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The Guantanamo Bay Military Commissions: “Fairness – Transparency – Justice”

Written by Indrani Balaratnam Wednesday, 02 January 2013
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The Military Commission is founded on these three core values – fairness, transparency and justice.  The Commission was set up in 2001 to try foreign terrorism suspects when it was decided their cases could not be tried in federal courts in the interest of national security.  

In November 2009, Khalid Sheikh-Mohammad, Walid Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Al Hawsawi, the five men accused of involvement in the 9/11 attacks, had their trials brought to a federal court then transferred to the Military Commission following public backlash.  These men are facing the harshest punishment for their alleged crimes – if the military judge, Judge Col James and jury finds them guilty, they could be sentenced to death.  It is just as well that these commissions strongly advocate their motto - fairness, transparency and justice.

On 6 December 2012, Judge Col. James Pohl issued a Protective Order, deeming any “classified information” in this case should not be disclosed as it could be “detrimental to national security.”  The defence will only be granted access to the information after passing a security clearance, signing the terms Protective Order and proving that they request access to the information on a need-to-know basis.  Following this, any discussion of the material amongst the defence team can only be done in accordance with security precautions, in the presence of a Court-elected Defense Security Officer.  

If there is a leak of the classified information to the public domain, counsel are prohibited from commenting on the information as all material continues to be considered classified even if it has been publicised.  In order to prevent public access to the information the Commission has reserved the right to hold closed proceedings, excluding the public from the courtroom and only individuals who have passed the security clearance for the Protective Order, as verified by the court-appointed Court Security Officer, are permitted to remain.  Furthermore, open proceedings are broadcasted with a forty-second delay from the courtroom to the public gallery to provide sufficient time to filter any “unauthorised disclosure.”  Any individual found breaching the terms of the Protective Order can be liable for criminal prosecution. 

In 2009 President Obama declared the Bush torture memos should be publicised, revealing all torture methods deployed by the U.S. in an attempt to bring an end to the accusations of concealment and denial of “facts that have been in the public domain for some time.”  In order to promote transparency and comply with the First Amendment – the public right to know what the government is doing - Obama then signed the Classified National Security Information which bans the government from classifying certain information and defending it as a prevention of embarrassment of any individual/organisation or the government, and bans any concealment of a violation of law.  Obama believed it to be in the interest of the public relations of the U.S. government to start being honest about the extent of their actions in the Guantanamo cases because he recognised that information would still reach the public domain regardless of any classifications, and a denial of the truth of this information jeopardises the integrity of the United States government.  Fairness, transparency, justice.

In spite of the actions of President Obama, the Military Commissions insists on breaching the First Amendment and withholding information from the public – justified on grounds of “national security.”  Evidence of torture, witness testimony that could reveal the locations of detainee camps around the world, and information that could uncover the extent of the government’s breach of the Geneva Conventions – perhaps the disclosure of this information could be embarrassing, will reveal violations of law or could pose a national security threat when the public realise the extent of the damage caused by the government but none of these reasons can justify the continued cover up of the activity.  When President Obama released the torture memos in 2009, the enhanced interrogation methods deployed by the government were revealed, which should theoretically mean there is no need for a classification of the witness testimonies of these torture methods.  Unless there is something that has not been unveiled. 

Where is the line for national security drawn?  When can the U.S. government stop defending their actions based on national security?  This month, a Senate Committee Intelligence Report on CIA torture was compiled – a 6,000 page document – disclosure of which is highly unlikely.  The document is classified but parts of it have been leaked into the media and it has been reported that the document contains individualised accounts of CIA torture and destroys the theory that torture is necessary and permissible in certain instances (in particular, to finding the location of Osama Bin Laden).  This report reveals “no information obtained by torture was critical to the eventual assassination of the al-Qaeda leader, nor has it been found to be an indispensable element in any of the other terrorism cases that were examined by the Senate committee.”  This report could finally quash the prevailing public belief that supports torture; the misguided belief that torture is an unfortunate necessity for the greater good.  But this report will not be disclosed on national security grounds.  The government will reveal the torture methods but not the torture testimony, because once a face, a human, a story is put behind those torture methods it may change the nature of the security debate. 

National security.  What does this vague phrasing mean?  What constitutes a situation that warrants action under national security?  What is a breach of national security?  During one of the only times that Khalid Sheikh Mohammad will be permitted to speak publicly in these hearings, he announced:

“Many can kill people under the name of national security.  And to torture people under the name of national security.  And detain their children under the name of national security.  I don’t want to be long but I can say that the President can take someone and throw him in the sea in the name of national security.  And so well he can also legislate the killings, assassinations, under the name of national security, for American citizens.”

There is no limit to the extent that the U.S. government will go to save their embarrassment and present a false image of openness. Prima facie, revealing the torture memos in 2009 was a fantastic step towards transparency but on deeper examination it becomes evident that this was merely a stepping stone.  Censorship continues and have been applied in this case, keeping the extent of the secret prisons, torture and renditions unknown.

Fairness, transparency, justice.  Three powerful words bear great meaning, yet fail to have any significance in the Military Commissions process.  

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