At Guantanamo, a microcosm of the surveillance state

At Guantanamo last week, a pre-trial hearing in the military commission trials of five men allegedly involved in the terrorist attacks on September 11, 2001, descended into chaos when Air Force Col. Karen Mayberry, the chief defence counsel for the Office of Military Commissions, explained how the Defence Department’s computer network was so untrustworthy that 540,000 supposedly confidential emails, between defence lawyers, had been made available to the prosecution, and seven gigabytes of the lawyers’ files had disappeared.

Some of that data was subsequently restored, although the process took  many months, and Cheryl Bormann, who represents Walid bin Attash, one of the five men charged in connection with the 9/11 attacks, stated that 57 of her investigatory files had never resurfaced.

In testimony, Col. Mayberry also told Army Col. James Pohl, the judge in charge of the 9/11 trial, that the Pentagon had monitored, in real time, internet searches by several members of the defence team.

Col. Mayberry also stated that lawyers for Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, had discovered that some defence documents had been modified by an unidentified third party, at times when none of the defence lawyers had accessed the files, and that hidden files had been added to the folder in which the files were stored.

According to the Pentagon, the problems only began after technicians had made changes in an attempt to allow defence lawyers to access their files both at Guantanamo and from their offices in Virginia, something that has previously been impossible.

Paranoia or just computer problems?

Nevertheless, whether by accident or design, the ensuing problems were so severe that, in April, Col. Mayberry issued a directive telling the defence teams to stop using Defence Department computers for any privileged documents. She explained that the attorneys risked compromising their duty regarding the sanctity of attorney-client privilege if they carried on the issued computers.

As a result, a cobbled-together set of alternatives – using Starbucks Wi-Fi, which Col. Mayberry described as “the best bad option that we had”, as well as using external hard drives, private email accounts, and even submitting handwritten motions to the court – were used by the defence team.

Are the lawyers paranoid, or do they have good reason to suspect foul play?

Certainly, there is a recent history of interference with the lawyers’ work. In February, defence attorneys found out that what appeared to be smoke detectors in  rooms used for attorney-client meetings were in fact listening devices. In a hearing, Navy Capt. Thomas Welsh, the prison camp’s chief staff attorney, testified that he had just discovered that an FBI agent had listened in on a discussion between a prisoner, a prosecutor and defence lawyers, talking about a possible plea deal. 

In addition, during another hearing in the 9/11 trial in January, the audio feed – which has a 40-second delay in case the judge wants to censor classified information – was cut off without Judge Pohl’s knowledge. Farcically, he thought he was the only one with the authority to cut the feed, and he was not amused.

It transpired that, unknown to Judge Pohl, an unidentified entity known only as the “original classification authority” also had the authority to cut the feed. The finger of suspicion points to the CIA, because of their involvement in the torture of the prisoners in “black sites” run by the agency, but this has neither been confirmed nor denied officially.

The military commissions: a 12-year failure

All of the above makes a mockery of the commissions – although that is not unusual. Since they were brought back from the dead by the Bush administration in November 2001, they have struggled to be regarded as credible.

In the early days, they were disrupted by the defendants, who noisily staged boycotts, and in June 2006, the Supreme Court ruled that the entire system violated the Geneva Conventions and the Uniform Code of Military Justice.

Revived by Congress later that year, the commissions have stumbled from one disaster to another ever since. In November 2008, just before George W Bush left office, Ali Hamza al-Bahlul, a Yemeni who had made a promotional video for al-Qaeda, received a life sentence, but only after a one-sided trialin which he had refused to mount a defence, which did little to reassure observers that the revised commissions were credible.

There was worse to come under President Barack Obama – a plea deal in the case of Omar Khadr, a Canadian citizen who was just 15 years old when he was seized after a fire-fight in Afghanistan in July 2002. As a juvenile, taken to a war zone by his father, Khadr should have been rehabilitated under the terms of a UN treaty on the rights of children in armed conflict, but instead he was pressured to accept a plea deal, in which he admitted that he had thrown a grenade that killed a US soldier (even though this seems unlikely), and that this was a war crime, even though it was no such thing, as war crimes generally involve atrocities to which civilians are subjected.

