This from Guantanamo Bay, Cuba, where I’m watching the war crimes tribunals going through pre-trial motions for Abd al Rahim al Nashiri, the man accused of the bombing of the USS Cole off the coast of Yemen in 2000.
His case is effectively a dry run for the "trial of the century" involving Khalid Sheikh Mohammed and four others accused of plotting the September 11 attacks. In all the cases, the US government is seeking the death penalty. The question that hangs heavy over these war crimes tribunals – or Military Commissions as they are properly known – is whether they can ever really by construed as free and fair. Is it really credible that a man who was kept in black CIA prisons for nearly four years and repeatedly subjected to inhumane and degrading punishments – as the US government admits Al Nashiri was – can get a fair hearing from a trial jury comprised of hand-picked US army officers?
The chief prosecutor at Guantanamo, Brigadier-General Mark Martins, believes so, and has been touring America making speeches promising that the war crimes tribunals can “faithfully” and “transparently” try Al Nashiri and the 9/11 five “according to the rule of law.” In a long speech to Harvard Law School early this month, Martins told his audience that US court martial juries were actually often superior to their civilian counterparts – more diverse, better-educated and more independent minded.
“I know how mindful selecting officials are that diversity and representativeness on military panels serve the interests of justice,” he said, “Military jurors drawn from units all across the globe are chosen because, in the convening authority’s independent opinion, they are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.”
You don’t have to think too hard to see that in this case – to put it mildly – this is stretching credulity.
To say with a straight face that Al Nashiri – terrorist or no – should be expected to trust to the “mindfulness” and “independent opinion” of the legal face of his torturers only points up the levels of double-think required to take these "fair" trials at face value. Just take a look at this redacted CIA inspector-general report from 2004 to get an idea of what was done to Al Nashiri as he was subjected to "enhanced interrogation techniques" in CIA detention in Afghanistan, Thailand and Poland after his arrest in 2002.
He was subjected to mock executions, simulated drowning by water-boarding, scrubbed with stiff brushes until his skin was raw, threatened with a revving power drill as he stood hooded and naked, kept in such filthy conditions his CIA interrogators smoked cigars to mask the stench, held in stress positions for days on end and hauled up by his arms to the point where his shoulders were about to dislocate.
The Obama administration rightly put a stop to this kind of treatment because it is vile, as well as utterly short-sighted and demeaning to everything that our Western democracies profess to stand for. If you want to live in a society where ends justify the means, where torture and inhumane treatment is inflicted in the name of the "greater" good, then go and live in China and see what kind of fearful, introverted society that breeds.
Watching the proceedings here in Guantanamo – motto “Safe, Humane, Legal, Transparent” – there are times when it feels like being back in China; a world of sometimes comic double-speak where the legal process is designed only as a long-winded device to legitimise a pre-determined outcome.
All sides – the defence, the (droll, laconic) Judge James Pohl and the prosecutors – argue earnestly over the legal niceties, but that cannot disguise the fundamental lopsidedness of the Guantanamo tribunals, even after the Obama administration reforms. And, to cap it all, even in the (admittedly unlikely) event that Al Nashiri is acquitted, he won’t walk free since as an enemy combatant he can be held until the cessation of hostilities, which in the war on terror means indefinitely. How very Chinese.
Four years ago Barack Obama rightly promised to close Guantanamo Bay, but when it came to the crunch, he caved in to pressure from Congress and the American public and compounded the mistakes of his predecessor, something for which he was rightly condemned by the UN this year.
The result is an ugly hybrid of a legal process at Guantanamo that is cloaked the place in a kind of quasi-legitimacy that in many ways is more pernicious than the Bush-era horror show: at least that monster was plain for everyone to see.