And the Duck Gets the Nutter Butter: The Latest from GTMO

Two weeks ago, Army Col. James L. Pohl, the presiding judge in the case of the alleged 9/11 co-conspirators at the Guantanamo Bay military commissions, issued an alarming opinion. If reports are true, Judge Pohl determined that a secret authorization he issued in 2014, which allowed the destruction of a CIA black site, was A-OK, and that defense attorneys didn’t need to know.

Seems legit, and not at all like a certain Friends episode.

The decision responds to a May 2016 defense filing in which the attorneys for Khalid Sheikh Mohammad requested that Judge Pohl recuse himself from the case and disqualify Chief Prosecutor Brigadier General Mark Martins and all members of the prosecution serving under him. The defense motion outlines how Judge Pohl granted a classified request from the prosecution to destroy the black site, despite a standing order to preserve it. Defense attorneys were only made aware of the order a year and a half later, long after the site had been destroyed. They argue that this secret communication and destruction of evidence irreparably damages their client’s case.

Where to begin?

First, this is the legal case of the century, one of the most important in the history of the United States. It is imperative for the victims, their families, the defendants, and our country that this case is conducted properly. Defendants are presumed innocent until proven guilty and are entitled to a full and robust defense. Once (if?) this case goes to trial and a verdict is rendered, the defendants are entitled to appeal the decision. If the judge is found to be biased against the defendants, an appeals court could overturn the verdict. Therefore, secretly agreeing to destroy evidence that the defense argued was critical to their case risks undermining any convictions.

Second, this motion and ruling speak to the U.S. government’s perpetual interest in covering up its history of torture. It is well documented in the Senate Select Committee on Intelligence’s Summary Report on the CIA’s Rendition, Detention and Interrogation program that Mr. Mohammad spent several years at various black sites and was tortured. He was subjected to 183 waterboarding sessions, forced nudity, painful stress positions, and walling. His extensive torture is likely to play a large role in his defense and could be critical in sentence mitigation. It’s difficult to see Judge Pohl’s secret authorization as anything but a continuation of that cover up.

This development is just more proof of what we’ve been saying for years: Guantanamo is a failure. More than 16 years after the attacks of 9/11, the alleged perpetrators still haven’t been put on trial. President Trump has acknowledged the glacial pace of the military commissions. While federal courts continue to produce convictions in fair and speedy terrorism trials, the military commissions are riddled with delays and cancellations, and even if a case is resolved, there’s nearly a 50/50 chance that at least part of the conviction will be overturned. It costs hundreds of millions of dollars a year to run the detention facility, and our relationships with allies continue to suffer every day it remains open. The military commissions prove, nearly every week, that they are a waste of time and resources.

Guantanamo is a disaster for justice, integrity, and America. It is long past time that we admit our failure and shut it down.


Published on January 29, 2018


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