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Mystery, Paranoia, Confusion: You Won't Believe What's Happening at Guantanamo

A mystery is unfolding that highlights the peculiarities of the military commission system.

Over the week of January 28-31 a great mystery played out at JTF-GTMO, the notorious military base and indefinite detention facility better known as Guantanamo Bay. The question at hand: who cut the media feed during a pre-trial hearing for Khalid Sheik Mohammed, self-proclaimed mastermind of 9/11, thus temporarily censoring the proceedings? Was there an unknown, outside force controlling the court? If so, who was it? What was intended to be a dry week of legal wrangling became a full-on whodunnit that was part Law & Order, part spy novel – if the final 50 pages had been blacked out.

On top of that, the week ended with defense attorneys openly questioning whether their conversations with clients were being secretly monitored. “We have significant reasons to believe we have been listened in [on],” David Nevin, defense attorney for KSM said at at press conference. “After this week,” said defense attorney James Connell, “the paranoia levels have kicked up a notch.”

If none of this sounds familiar, you can be forgiven. In the Obama era, news about GTMO (the military doesn't use the “i”) is either unwarrantedly optimistic – we're closing it, we swear – or, more frequently, totally ignored. And, quite tellingly, rather than close the prison, Obama has instead decided to close the office responsible for determining how to close the prison.

Last week the government held a round of what's called pre-trial motion hearings, which establish the specific rules of a trial. Given the almost complete lack of precedent in military commissions – more on that shortly – this process is even more important than it would be in a normal court.

The cast of characters in this would-be Agatha Christie play are numerous and colorful. At the center are Khalid Sheik Mohammed and his four co-defendants, all of whom stand accused of war crimes and face the death penalty. They've been detained at GTMO since 2006.

The attorneys representing the accused are an impressive posse of civilian and military lawyers given the difficult task of navigating a legal universe that, despite the government's claims to the contrary, often feels like it's being created before our very eyes.

Brig. Gen. Mark Martins is the lead prosecutor and the man most singularly tasked with defending the legitimacy of this young legal universe. Gen. Martins is the picture of the military's self-perception. Tall, disciplined, and by all accounts extremely intelligent, he's also stoic as a Brit. He once said, after being asked his feelings on a week's events, “I don't tend to experience highs and lows in litigation.”

Overseeing the endeavor is Army Colonel Judge James Pohl, a man with a self-deprecating sense of humor and a passing resemblance to Bill Murray.

The final character in this drama is the new legal universe itself. Military commissions, as GTMO trials are called, are a confusing mix of civilian court, which is overseen by the judicial branch, and courts martial, the justice system for members of the military, which is under the purview of the executive branch. Military commissions are similarly overseen by the executive branch, though Gen. Martins is quick to point out any similarity they share with civilian court. Congress created military commissions in 2006, and updated them in 2009.

Last week was supposed to be boring. But then lightning struck, the lights went out, and when they came back on there was a dead body in the middle of the room – metaphorically speaking, of course. The mystery had been set in motion.


It's hard to imagine the week going any worse for the government. On the first day of proceedings, a previously unknown, outside entity reached into the courtroom like the hand of god and cut the audio/visual feed to the media – which is on a 40-second delay – apparently surprising even the judge. The judge and his assistant, a court security officer (CSO), have always had the authority to cut the feed, but they didn't hit the button. Neither had the CSO's assistants.

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