The Pentagon's Guantánamo Problem

In what appears to be nothing more than propaganda masquerading as news, the U.S. military has announced that it will "televise the Guantánamo trial of accused September 11 mastermind Khalid Sheikh Mohammed and five other suspects so relatives of those killed in the attacks can watch on the U.S. mainland."

Army Col. Lawrence Morris, the chief prosecutor of Guantánamo's system of trials by Military Commission, stated, "We're going to broadcast in real time to several locations that will be available just to victim families," adding that the footage would be "beamed to closed-circuit television viewing sites on military bases at Fort Hamilton in New York, Fort Monmouth in New Jersey, Fort Meade in Maryland and Fort Devens in Massachusetts."

While there seems little doubt that Col. Morris is sincere, it's also apparent that the trial under discussion will not be taking place anytime soon, and that announcements of broadcasts designed to appeal to the families of 9/11 victims are premature, to say the least, and more judiciously regarded as attempts to shore up the disputed legitimacy of the Commission process.

Conceived by Dick Cheney and his close advisers in November 2001, as an alternative to either the U.S. court system or the U.S. military's own judicial processes, the Military Commissions have been heavily criticized for allowing the possibility of withholding evidence from the accused and of using evidence obtained through torture. This latter provision was later dropped, but the possibility of using evidence obtained through coercion remains at the discretion of the government-appointed military judge, and it should also be noted that this is an administration that has found it notoriously difficult to differentiate between acts of torture and acts of coercion.

The Commissions have also stumbled from one disaster to another. Dismissed as illegal by the Supreme Court in June 2006, they were resuscitated by Congress just a few months later, but were then struck down by their own judges in June 2007, on the grounds that the legislation that had revived the process -- the Military Commissions Act -- had authorized the judges to try "illegal enemy combatants," whereas the process at Guantánamo that had supposedly made the prisoners eligible for trial -- the Combatant Status Review Tribunals, themselves heavily criticized for relying on secret evidence obtained by dubious means -- had only declared that the prisoners were "enemy combatants."

Although this issue was resolved just a few months later, in a hastily-convened appeals court, the Commissions have never, even briefly, escaped from the deep shadows cast over their legitimacy by their own government-appointed military defense lawyers, who have maintained, from the moment that they first investigated the new trial system in any detail, that the Commissions are, to quote just a few examples, "implements for breaking the law" by concealing evidence of torture (Lt. Cmdr. Charles Swift, who represented Salim Hamdan, a driver for Osama bin Laden, in the Supreme Court case that threw out the first system of Military Commissions), and rigged, ridiculous, unjust, farcical, and a sham (Lt. Cmdr. William Kuebler, who represents the Canadian Omar Khadr).

Currently mired in controversy in the case of Khadr, who was just 15 years old when he was captured -- and, it was recently revealed, may not have killed the U.S. soldier whose murder is the key charge against him -- the Commissions have fared no better in any of the other pre-trial hearings that have taken place recently. Lawyers for Salim Hamdan have fought tenaciously to establish that he had no insider role in al-Qaeda and should therefore have rights as a Prisoner of War, and in the last month three other prisoners have resorted to disrupting their pre-trial hearings through a combination of non-cooperation and pleas for justice that have done little to reassure the wider world that the process is either valid or fair.