In case you missed it, the U.S. government detained another person at Guantanamo Bay this week, the first since 2008. His identity is unusual for a new detainee, insofar as he never fought against the U.S. or pledged allegiance to al-Qaida. Quite the contrary: The latest detainee was U.S. Marine Corps Brig. Gen. John Baker; his offense was standing up for the rule of law and being held in contempt by a judge overseeing the military tribunals at Guantanamo.
That Baker would find himself under house arrest at Guantanamo on the day after a terrorist attack in Manhattan is mere coincidence. However, it highlights the enormous disconnect between the show trials being conducted at Guantanamo and the real trials being conducted in federal courts around the country to prosecute and imprison terrorists, like Sayfullo Saipov, the man accused of mowing down eight pedestrians on Halloween. It is truly a tale of two systems: the best of legal systems, on display every week in federal courthouses, where processes unfold neatly and along well-worn lines established by centuries of statute and precedent; and the worst, on display at Guantanamo, where a dispute over government surveillance of defense counsel has resulted in a Marine general being detained (and released two days later) and civilian counsel being threatened with the same fate.
For all his bluster about Guantanamo and military justice being tougher, President Donald Trump seems to recognize this. The Trump administration initially called Saipov an “enemy combatant” and began laying the rhetorical foundation for his transfer to Guantanamo—ostensibly to face justice before the war courts there. But then Trump had a change of heart, first tweeting that Saipov should face the death penalty (a remark that may ultimately help his defense), and then saying Trump would love to send him to Guantanamo but won’t because the war crimes trials were so much slower and less effective than federal courts. Ironically, as the strange case of John Baker shows, Trump is right. Since 9/11, federal courts have put hundreds of convicted terrorists behind bars for life, with none of the drama or difficulty of the war courts at Guantanamo. For all the jingoism about military justice, and how tough it is, the heavy legal lifting in America’s war on terror has been done by the Justice Department and our federal court system.
The Guantanamo story starts two months after 9/11, with a deeply flawed executive order creating military commissions. The fateful order emerged from a hurried process that excluded most of the nation’s experts in war crimes law—including many at the Pentagon and State Department—resulting in tribunals that were eventually deemed unlawful by the Supreme Court. Congress has twice tried to fix Guantanamo’s war crimes courts, once in 2006 at the urging of President Bush and once more in 2009 at the urging of President Obama. Each time the trials get under way, however, prosecutors or defense attorneys for the detainees uncover some new defect or problem in the system.
This time, the defect concerns government surveillance of defense attorneys during their conversations with detainees they were assigned to represent. This had occurred before at Guantanamo—both in the context of the war crimes trials and for detainees not facing prosecution but seeking a writ of habeas corpus in federal court so they might leave. Unnamed security agencies had listened to attorney-client conversations, read mail to and from detainees, recruited a member of the defense team to be a confidential FBI informant, and even allegedly used an interpreter who previously worked at one of the CIA’s black sites overseas.
Much of these incidents remain shrouded in secrecy; nearly everything at Guantanamo is presumptively classified. Even the defense attorneys themselves, who hold the government’s highest security clearances, cannot candidly discuss the matter. However, public court filings and media reporting suggests the government installed surveillance gear in the rooms used by lawyers to meet with their clients. It is unclear to what extent the government used this gear to actually listen to attorney-client conversations (which are generally sacrosanct in the American legal system), although the government has claimed the right to do so for security reasons, not to gain an advantage in the Guantanamo legal proceedings. Nonetheless, each discovery of surveillance has caused the war courts to grind to a halt, with judges very skeptical of the government’s right to eavesdrop on detainee lawyers.
The latest episode did more than delay the war trials: It blew up the defense team as well. By law, the detainees facing the death penalty must have “learned counsel” assigned to defend them. Since no such counsel is readily available within the military, civilian attorneys have been hired by the Defense Department to defend those detainees, including Abd al-Rahim al-Nashiri, who allegedly planned the 2000 bombing of the USS Cole. The Pentagon’s repeated surveillance of the defense team created an untenable ethical situation for these lawyers, who declined to continue their work under these circumstances. Baker, their boss and the chief defense counsel for the Guantanamo war courts, agreed, and wrote that he was recommending a halt to attorney-client meetings and asking (again) that the government curb its eavesdropping on defense counsel. Baker went further by disbanding the Nishiri defense team, citing the inability of civilian counsel to continue ethically representing their client.
At that point, a minor derailment of the Guantanamo trials turned into a full-fledged train wreck. Under well-established law, defense counsel cannot withdraw without the court’s permission. Baker refused a request from Air Force Col. Vance Spath, the judge overseeing Nashiri’s trial, to reinstate the defense team, and also refused to testify on the matter before Spath’s court. In response, Spath declared Baker’s disbanding of the defense team to be “null and void” and held Baker in contempt of court, sentencing him to 21 days of confinement and a $1,000 fine.
Since then, attorneys working on Baker’s behalf moved in federal district court to seek a writ of habeas corpus—perhaps the first time in history such a writ has been sought on behalf of an active duty general officer—with a federal judge expressing concerns that Baker had no obvious appeals route because he himself was not subject to the commissions’ jurisdiction. Pentagon officials decided to release Baker on Friday afternoon. But in doing so, convening authority Harvey Rishikof merely deferred Baker’s punishment without addressing any of the more basic tensions laid bare by Baker’s actions and Spath’s response. The Nashiri trial continued—but with just one relatively junior Navy lawyer, former Navy SEAL and 2012 Georgetown law school graduate Lt. Alaric Piette, representing the accused.
What’s clear after this incident is that the Guantanamo war courts have gone off the rails and broken down so completely that they cannot be repaired. They now labor under the weight of ethical dilemmas like this, years of delay, and confusion about basic rules that make any effort to move them forward impossible.
All three branches have tried to fix the Guantanamo war courts, and yet, even in their current incarnation, these tribunals are failing. It is time to end the charade of justice at Guantanamo and terminate these trials. The defendants in the dock at Guantanamo should face prosecution by a properly constituted American court—or none at all, and thus be detained under the laws of armed conflict. There simply is no substitute for justice and the rule of law.