Wedded to Contradiction: Something Old, New, Borrowed and Blue at the Military Commissions

Editor's note: This is a post produced by one of NIMJ's recent observers of the military commissions at Guantanamo.

​At the end of an illuminating and distressing week of hearings in the Al-Nashiri case, the paradoxes at Guantanamo Bay continue to unfold. Currently, a Commission is hearing arguments rooted in a bid to suppress evidence allegedly tainted by coercion and prompt the prosecution to take the death penalty off the table.
 
Clean shaven and in Western dress, last Monday, Al-Rahim Hussein Al-Nashiri made a brief appearance in what has been labeled the most modern courtroom in the world. After the alleged “mastermind” of the terrorist attack on the U.S.S. Cole had left the room, his lawyers proceeded to ask a witness whether he could confirm that Al-Nashiri was the “dumbest terrorist” a high-ranking CIA official had ever met. While the witness, Dr. James Mitchell, could not oblige in this respect, he did have significantly more remarkable testimony to offer.
 
Recalling Langley’s first attempts to persuade him to contribute to the development of enhanced interrogation techniques, Dr. Mitchell described how he eventually overcame his reticence and mustered the “guts” to do what he considered needed to be done to prevent thousands more Americans from being murdered in terrorist attacks. Behind layers and layers of technological and physical security measures, the courtroom stared at a screen, watching as counsel for the accused, Anthony Natale, and Dr. Mitchell, at a remote, undisclosed, location, proceeded down the rabbit hole of two decades of War on Terror.
 
Originally, the techniques had been developed to teach Air Force recruits how to withstand interrogation at the hands of the enemy. It was important to apply them properly—there were precisely defined limits for periods of sleep deprivation, decibel levels on loudspeakers had to be carefully monitored and a correct slap demanded a spreading of the fingers as well as exact targeting of the cheek. The properties of the “walling wall” and dimensions of both the “big box” and the “small box” that Dr. Mitchell and his fellow psychologist, Dr. Bruce Jessen, built, were regulated as carefully as the brightness of the lamps that Al-Nashiri eventually learned to avoid by voluntarily crawling into the small box. The same was true for the frequent short, occasional 20-second and rare 40-second “pours” that Dr. Mitchell controlled.
 
Once, as he was “expelling water from his sinuses”, the scrawny subject almost slipped out of the gurney to which he was strapped. This was the last time that Al-Nashiri was waterboarded. Dr. Mitchell was adamant about interrogating by the book. For this reason, he became furious when “NX2” appeared at one of the ten black and other interrogation sites that Al-Nashiri had been transported to and started applying unsanctioned techniques from Korea, Viet Nam and South America, when the accused refused to address him as “Sir”. A belt to strap Al-Nashiri’s wrists behind his back as he was suspended from the ceiling, a broomstick secured in the back of his knees as he was shackled and bent over backwards, a stiff-bristled brush to rigorously scrub both ends of the digestive system, a garden hose to “force feed” from the back end and finally a loaded pistol and a power drill for a mock execution—these were tools and methods that Dr. Mitchell did not approve of.
 
After shouting matches with NX2 and his own involuntary confinement, Dr. Mitchell protested in Langley and succeeded in bringing the “hard times” to an end. Still, years later, when Dr. Mitchell was called to sit in while Al-Nashiri was being questioned by the FBI rather than interrogated by the CIA, he did offer the occasional reminder that it would be better to avoid a return to the “hard times”. In these later years, Dr. Mitchell would bring Al-Nashiri new novels to read and ensure that he could share meals with the other detainees. Once, when Al-Nashiri requested that Dr. Mitchell bring him a Big Mac from the Guantanamo Bay McDonalds and was reminded that the dish he requested likely did not meet Halal standards, Nashiri replied “I don’t want you to tell me if the Big Mac is Halal, I want you to bring it.” In a very odd way, it seemed that Dr. Mitchel had evolved from a tormentor, to a protector and finally a friend of an Americanized Al-Nashiri.
 
Strange as it may seem, this type of perplexing contrast is not unusual at the Guantanamo Bay Naval Station. In some respects, it is an idyllic place, with many features of a suburban American town or a holiday resort, inhabited by warm and hospitable people that look forward to the Mongolian barbecue on Wednesday nights and snorkeling in the Bay at the end of their shift. At times, one does forget about the tortured detainees, several of them likely America’s greatest enemies, being held at an undisclosed location on the island.
 
Certainly, much time has passed since the first of them were brought to the island shortly after the towers came down. The cages at Camp X-Ray are now completely overgrown and the orange jump suits associated with a very different set of prisoners. Still, for all the efforts to ensure that various structures on the island, most notably the “Expeditionary Legal Complex”, are of a temporary character, there is a palpable element of permanence to the site. One suspects that even when this most technologically sophisticated courtroom in the world has been razed, it will not be possible to unring the deafening bell of hypocrisy that was sounded here.
 

