Guantanamo: Litigation

Amy Davidson on the Guantánamo Red Light Mishigas

By Steve Vladeck
Wednesday, January 30, 2013, 10:06 AM

Although our own coverage of this week's pre-trial proceedings in the 9/11 military commission trial at Guantánamo already covered the issue in some detail, I couldn't help but be taken by Amy Davidson's post on the New Yorker's Daily Comment blog on "Red-Light-Gate"--the question of who, other than the presiding judge, has the ability to immediately censor statements made on the record at the 9/11 pre-trial hearings, and what that question says more generally about the specter (if not the reality) of these hearings. As she puts it,

The petty absurdities at Guantánamo are hard to separate from the grand ones. And so we are left with proposals for prison sleepovers, second-guessed secrets, and an unseen audio-visual club, even as the majority of the prisoners have never been charged with anything. Those questions, like that of the conspiracy charges, will certainly be the subject of more arguments and motions as the pretrial hearings continue this week. Someone may even say something that casts some light on what we hope to accomplish at this point in Guantánamo— that is, just as soon as the court figures out who is pushing all the buttons.

Most of our readers probably know how I feel about the commissions--that I'm not opposed to them in general as a legal matter, but that I think they suffer from a series of specific (and, in some cases, substantial) legal and/or policy defects. But even for those less skeptical of the commissions than I am, it's hard to see this week's developments as anything other than one more example of how things would've been easier--for the prosecution, for the defense, for the judges, and for the public--had these cases been brought in Article III civilian courts. At least from my perspective, the legitimacy of the proceedings does not just depend upon the perception that the defendants received a fair trial; it depends upon the perception that what transpired was as close to a "normal" criminal trial as is possible under the circumstances. And if this week's mishigas is any indication, we're not even close right now...