Not only has this revelation undermined our client’s faith in his attorneys, but it should also undercut any trust the public retains in the integrity of the military commission system at Guantánamo. The post-9/11 universe of facilities and practices, including Guantánamo, was constructed to produce intelligence and perhaps to exact retribution but not to yield formal justice. The imperatives and mechanics of justice and intelligence gathering are, to a significant extent, incompatible. Nowhere is that contradiction sharper than at Guantánamo, where those two worlds collide.
This incident is only the latest in a succession of embarrassing events that have brought military commission proceedings in high profile cases at Guantánamo to a screeching halt. These include the discovery of eavesdropping devices implanted in smoke detectors in legal meeting rooms, a secret FBI attempt to turn one member of a legal defense team into an informant and the unsuspected ability of the CIA to censor court proceedings, unbeknown to the presiding military judge and the prosecution.
These incidents form part of a mosaic reflecting the culture of Guantánamo and its military commissions. The overall picture shows that this is not a system that can be salvaged and repurposed to perform the delicate work of meting out justice.
It is high time to admit that the makeshift, parallel trial system erected at Guantánamo simply doesn’t function and certainly won’t result in justice being served. It should be scrapped, and the government should revert to the regularly constituted civilian justice system, which, albeit deeply flawed, at least affords participants greater measures of fairness and accountability.