The timing of the Guantanamo trials is not an accident.
During the course of my career as a defense lawyer in the military, I've shrugged off many government conspiracy theories. Each time I heard one, I'd smile and say that one should never attribute to a vast government conspiracy acts that can be as readily attributed to mere government incompetence or accident. So, I did not initially assume any concerted plan or purpose behind recent activities at Guantanamo Bay.
But the government's latest moves in the ongoing battle over the legality of its detention policies are anything but incompetent, and they've forced me to reassess my initial conclusion: The decision to try six Guantanamo detainees using military commissions is very clearly part of a concerted effort to use the Guantanamo commissions to subvert the goals of justice and to maintain a veil of secrecy around its questionable interrogation policies.
Writing in Slate this week, professors Jack Goldsmith and Eric Posner argued that the military commissions at Guantanamo are dangerous because to be viewed as legitimate they will afford too much openness. The opposite is true. The commissions have been structured to keep the worst government misconduct behind closed doors, and the timing will ensure that members of the Bush administration either are long gone when the trials prove disastrous, or benefit from death sentences before they leave office.
Anyone who believes the trials will prove a referendum on water-boarding or other aggressive interrogation tactics is wrong. Last week at Guantanamo, the government claimed that members of the defense team of one detainee—Salim Ahmed Hamdan—could not interview Khalid Sheikh Mohammed and other high-value detainees because such an interview posed an unacceptable risk to national security. This, despite the fact that two members of Hamdan's defense team held valid security clearances—authorizing their access to the highest levels of classified information. These interviews would have been limited to the question of Hamdan's involvement with al-Qaida and would not have delved into scrutiny of how high-value detainees had been interrogated.
Simultaneously, Michael Mukasey, the attorney general of the United States, announced to the Senate judiciary committee last week that he would not investigate whether any criminal wrongdoing had occurred in interrogating these detainees since interrogators had acted pursuant to orders they believed lawful. Less than a week later, the government announced it was charging many of these same detainees—including Khalid Sheikh Mohammed—with capital crimes including planning and directing the terrorists attacks of Sept. 11.
On the surface, the government's three positions last week would appear to be uncoordinated and contradictory: Why, after going to considerable trouble last week to put the issue of water-boarding to bed, would the administration possibly turn around the very next week and reopen the issue to a protracted legal battle?
Former military defense lawyer Lt. Cmdr. Charles Swiftrepresented Salim Hamdan in the case Hamdan v. Rumsfeld.
Photograph of Khalid Sheikh Mohammed courtesy FBI/Getty Images.