Bush reformed them in collaboration with Congress around the time the CIA delivered Nashiri, alleged 9/11 mastermind Khalid Sheik Mohammed and a dozen other so-called high-value detainees to Guantánamo for trials, in September 2006. Then-Sen. Barack Obama was critical of the system but kept it once he became president, and tweaked it again to give the accused greater protections.
But certain aspects of the secrecy continue. Both Nashiri and five 9/11 defendants claim they were tortured in secret CIA custody, but the public cannot learn what they say happened to them, where or who did it. Details of the Bush eras so-called Rendition, Detention and Interrogation program remain classified, although in recent hearings the defendants and their lawyers have been allowed to say the word torture without a censor hitting a white noise button.
Meantime, the no-name motion remains a mystery.
Im not sure what theyre up to, says retired Air Force Col. Morris Davis, a former chief Guantánamo prosecutor who resigned in protest to what he saw as political meddling in the process. One possibility, he said, is the government may be trying to wall of inquiry into how Nashiri was apprehended, where the information came from and what an undisclosed foreign intelligence agency did with him before we got him at Dubai airport in late 2002.
Even though the names of some foreign countries where the CIA had prisons have leaked, those nations participation is still classified, ostensibly to protect relationships with countries that help the United States hunt down al-Qaida and other terror groups.
But with no name on the motion to provide a clue, Davis is at best offering a possible explanation for the secret motion.
And thats something that Fidell says has the effect of eroding public confidence in Guantánamo justice.
Were supposed to be talking about the rule of law. You can have an all-star team of justices Cardozo, Brandeis, Holmes, John Marshall, Stevens, Brennan, take your pick and if theyre working in a closet you can forget about it in terms of public confidence in the administration of justice.
You could have a forum that convicted only the guilty, acquitted only the innocent and rendered reasonable sentences, he said. And if it was done in the dark it wouldnt foster public confidence.