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?
Because the issue of water-boarding will not be subject to a protracted legal battle. To the extent the upcoming military commissions address the issue at all, it will happen—as it is happening now—in a black box, cloaked in assertions of secrecy. For one thing, the Military Commissions Act passed by Congress permits the government to assert national security privilege where sources and methods of obtaining information are concerned. They can keep this evidence from the defense, so long as the military judge finds the sources and methods are classified. In Hamdan, the government has already asserted that this prohibition extends to the interviews of the detainees themselves concerning their interrogations, and as such, the government has already erected a wall of silence around the high-value detainees extending even to their interviews.
Without the testimony of their clients, any effort by the defense to pierce this wall of silence will be further stymied by the fact that the tapes of these interrogations were conveniently destroyed. Moreover, the defense won't be able to call the agents who questioned them to probe the interrogation methods used. They are barred from doing that both by the congressionally created national security privilege, and because the agents will undoubtedly take refuge in the right not to make statements that might incriminate them.
These legal obstacles would be formidable for any defense team. But the inability to claim their clients have been tortured is only the beginning of the defense lawyers' woes. Even if they could openly litigate the question of alleged torture, they lack the staff to properly defend their clients. While the office of the chief defense counsel at Guantanamo has always had significantly fewer assets than the prosecution, the passage of the Military Commissions Act left the office with even fewer resources. During the first round of commissions, the office's policy was to assign at least one full-time military counsel to each case and, wherever possible, an associate counsel. Current staffing decisions provide that counsel may carry multiple cases along with their new high-value clients. Just by way of contrast, the ABA standard for death penalty defense—adhered to in military courts-martial—is two full-time death-penalty-qualified counsel.
There was one other reason to bring these high-value detainees to trial now. The timing is perfect for the Bush administration. The MCA ensures that the appeals process can be finished in as little as 120 days, depending on whether the accused waives his right to appeal to the D.C. Circuit. And under the act, any sentence of death must be personally approved by the president of the United States before the sentence can be carried out.
This means that if any of the accused, like Timothy McVeigh, volunteer immediately for the death penalty, President Bush will be able to conclude his presidency by signing a death warrant. With a stroke of the pen, he can claim to have accomplished his goals and vindicated his policies in the war on terror by bringing the architects of Sept. 11 to justice. But even if the detainees try to put up a fight, the protracted legal battle will take place on some other president's watch. And when the dust settles, that next president will be left with the Hobbesian choice of either signing the death warrant (thus putting a stamp of approval of both the process and the policies of Guantanamo) or commuting the sentences of some of the most reputedly vile murders of our time. Either way, this administration is vindicated. Either way, the question of torture happens in secret. And either way, justice loses.