The Elephant in the Courtroom

May 7, 2012

No matter how hard the Military Commissions try they can’t escape the elephant in the courtroom. The five defendants in the 9/11 case were tortured by the CIA and the government is tying itself in knots trying to work around this fact.

In his press conference on the eve of the arraignment the Chief Prosecutor, General Mark Martens, tried to address this issue:

“Some have said that any attempt to seek accountability within the Military Commissions system must inevitably be tainted by torture… we acknowledge your skepticism, but we also say that the law prohibits the use of any statement obtained as a result of torture or cruel, inhuman or degrading treatment, and we will implement the law.”

Of course the law also requires the state to investigate allegations of torture – yet in the case of the five defendants being arraigned this hasn’t happened. That might explain some of our skepticism.

Nobody is being well served by this process. Not the defendants, not the victims, and not the American people.
In fact, one might even go further and argue that the whole proceeding amounts to a conspiracy to obstruct the course of justice. The regime of presumptive classification, which requires every statement made by the defendants to be treated as classified, makes it almost impossible for them to tell their story.

Yet, it keeps ‘spilling’ out at every turn.

Almost as soon as the arraignment began the courtroom feed was cut and white noise pumped into the viewing gallery because one of the defense attorneys had “spilled” classified information by trying to raise how his client had been treated in custody.

Only minutes after proceedings had got back underway the defendants then refused to listen to the translation of the court proceedings through the headphones they had been given.

Khalid Sheikh Mohammed’s attorney David Nevin explained to the court why his client wouldn’t wear the equipment provided:

“The reason he wouldn’t put the headphones in his ears has to do with how he was tortured.”

Judge Pohl was forced to order consecutive translation over the court’s PA system, the cumbersome logistics of which bedeviled almost every subsequent exchange.

Not long after that Mr. Nevin asked the Prosecution to identify the individuals sitting at the back of the courtroom on the government’s side commenting:

“The presence of unknown shadowy people is extremely disturbing for my client.”

The individuals in question were FBI Agents observing the arraignment.

This is a defense tactic to be sure, but it is a legitimate tactic nonetheless. If the defendants had been handled lawfully it wouldn’t be an option.

The Military Commissions are in part designed to make it easier for the government to navigate the legal problems that the past ill-treatment of the Guantanamo detainees has created.

But this is not a problem that can be process-managed away.

One of the most interesting developments observing this proceeding was the apparent matter-of-fact acceptance on all sides of the courtroom that what happened to the defendants in CIA custody amounted to torture.

The word ‘torture’ came up repeatedly throughout the arraignment but at no point did anyone on the government side, either in the courtroom or in press briefings, try to make the argument that the Enhanced Interrogation Techniques used on them did not amount to torture or cruel, inhuman and degrading treatment.

Even Judge Pohl seemed to have made up his mind on this point telling the defense at one point that there would be an opportunity for the defense to ‘right this wrong’ at trial.

During the Omar Khadr trial the question of torture and duress was largely brushed under the carpet. The premature end of the case in a guilty plea deal meant that the court’s decision to exclude testimony relating to Khadr’s mistreatment in U.S. custody was quickly forgotten.

That is not likely to happen this time.

The 9/11 defendants seem intent on contesting this case to the bitter end and at some point the torture issue is going to have to be dealt with or any subsequent convictions will be beyond unsound.

In conversation with reporters, Ali Abdul Aziz Ali’s Defense Counsel James Connell made a prediction:

 “[This] is only the beginning of a trial that will take years to complete, followed by years of appellate review. Indeed, we may all meet again another ten years from now if the Supreme Court strikes down the Military Commissions as unconstitutional for the second time.”

This is not an entirely unlikely scenario. It will certainly be years until we reach the final arguments in this case. It’s going to be years before it even starts.

This is all so unnecessary, if this case had gone to federal court immediately after the defendants had been captured it would have completed years ago – as more than 350 terrorism-related cases have been since 9/11.

That’s what is so depressing about the Military Commissions – nobody is being well served by this process. Not the defendants, not the victims, and, most certainly, not the American people.

Tom Parker is currently at Guantanamo Bay to observe the Military Commissions proceedings against five alleged 9/11 co-conspirators