While military commissions themselves are still being debated, even their proponents should be disturbed by recent developments. Although the judge ordered the listening devices disconnected and the push-to-talk change to courtroom audio feed, whether a violation of the attorney-client privilege has occurred has yet to be resolved. The defense will probably make the argument at some point that the incidents thus far have so substantively undermined the attorney-client relationship that it will be impossible for defendants to get a fair trial.
The foundation upon which the military commission system rests is already shaky. The commissions are new and untested, so even basic elements -- such as how to call witnesses and how to screen mail -- have to be litigated. As a result, little of substance in the 9/11 case has been decided and a trial is still years away.
While Martins understandably wants to avoid serious appellate issues in the case, that now seems virtually impossible. There is little doubt, even at this early stage, that any verdict handed down would not face serious challenges on appeal. Meanwhile, after setting the system in motion, the White House seems to have abandoned all interest, not just in the military commissions, but in Guantánamo altogether. By the time any of these appellate issues in the 9/11 case come up, it's likely that President Barack Obama's second term will have ended. And frankly, the constituency that supports the rights of the 166 prisoners at the facility is not one he seems too concerned about.
There was no better indication of this than the president's recent State of the Union address, piped into the hangar-turned-media-center at Guantánamo. The president's failure even to mention the facility stands in stark contrast to his actions four years ago -- when on his second day in office, with 16 retired generals and admirals standing behind him, he ceremoniously signed an executive order to close the Guantánamo detention facility within one year. Several months later at his National Archives speech, Obama said Guantánamo "weakened American national security," was "a rallying cry for our enemies," and "set back the moral authority that is America's strongest currency in the world."
Of the 166 prisoners who remain there, 86 are slated for release. Many of these men have been in Guantánamo for more than a decade but, the Obama administrations claims, for a variety of reasons they cannot be sent home: their home state is too unstable; they would face persecution there; or there's simply no third country that will accept them.
Yet even those approved for transfer with places to go, like British resident Shaker Aamer, have not been transferred. As of last week, Aamer had been in Guantánamo for 11 years. He has a wife and four kids in the United Kingdom, a country that has indicated it is willing to accept him.
Another 46 are designated for indefinite detention -- deemed unsuitable for prosecution yet "too dangerous" to release. Obama signed an executive order on March 7, 2011 providing these detainees the ability to challenge this designation. But the board before which they would appear has yet to even meet. Thirty-four prisoners have been slated for prosecution, but only six of those, including the five 9/11 defendants, face any formal charges as of yet.
Starting in 2009, Congress began enacting a series of progressively more stringent, but not insurmountable, restrictions on transferring detainees out of Guantánamo. The restrictions now bar transfer to the United States even for trial. For transfers to other countries, Congress requires the secretary of defense to sign a certification finding, among other things, that there is little chance a detainee will become involved in terrorism. Meanwhile, the administration continually blames its failure to close the facility on the restrictions imposed by Congress, yet Obama failed to vigorously oppose them. In fact, he twice signed them into law rather than exercising his threat to veto them. In the last signing statement enactment, he claimed he had the constitutional power, as commander in chief, to lawfully override them; needless to say, he has not exercised this authority.
As if to send the message home, at the end of January, the State Department announced that Daniel Fried, special envoy for closing the prison at Guantánamo, was leaving his position to take on a different role and would not be replaced. His duties, read a notice from State, would be assumed by the Office of the Legal Advisor. A spokesman for Fried's office, Ian Moss, told the New York Times that his departure did not mean the administration had given up on closing the prison. "We remain committed to closing Guantánamo, and doing so in a responsible fashion," Moss said. "The administration continues to express its opposition to Congressional restrictions that impede our ability to implement transfers."
That may be so, but expressing opposition to congressional restrictions is clearly not enough. The world is watching. These trials and how the United States conducts them will set, and are setting, a precedent for justice. Although the number may seem small, the indefinite detention -- without trial -- of anyone gives a green light to other governments to do the same. Obama may want to focus on other things, but he was right when he said Guantánamo "weakened American national security" and is "a rallying cry for our enemies." And unless he takes his head out of the sand, he will find his own prophecies coming true.