On the Ground at Guantanamo Bay

The global war on terror's "code red" rules allowed for torture while the myth of Guantanamo as a separate place led some to the incorrect assumption that those practices could be contained there.
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Before I left for Guantanamo Bay to observe this past week's military commission proceedings, I diligently prepared by playing with Google Earth and re-watching A Few Good Men. Google Earth's satellite photos don't provide enough detail to see the military base's Starbucks or McDonald's, but the mapping program confirmed that Guantanamo Bay is, in fact, located a mere 90 miles from Florida. In contrast to the photo images situating Guantanamo as a part of the world around it, A Few Good Men's Col. Jessup (Jack Nicholson) articulates a vision of Guantanamo Bay as a place wholly apart from the rest of the world, independent not only of Cuba, but also from the rules that govern the U.S. mainland. You could call the two pictures of Guantanamo -- one a place enmeshed in the world around it; the other totally separate -- "competing visions," but please remember that Col. Jessup suffers a psychotic breakdown at end of the film and is arrested.

The question posed by Col. Jessup -- Does the protection of our safety, freedom, and the rule of law inside the United States necessitate the existence of places outside our borders that operate under their own set of rules? -- is answered by the film with a definitive no. In the current public debate over Guantanamo, however, we continue to grapple with the question of whether there must be special rules for dealing with the most threatening terrorism suspects, the "worst of the worst," or whether more universal principles will apply.

Wednesday was the first time that I laid eyes on one of the "worst of the worst." It was also the first time that Mohammed Kamin, an Afghan in his early 30s, was seen outside of prison since his capture in Afghanistan in 2003. He had some cuts and bruises on his face and neck when the other observers and I were finally allowed to enter the hearing room shortly after 11:00 AM. His arms and legs were shackled and he wore Guantanamo Orange. His arraignment on charges of providing material support for terrorism had been scheduled to begin at nine, but Mr. Kamin had refused to leave his cell. At 8:15 the judge, Air Force Col. W. Thomas Cumbie, issued an order forcing him to appear. When the proceedings finally got underway Col. Cumbie stated for the record that Mr. Kamin had attempted to spit on and bite guards on the way over from the prison facility to the court.

Mr. Kamin was not the only player new to the Military Commissions. Wednesday was the first proceeding under the Military Commissions Act for the judge, the defense attorney and the two prosecution attorneys. This all around greenness was not coincidental; instead, it is the direct consequence of the Bush Administration's decision to subscribe to the Jessup vision of Guantanamo. The base was selected to warehouse and try detainees precisely because certain officials believed it was -- or could be -- the "legal equivalent of outer space."

The Supreme Court has acted to place some earthly constraints on the Guantanamo proceedings but, in passing the Military Commissions Act of 2006, Congress acquiesced to the President's demand for a brand new legal system, outside of the federal court and military justice systems, to try terrorism suspects. And so, the military commissions go where no man has gone before, encountering the difficulties that plague new systems such as inaudible translations.

It would, however, be inaccurate to characterize Wednesday's hearing as being completely unmoored from the American legal system. After Mr. Kamin fired his military attorney and announced that, because he views the entire system as biased against him, he would refuse to participate in his own defense, his military attorney, Lt. Rich Federico, told the court that a boycott is a legitimate form of defense and that he would have to seek clarification about his own role going forward. When Col. Cumbie several times asked Lt. Federico about how he understood the Military Commission Act's requirement that the defendant "shall be represented by military counsel," Lt. Federico called on sources outside of the MCA to question the nature of his relationship with his (former) client: The values of the adversarial system, its fundamental reliance on the attorney-client relationship, and the ethical obligations imposed on him by the Indiana bar.

At the end of the day, the question of how Mr. Kamin will be represented if he continues to boycott the proceedings remained unresolved.

Like Mr. Kamin, Ibrahim Ahmed Mahmoud al Qosi, a 47-year-old Sudanese man accused of acting as Osama bin Laden's driver and bodyguard, wanted nothing to do with his military defense attorney. On Thursday, he repeatedly stated that he would not trust any lawyer appointed by the United States government. Unlike Mr. Kamin, Mr. al Qosi, in a reversal from his last appearance before the Commission, indicated that he would participate in the proceedings if he is able to retain a civilian lawyer of his own choosing, a right defendants are explicitly granted under the MCA. Thursday was spent in conversations between the judge, Mr. al Qosi, and the defense counsel -- whom Mr. al Qosi repeatedly refused to recognize as his lawyer -- figuring out how Mr. al Qosi could exercise his right to retain his own counsel when, as a Guantanamo detainee jailed for 6 ½ years, he doesn't know whom to call and, in any event, doesn't have access to a telephone. Mr. al Qosi requested that he be allowed to phone his brother for help finding a lawyer. It was unclear throughout the day how much authority the judge had to make this call happen. Will Mr. al Qosi, an alien (unlawful enemy combatant), be able to phone home? Again we encounter the question of whether Guantanamo is part of the world, a place where rights can be exercised, or a place apart.

In A Few Good Men the secret rules in operation at Guantanamo are brought to light during a court martial proceeding. Jessup's argument that the rule of law and human rights are luxury commodities that must be paid for with unseen brutality on the borders is rejected and the movie ends with the law of the United States reasserting itself over Jessup's rules.

Is there a way for the Military Commissions to do the work of the movie's court martial and restore universal principles of justice and fairness to America's treatment of those accused of terrorism? The United States needs this resolution as much as the detainees do. The global war on terror's "code red" rules allowed for torture and abuse while the myth of Guantanamo as a separate place led some to the incorrect assumption that those practices could be contained there.

From what I've seen, the Military Commissions with their separate rules aimed at walling off access to the larger American justice system are off to a bad start. Injustice in Military Commissions proceedings will no more be a problem of Guantanamo than torture remained a problem of Guantanamo rather than a problem for the United States as a whole. It is the defense, not the government, which is appealing to larger, universal principles in these proceedings: A military defense attorney examines the basic premises of our adversarial justice system, a detainee asks to exercise his right to pick his own lawyer. If these demands are not met, it is difficult to see how trials in-absentia will meet the needs of the United States for a transparent, fair and fair-seeming mechanism to reestablish our moral authority.

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