A Final Act for the Guantánamo Theater of the Absurd? ( Harper's Scott Horton ) [View all]

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A new report from Seton Hall University exposes government surveillance of attorney–client conversations

By Scott Horton

The military commissions at Guantánamo have been on hold for roughly two months now, stalled by a pressing question: Were the proceedings inside the state-of-the-art courtroom in fact being manipulated by the CIA? Back in 2009, the Obama Administration inherited a process that verged on being an international laughingstock. Political appointees had manipulated almost every step of the process, pressing to remove any doubt from the outcome. Ultimately, the thin veneer of legitimacy that remained was stripped away when military lawyers — both prosecutors and defense counsel — joined together to expose the political circus.

Team Obama promised to right this system. An interagency review process led to agreement on a significant number of reforms, and Brigadier General Mark Martins, the new chief prosecutor, made the rounds of law schools and bar associations, talking about the government’s intention to restore basic norms of justice to the process. He was persuasive, and even skeptics began to acknowledge that the proceedings had been set back on the path to respectability.

Today, however, that effort is a shambles. The military-commissions process teeters for the third time on the brink of collapse, thanks to the ham-handed snooping and manipulations of the intelligence community. The problems this time were first exposed by a moment of comic ineptitude. During a hearing in the prosecution of Khalid Sheikh Mohammed, journalists and other observers behind the Plexiglas barrier noted that the sound had suddenly gone dead as defense counsel David Nevin recited the name of a motion that referred to CIA black sites. “Who,” queried Judge James Pohl, “turns that light on or off?” He was referring to a flashing red light that indicated when the audio feed was being disrupted. Not the court, it turned out. In the best Wizard of Oz tradition, the man behind the curtain appeared to be in the employ of “another government agency.” Judge Pohl at first seemed indignant over this instance of external control over his courtroom, but later resumed the proceedings, apparently accepting the arrangement as beyond the purview of his pay grade.

While that affair soon dissolved into embarrassed jokes, it paved the way for far more serious charges. Defense counsel began to make noise about the severe limitations imposed on their confidential communications with clients, reporting that their messages were being intercepted, noting that government agents routinely seized approved communications during security sweeps of prisoners’ rooms, and, most seriously, expressing suspicion that their conversations were being monitored. These suspicions appeared to be confirmed when attorneys meeting their clients for conferences discovered that the “smoke detectors” installed in the ceilings above them were in fact supersensitive surveillance devices. Bar associations across the United States denounced all of these machinations as efforts by the U.S. government to undermine the most fundamental of fair-trial rights: the ability of a client to communicate in complete confidence with his counsel.

in full: http://harpers.org/blog/2013/04/a-final-act-for-the-guantanamo-theater-of-the-absurd/