The Pervasive Secrecy of Guantanamo
Last week, after a long day of observing proceedings in the case against accused 9/11 mastermind Khalid Sheikh Mohamed and his four co-accused at the military commission at Guantanamo Bay, members of the media and non-governmental observers relaxed at picnic tables outside our tents at Camp Justice. We told a few jokes and decompressed for a few minutes, before the conversation naturally turned back to the multi-million-dollar elephant on the air strip—the military commissions courtroom several hundred feet from where we sat.
We all agreed that this will be the trial of the century, on the level of Nuremberg, but that it doesn’t appear as if the American public at large is interested in the pre-trial hearings that take place at Guantanamo Bay throughout the year. One member of the media said he had to practically beg his supervisor to let him come down and cover July’s session. The demand for updates is nearly non-existent.
But how can that be? September 11, 2001 was a defining moment in American, if not global, history. We sometimes refer to millennials as “the 9/11 generation.” We have been at war for nearly 15 years because of the events of that day. Surely the public would care about the trial of the men accused of orchestrating the attacks. But they can only care about it if they know about it.
Since day one, the detention facility at Guantanamo Bay and the proceedings in the military commissions have been shrouded in secrecy on nearly every level. To start with, the proceedings are not open to the public. In order to observe in person at Guantanamo, you must be affiliated with a non-governmental organization, a member of the media, or a family member of a victim. During the press briefing after proceedings wrapped up on Thursday, even victims’ family members noted how difficult it was for them to keep track of developments in the case.
If you’re able to observe an actual hearing, the secrecy continues. Observers are subject to a 40-second audio delay, so censors can cut the feed to prevent classified information being shared.
Inside the courtroom, even defense teams—who all have security clearances—are denied information. Last week, they learned that the U.S. government dismantled a former CIA black site months earlier, despite a protective order from the judge. The “law permits a substitution of information,” the government replied, meaning prosecutors believe that pictures and documents are adequate replacements for actual facilities.
Last week, lawyers representing Mustafa Ahmed Adam Al Hawsawi also said they still don’t have medical records for their client prior to 2007 (Hawsawi was captured in 2003). Hawsawi still suffers from health-related issues due to the torture and “enhanced interrogation techniques” he endured. Yet even today, if Hawsawi sees a doctor, his team doesn’t receive official notice of it until months after.
In the military commissions system, the prosecution reviews all case-related materials and determines what can and cannot be provided to defense teams. When asked to explain puzzling delays like the one regarding Hawsawi’s medical records, Chief Prosecutor Brigadier General Mark Martins said it’s a “matter of national security.” Asked to elaborate, Martins said he’s “not an expert.”
The prosecution seems to consistently hide behind the national security defense. There are certainly some situations in which information must be classified to protect national security. Keeping a write up of a routine medical examination from the defense team for months doesn’t seem like one of them.
It is this pervasive secrecy surrounding the military commissions at Guantanamo Bay that leads to a lack of interest from the American public—there’s not enough information to be interesting. This lack of available information is why reporters have to work so hard to convince their bosses to let them report on pre-trial hearings in what will likely be one of the most important court cases in American history.
Government secrecy is why not even Juan Mendez, the United Nations Rapporteur on Torture, is allowed to visit all parts of the detention facilities. And it’s why defense lawyers aren’t notified for months that the U.S. government knowingly destroyed potentially critical case evidence.
The government is likely trying to prevent information regarding its torture and abuse of detainees from coming to light. It was a dark period of American history, one this government has admitted it is not proud of. But covering it up won’t help us move forward.
The government must be more honest with the American public (and of course with the defendant’s lawyers), especially when these cases actually go to trial. General Martins has repeatedly said he wants this case to be “something the American people can be proud of.” In order for that to happen, the American people need to know about it.