paws are Khadafy; Nashiri is al-libi. His testimony dies with him.

    They waited until the man who is going to be the last word on the conduct of the Commissions is the same man who promised the CIA torturers and killers at issue in Nashiri’s trial that they would be protected and that taking a drill to a naked man who has been repeatedly drowned and kidnapped and kept in isolations under a barrage of mental and physical attaacks and had the lives of his family threatened (btw, any word on KSM’s children and wife – notsomuch) – the guy in charge of the Commissions, Panetta – or even Obama if you walk it all the way back – have blythely reassured the perpetrators of those acts that such activities were in “good faith” and would not be punished. And then Panetta and Obama asked these same men and women to go and kill civilians in Pakistan for them. This is what ultimately controls the commissions.

    They picked their best facts to make the worst law. And everyone contributing to the fiasco at GITMO knows exactly what is going on – what they are doing and what they have done. The weak piffle from people like Goldsmith about possibly taking the death penalty off the table doesn’t come from any real regret over their own roles, former -present – future. They can try to both claim the killing fields and distance themselves from them, but when their lives reach an end, the ultimate headstones will carry of the names of all that they helped to kill and maim and first on the list with be “Homeland f/k/a the UNITED States of America”

    Bad facts, bad law is the saying, but really it leaves out the most important factor. Bad facts – bad men as arbitors – bad law.

  4. Mary says:

    @rugger9: And let’s not forget that the bombing has had a US court look at it already. It’s just that, well, hmm, how do I say this? The US court that had a full and open hearing in which the US gov could have had its way – that court determined that the Sudanese government was responsible for the bombing.

    http://www.msnbc.msn.com/id/17598388/

    So, was Nashiri a part of the Sudanese army or a Sudanese covert actor? Have we declared war on Sudan? Was the bombing an act of belligerency by both the Sudanese govt and al-Qaeda and Nashiri worked for both? If the Executive branch doesn’t like the Judicial branch’s determination that the Sudanese government is responsible, can it just roam the world looking for others to put to death before a commission? Nashiri was in US custody during most of the trial – where is his testimony. I think the case is being appealed as well – is anyone preserving his testimony for that case?

    Whatever – the Jack Goldsmiths and John Yoos and Jim Comeys and Steve Bradburys and Alberto Gonzales-s and David Addingtons have what they wanted or at least what they weren’t willing to object to and I hope they sleep well with it. Ok, no, I don’t hope that, but it’s not as if they are going to lose any sleep over it anyway, imo. Money and power and position manage to waterboard a conscience into submission pretty easily.

  5. earlofhuntingdon says:

    If the alleged crimes are not crimes of war, how does the military and its Gitmo-based ad hoc commissions have jurisdiction? Are regularly constituted courts not open to deal with alleged crimes for which indictments have been obtained. For crimes alleging “terrorist acts”, whatever the govt defines those as being, I understand that the proverb remains true: even an elected prosecutor could get a grand jury to indict a ham sandwich.

  6. 4jkb4ia says:

    This is my last post on the interwebs before I sign off for Yom Kippur. bmaz, let us have the Cardinals at the field named for a bank next week. It will be great fun.

    It is easy to confine this to the 100 reporters because it is easy to believe that the public at large simply wants these men to be found guilty. It makes the 100 reporters more responsible to show the public about how these trials are not like the trials they might know, and not the villainy of the men who are being tried.
    (I read EW’s post on torture being admittable for the detainee himself in the totality of the circumstances YESTERDAY. I guess better late than never.)

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