For two days, the military judge, counsel for the witness, the defense and prosecution deliberate how to get Al Hila into the courtroom. His attorney explains that Al Hila was prepared to testify—under the condition that he be called before the beginning of Ramadan, which has now just ended. Now, there is great uncertainty regarding the available legal techniques to produce the recalcitrant witness. Does the judge have the power to issue a subpoena against a “foreign national which … may or may not be on government soil”? Can the judge issue an order or a writ to compel attendance? One member of the prosecution teams notes that, at home, “[w]hat I issue are writs of habeas corpus, ad testificandum, then I issue it to the sheriff of Orleans Parish, or Plaquemines Parish or to the … federal facility, and they bring that individual to me.”
 
Cut off from the remaining island by a barbed wire fence and the “cactus curtain”, a great many things must be imported to Guantanamo Bay—from fuel to compensate for the unmaintainable windmills, to the lettuce in the three Subway sandwich shops on base and also the legal concepts at a venue that was chosen precisely because core tenets of American and international law supposedly did not apply there. Apparently, when it is convenient, certain rules of US law do intuitively operate on the island—but not the most fundamental guarantees of a fair trial under the US Constitution, international human rights law and international humanitarian law. At the end of these two days, many things remain uncertain, but one thing is clear—some remarkably fundamental questions have yet to be resolved in these proceedings, including those of State sovereignty and the applicable law.
 
On the last day of the hearings, there is a bearded man in the courtroom donning a long white robe, black vest and a traditional Yemeni head wrap. Refusing to directly answer the questions of the judge, he insists on an opening statement: “First of all, praise be to God almighty. He is the creator of everything and he is able to do anything. … God almighty … prevented injustice among mankind. Whenever any injustice occurs, he created people who are able to correct the injustice and … these people are the judges. Regardless of … whether they are civilian … judges or military justice, they are supposed to be fair. And regardless of the circumstances, a judge needs to be fair. And when that judge is fair, he will find what pleases him in this world and in the afterlife. But if he's unjust, he will find unpleasant things in this life and in the afterlife. That is why we hold the judge in a very high regard. And that's why I respect judges very much, and that is why I expect the judge to give me due respect, regardless of the circumstances or of the audience.”
 
As his attorneys attempt to dissuade him from proceeding with his statement, Al-Hila continues: “I want to say something very important on the topic that I am here for. I'm not here … for you to take whatever you want from me and then you throw me in the trash. I've been here 20 years suffering because of these topics. I was kidnapped from Egypt … I and my family have suffered greatly and we, to this day, … are still suffering. We have paid a huge price and, up to now, we're still paying that huge price … I ask the judge now, why am I here now? Am I … charged with anything? Is anyone … here from all of these high officials and from the press and from the people with authority and from the U.S. government have anything to charge against me? … I have nothing to hide. I'm just afraid that there are some evil people here who will take my answers … and manipulate them against me. … after 20 years of suffering and from lying and all kinds of manipulation. Twenty years I have been telling people if you have anything to charge against me, then take me to a court and bring the charges officially and formally against me. … Give me the right to defend myself, and so it would be an open trial and not a trial that is done under the table or in secret. An open trial that the American people all can see, so that they could know where is the real terrorism. And if you could not, let me go. It's been 20 years already. And you as a judge know, 20 years is like a life sentence. There's no crime that I have committed.” After counsel clarifies that Al-Hila has asserted a right against self-incrimination, he is not questioned further and the Court adjourns.
 
As the observers prepare to leave, there is a sense of sadness in the gallery. The island is home to many of America’s greatest enemies, some implicated in the crime and defining moment of a generation—no punishment can remedy what they have done. After the revenge exacted against these men and others swept up the War on Terror over the past twenty years, there is now evidently a tremendous and laudable effort to deliver justice—to the defendants, the families of the victims and the American people. But it is far from clear that justice can indeed be served under these conditions. Is a fair trial possible, before a military judge, military prosecutors and military defense counsel at a military venue that was chosen precisely because it was believed to accommodate a circumvention of the rule of law?
 
Having faced the old conundrum of the wisdom of Guantanamo, in a new courtroom, where legal concepts are selectively borrowed to both accomplish and defeat justice, one does return home feeling blue. Perhaps, to regain the moral authority that existed before 9/11 derailed the American project, it will be necessary to finally divorce this place.
 
New York, 13 May, 2022

Michael J. Moffatt 

Michael J. Moffatt is an LL.M. Candidate at Columbia Law School and PhD Candidate at the University of Vienna, Austria. His doctoral thesis on “Understanding Double Standards in International Law” consists of a series of case studies, including one on the War on Terror.