Report — From the October 2013 issue

A Kangaroo in Obama’s Court

Will the Guantánamo tribunal execute a man we tortured?

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Compared with Nuremberg’s magnificent Palace of Justice, a Renaissance-revival showpiece where American prosecutors tried Nazi war criminals after World War II, the Expeditionary Legal Complex (ELC) at Guantánamo Bay provides little to please the eye. Enclosing the facility, which houses Gitmo’s military courtroom, is a ten-foot chain-link fence covered with dark-green sniper netting and two dense coils of razor wire. Unseen soldiers keep watch from mobile guard towers. Around the fence runs a security perimeter made of bright-orange Jersey barriers, seemingly the work of a counterterrorism specialist strongly influenced by Christo and Jeanne-Claude. Photographing the complex is strictly forbidden, except from one specific point marked by a 3′×3′ spray-painted square on a walkway, though my attempt to use this square is interrupted by two soldiers puttering by in a golf-cart-like vehicle called a mule, who bark at me until my escort, an unflappable Marine sergeant from the Division of Public Affairs, politely informs them of the picture-taking rule. Sheepish, they drive off. My sergeant dutifully examines my photo to make sure my lens hasn’t strayed; asked to account for such precautions, he answers in a deadpan, “So Al Qaeda doesn’t know where to go when they land with their submarines.”

Artwork © Steven Mumford, who traveled to Guantánamo Bay in February and May of 2013 to make the drawings accompanying Lawrence Douglas’s report. Mumford’s depictions of the pretrial hearings (cover and above) were cleared for publication by the security court officer.

Artwork © Steven Mumford, who traveled to Guantánamo Bay in February and May of 2013 to make the drawings accompanying Lawrence Douglas’s report. Mumford’s depictions of the pretrial hearings (cover and above) were cleared for publication by the security court officer.

The courthouse building, which can be glimpsed only from inside the fenced complex, looks like a Costco, a windowless aluminum structure colored Naples yellow with a pitched roof. This is where the trial of Abd al-Nashiri, the senior Al Qaeda lieutenant alleged to have masterminded the bombing of the U.S.S. Cole in Yemen in 2000, will presumably begin sometime next year. Now wending its way through pretrial hearings, the Nashiri case is one of two presently before the commissions; the 9/11 case against Khalid Sheikh Mohammed (KSM) and four co-defendants is also slowly heading toward trial. These cases, involving the only capital charges to result from Al Qaeda crimes, are not only the most important to be submitted to the military commissions but also the most significant to come before a military court since high functionaries of the Third Reich stood trial in occupied Germany. In his opening address at Nuremberg, Robert Jackson, who had taken a leave from his position on the Supreme Court to work for the Allied prosecution, put the task facing the tribunal poetically: “To pass these defendants a poisoned chalice is to put it to our own lips as well.” Jackson understood that law itself stood on trial at Nuremberg; the unusual tribunal had to demonstrate that it was something other than, as one prominent critic put it, a “high-grade lynching party.”

There are similar stakes here at Gitmo, and serving as a less literary reminder of them is a stuffed animal belonging to Richard Kammen, the civilian lawyer who heads Nashiri’s defense team. Gray with pink ears, it stands about six inches tall. A court security officer first mistook the animal for a bunny, a touch of cute ornamenting the defense’s table. But the MP should have looked more closely, for rare indeed is the bunny that carries a joey in a pouch. He might also have noticed a second kangaroo, a small gold one, glimmering in the spot on Kammen’s lapel where one has grown accustomed in such settings to seeing an American flag. As Kammen, an accomplished lawyer with four decades of trial experience, notes, his choice of lapel pin “is not meant to express my love of Australian wildlife.”

History has more than vindicated Nuremberg; how it will treat the Guantánamo military commissions is another matter. But a defense lawyer’s props hardly settle the issue. My own impressions of the happenings in the ELC courtroom suggest that Kammen’s kangaroos should be seen less as the final word on the military commissions than as a reminder of the extraordinary challenge they face: to demonstrate that a tribunal born of an impatient contempt for due process can prove itself a legitimate institution of American law.

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is the James J. Grosfeld Professor of Law, Jurisprudence, and Social Thought at Amherst College. His most recent book, The Vices (Other Press), was a finalist for the 2011 National Jewish Book Award. Steve Mumford is an artist based in New York City.

 

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