No legal basis

All along, legal experts had pointed out that the war crimes prosecuted in the commissions had no legal basis, having been invented by Congress in 2006 and again in 2009 when they were revived under President Obama.

The last humiliation came last October and in January this year, when the court of appeals in Washington DC, a deeply conservative court, dismissed the convictions against Salim Hamdan, a driver for Osama bin laden convicted of providing material support to terrorism in 2007, and Ali Hamza al-Bahlul, the al-Qaeda video-maker, convicted of material support, conspiracy and solicitation, pointing out that the convictions were illegitimate, because the international law of war did not recognise the charges as war crimes.  

In June, as a result, Army Brig. Gen. Mark Martins, the chief prosecutor for the military commissions at Guantanamo, stated that that the number of prisoners the US military intends to prosecute, or has already prosecuted, is just 20 – or just 2.5 percent of the 779 men held at the prison since it opened in January 2002.

Clearly, it is time for the US government to give up on the military commissions, and to push for Congress to drop its opposition to bringing the men to the US mainland – including Khalid Sheikh Mohammed and his co-defendants –  to face federal courts, where none of the problems that plague the commissions exist.

Whether this will happen or not is open to debate. In November 2009, the Obama administration announced that the 9/11 trial would take place in federal court in New York, but backed down in the face of criticism from the mayor, other officials, business leaders and the media.

Trials must be moved

However, unless the trial is moved, it is a safe bet that the proceedings at Guantanamo will continue to be a dysfunctional embarrassment. David Nevin, the lead counsel for Khalid Sheikh Mohammed, has noted that the intelligence agencies “have an extreme interest in information in relation to the men who are the accused in this case,” and this is certainly true. To put it bluntly, prosecutors are permanently and acutely aware that the defence lawyers will try to present evidence that their clients were tortured in “black sites” run by the CIA, and are committed to trying to prevent this information from being aired in court, while the defence lawyers know that, without this evidence being discussed, there cannot be a fair trial.

Even with this on-going struggle between a government desperate to hide evidence of torture, and defence lawyers just as determined to expose it, the revelations at Guantanamo this year, of secret surveillance and of compromised computer systems, have taken the problems of the commissions to a disturbing new level, one only heightened by the revelations in June, by former NSA [National Security Agency] and CIA employee Edward Snowden, of mass surveillance programs that are so pervasive that Snowden felt it necessary to sacrifice his career to expose them.

Although Snowden’s revelations took place after the surveillance issues and computer problems in Guantanamo, they were picked up on in last week’s hearing.  As Alba Morales of Human Rights Watch described it, Judge Pohl “seemed to question how serious the issue was in light of broader US government surveillance revelations” – those exposed by Edward Snowden – but his attempts to dismiss concerns about surveillance prompted David Nevin to ask, “Are we to just throw up our hands and say, well, the NSA is omnipresent and let’s forget about security at all?”

Last week’s hearings ended with Judge Pohl failing to issue a ruling on the defence lawyers’ request to halt proceedings until the computer problems are fixed. The judge said he would issue a decision “in due course”, but while he is ruminating, the government ought to take notice of how Guantanamo is beginning to reflect the excessive surveillance state exposed by Edward Snowden, and move the trial to a venue – a federal court on the US mainland – where attorney-client privileges are still respected, and there is no shadowy “original classification authority” monitoring everything that takes place.

Andy Worthington is a freelance investigative journalist. He has been researching and writing about Guantanamo since 2006, and has worked with the United Nations, WikiLeaks, Reprieve and Cageprisoners. He is the co-founder of the Close Guantanamo campaign, the author of the book The Guantanamo Files.