Another week of hearings at Guantánamo, another series of jaw-dropping revelations and rulings that underline the futility of the whole enterprise. That the system isn’t working has long been obvious. Now the tragedy is turning into farce.
Exhibit A: The disclosure that the FBI allegedly tried to turn a member of the defense team for 9/11 defendants into a confidential informant, spying on colleagues on behalf of the U.S. government.
Did the FBI not realize that by doing so the agency was damaging the trial procedure at Guantánamo (such as it is)? Did it really believe it could flip a member of the defense team and keep it secret? No wonder some skeptical family members of 9/11 victims believe the whole thing was a deliberate effort to derail the hearings. What else are they to think?
Army Col. James L. Pohl did the only thing he could, issuing a bench order to anyone who ever served on the defense teams of the Sept. 11 case to find out if any of them indeed were approached and asked to sign a nondisclosure agreement about the contact. The notion that you can commit an illegal act and get away with it by making the other party sign a nondisclosure agreement is itself farcical. Inspector Clouseau would approve.
The upshot is another delay in an absurdly long process. This is the 10th round of hearings for the 9/11 defendants since the five accused were formally charged (finally) two years ago. If a violation occurred, it could require reappointment of a new defense team, setting the process back yet again for who knows how long.
Here’s why these disclosures matter: The American justice system is only as good as the worst practices it tolerates, and the practices at Guantánamo serve only to bring discredit on the very concept of justice.
Prolonged incarceration without formal charges, evidence withheld, limited access by the public, defendants subjected to torture after their capture, severely limited rights to object by the defense, hunger strikes, etc. Now government spying on the defense. All this and more is what passes for justice at Guantánamo, and it is only thanks to a series of U.S. Supreme Court rulings for the defendants that matters aren’t even worse.
It could get even more embarrassing for the government. In a separate case on Thursday, Judge Pohl ordered the CIA to give defense lawyers details — names, dates, places — of the CIA’s secret overseas detention and interrogation of the man accused of planning the the USS Cole bombing.
This sets up another showdown over secrecy and the CIA’s “black sites” overseas. It also sets the stage for another extensive delay, and possibly another trek to the Supreme Court.
At this rate, it looks less and less likely that the 9/11 defendants will ever be brought to trial, and victims and family members will have to wait a very long time to have their day in court, unless Congress were to, say, create a conventional federal district court down there. Fat chance.
The frustration of family members of the victims is all the more infuriating because the federal criminal-justice system has shown time and again that it can handle suspects accused of terrorism.
Hundreds of cases have been tried across the country, mostly in New York federal court, with judges and juries rendering guilty verdicts in virtually all significant cases.
And that is another eminently practical reason that the whole Guantánamo project should be shut down: It doesn’t work.