Earlier this month, I traveled to Guantánamo Bay, Cuba, to observe the latest round of pre-trial proceedings in the death penalty case against Abd al-Rahim al-Nashiri, the alleged al-Qaeda mastermind behind the USS Cole attack in 2000 that killed 17 American sailors.
Mr. Nashiri, a Saudi national, has been held at the United States military prison at Guantánamo since 2006, and was tortured at a series of secret CIA prisons.
As a legal observer there to monitor the controversial military tribunal, I expected to spend a majority of my time sitting in the base’s heavily guarded courtroom. The schedule called for three days of proceedings, all of which were to be open to the public.
After just one day of hearings, however, the military judge in the case, Col. James Pohl, ordered that the two remaining days of hearings be held in secret. As a result, the legal observers, reporters, and victims’ families who had all traveled to Guantánamo to witness the commission were relegated to sitting in their tents or exploring what they could of the island.
In a surreal twist, I spent the majority of my trip less than a stone’s throw from the base’s infamous detention camps and courthouse, but could see little of either.
My experience is at odds with the government’s attempts to portray the commissions, revamped in 2011, as both fair and open. As chief prosecutor Gen. Mark Martins acknowledges, he is charged not only with leading the prosecution, but also with convincing domestic and international audiences that the tribunals are a legitimate institution of American law.
Though improved in some respects, the revived commissions are still characterized by a startling level of secrecy. In an effort to conceal details of defendants’ torture while in CIA custody, the government has designed the commissions to prevent defense teams from obtaining or publicly discussing information about the torture program.
This is problematic, since defendants’ torture is the most crucial factor weighing against a death sentence. In U.S. law, if the government engages in actions that “shock the conscience,” it may, as a penalty, forfeit its right to prosecute a defendant. Even if a judge chooses not to dismiss charges outright, she may still take execution off the table.
Still, the government argues that sharing information about the defendants’ treatment with their attorneys — all of whom have top secret security clearances — would jeopardize national security. Officials have failed to explain, however, how security would be harmed by discussing interrogation techniques formally disavowed and halted nearly a decade ago.
Prosecutors even assert that defendants cannot publicly discuss, or even hear classified descriptions of, the torture they experienced. As a result, defendants are regularly excluded from hearings in their own trials. David J.R. Frakt, a scholar of military justice, likened this to an “effective censorship of personal memories and experiences.”
In April, Judge Pohl ordered the government to turn over at least some of the documents chronicling Mr. Nashiri’s torture, a ruling his attorneys called “brave and courageous.” But even this limited victory was violently opposed by the government, which is threatening to appeal the decision if Judge Pohl declines to reconsider.
Fortunately, there is a simple solution to the rampant secrecy and dysfunction of the military commissions: move the trials to federal courts. After more than a decade of unnecessarily complex and classified pre-trial hearings — and with no end in sight — it is time for the government to acknowledge that the commissions system is a failure.
Federal courts, unlike the commissions, rely on a clear and time-tested set of rules for handling sensitive information under the Classified Information Procedures Act (CIPA). This system is better equipped to balance the government’s need to keep certain information secret against defendants’ right to exculpatory or mitigating evidence.
The rules governing federal courts also support the public’s right to trial documents and proceedings, and would make it much harder for the government to censor a defendant’s personal experiences of torture. This protection of basic rights and legal norms means that convictions obtained in federal courts are far more likely to hold up on appeal.
With the world watching, the government is right to be concerned about the legitimacy of the Guantanamo detainee trials. Even though it is accused terrorists who are on trial, our nation’s conduct and commitment to the rule of law will be judged here too. That is why it is time to pull back the veil of secrecy and move these trials to federal court.
Jeremy Carp is a Research Associate with the Liberty & National Security Program at the Brennan Center for Justice at New York University School of Law.