Over the past few weeks, frustrated journalists and observers who came to Guantánamo to see the latest round of 9/11 military commission hearings have focused on the glacial pace of proceedings. "Slow-mo Gitmo," commented one observer, while another bemoaned the continuous delays to the trial of the five men accused of perpetrating 9/11.
The criticism turned offensive with the suggestion that the delays are the fault of the defense. That if only we would stop dragging our feet, justice would be swifter. Let us be very clear: If justice is the goal of this military commission, no one seems to have told the government.
The Guantánamo Bay military commission is a secretive court that uses secret evidence chosen by the prosecution and often denied to the defense, where secret agents spy on the defense without consequences, where attorney-client privilege is a daydream, and the accused were tortured until even memories of their own torture must be classified. It bears no resemblance to our concept of "justice" in the United States.
Here are just a few examples:
It is not justice when the government continually confiscates our clients' privileged legal materials.
It is not justice when the government installs hidden listening devices in attorney-client meeting rooms.
It is not justice when secret government agencies can shut off microphones in an open courtroom proceeding without permission from the military judge.
It is not justice when the government erects walls upon walls of classification in order to hide evidence from defendants, defense counsel, and even the trial judge himself, as became public last week.
It is not justice when the government shares more of that classified evidence with Hollywood film-makers in an attempt to rewrite history, than they do with defense counsel in a death penalty case.
It is not justice when the government attempts to place an FBI informant on a defense team.
It is not justice when the government tortures and degrades my client and then haunts him with memories of that torture through harsh prison conditions.
It is not justice when the government allows a former CIA interpreter to be utilized by a defense team, where he was instantly identified by a defendant as having worked at a black site.
And it is not justice when a defendant asks a simple question -- What are my rights if I represent myself? -- and neither his counsel nor the judge have any idea how to answer because the government prosecution insists that the Constitution does not apply on a U.S. Naval Station located on territory under U.S. control, in a courtroom over which the U.S. flag flies and outside of which the Star-Spangled Banner is played every morning at 8 a.m.
The military commission is not Burger King. The government doesn't get to have it "any way they want it." They may not sabotage the defense and mistreat defendants and then blame the defense and howl at public suggestions that this is a show trial. But whenever they try, it takes time to undo the damage.
The writer Edward Counsel stated that "The course of justice often prevents it," and that has perhaps never been as true as with the Guantánamo Bay military commission, now hobbling into the fourth year of its second incarnation. But if justice is indeed the goal, the only way to achieve it is by correcting the course of illegal government interference now. Even if that makes Gitmo "slow-mo."