No Comment — April 12, 2013, 11:11 am

A Final Act for the Guantánamo Theater of the Absurd?

A new report from Seton Hall University exposes government surveillance of attorney-client conversations

The military commissions at Guantánamo have been on hold for roughly two months now, stalled by a pressing question: Were the proceedings inside the state-of-the-art courtroom in fact being manipulated by the CIA? Back in 2009, the Obama Administration inherited a process that verged on being an international laughingstock. Political appointees had manipulated almost every step of the process, pressing to remove any doubt from the outcome. Ultimately, the thin veneer of legitimacy that remained was stripped away when military lawyers — both prosecutors and defense counsel — joined together to expose the political circus.

Team Obama promised to right this system. An interagency review process led to agreement on a significant number of reforms, and Brigadier General Mark Martins, the new chief prosecutor, made the rounds of law schools and bar associations, talking about the government’s intention to restore basic norms of justice to the process. He was persuasive, and even skeptics began to acknowledge that the proceedings had been set back on the path to respectability.

Today, however, that effort is a shambles. The military-commissions process teeters for the third time on the brink of collapse, thanks to the ham-handed snooping and manipulations of the intelligence community. The problems this time were first exposed by a moment of comic ineptitude. During a hearing in the prosecution of Khalid Sheikh Mohammed, journalists and other observers behind the Plexiglas barrier noted that the sound had suddenly gone dead as defense counsel David Nevin recited the name of a motion that referred to CIA black sites. “Who,” queried Judge James Pohl, “turns that light on or off?” He was referring to a flashing red light that indicated when the audio feed was being disrupted. Not the court, it turned out. In the best Wizard of Oz tradition, the man behind the curtain appeared to be in the employ of “another government agency.” Judge Pohl at first seemed indignant over this instance of external control over his courtroom, but later resumed the proceedings, apparently accepting the arrangement as beyond the purview of his pay grade.

While that affair soon dissolved into embarrassed jokes, it paved the way for far more serious charges. Defense counsel began to make noise about the severe limitations imposed on their confidential communications with clients, reporting that their messages were being intercepted, noting that government agents routinely seized approved communications during security sweeps of prisoners’ rooms, and, most seriously, expressing suspicion that their conversations were being monitored. These suspicions appeared to be confirmed when attorneys meeting their clients for conferences discovered that the “smoke detectors” installed in the ceilings above them were in fact supersensitive surveillance devicesBar associations across the United States denounced all of these machinations as efforts by the U.S. government to undermine the most fundamental of fair-trial rights: the ability of a client to communicate in complete confidence with his counsel. 

Now a team of investigators at Seton Hall Law School in New Jersey has issued a report that erases any doubt about what was going on: the U.S. intelligence community was indeed monitoring attorney–client consultations, notwithstanding government promises of confidentiality.

[T]he only rooms on the entire Guantánamo Bay Naval Base where defense attorneys are permitted to hold private meetings with their high-value-detainee clients are the same rooms formerly used by the CIA, FBI, and other agencies for the purpose of recording interrogations of the same group of detainees. After the intelligence agencies relinquished control over Camp Echo — the “prison within a prison” — to the military, the military repeatedly repaired and upgraded audio-monitoring equipment that was purportedly never used. However, the military could have learned that the equipment required repairs and upgrades only if it knew how the equipment functioned and that it did not function properly when they attempted to use it. Moreover, the high-ranking officer in charge of Camp Echo who denied knowing that audio-monitoring equipment existed authorized that equipment’s repair. The final maintenance on audio feeds in Camp Echo was conducted mere weeks before the surveillance capabilities were eventually discovered by defense counsel.

After these arrangements were first disclosed, the military ordered that the surveillance devices be disconnected from their power sources, but it didn’t remove them. 

From the outset of the trials, military spokesmen offered lawyers a stream of strained and inconsistent responses to charges that conversations were being monitored. They began by baldly denying the existence of the equipment, then retreated step-by-step as their lies were exposed. The Seton Hall report outlines how this pattern of deception proceeded:

The equipment has been implemented in a practice of multi-layered deception of defense attorneys. As a first layer of deception, defense attorneys were advised regularly that there was no recording in place. As a second layer of deception, the recording devices in Camp Echo huts were disguised as smoke detectors, concealing that even whispers between attorneys and their clients could be monitored. As a third layer of deception, although the defense attorneys were advised that there were cameras in Camp Echo for safety purposes, they were not advised that the cameras were capable of zooming in on the attorneys’ notes and other documents.

To shield itself on the attorney–client privilege issue, the government has long articulated concerns that an imprisoned terrorist will use defense counsel as a messenger to further a terrorist scheme, thereby relying on an important legal exception that strips privilege from communications designed to further a crime. In one prominent case, defense counsel was charged and convicted in such a circumstance. However, U.S. law requires evidence of likelihood that attorneys are engaged in a criminal enterprise before authorizing surveillance of their conversations with a client. Federal law provides precise procedures under which the Attorney General may authorize the monitoring of attorney-client communications inside of federal prison. This raises the question of whether the surveillance equipment was installed for only those cases in which the Attorney General makes specific findings, or whether it was used more systematically.

The government will probably soon offer assurances that information secured by the intelligence community is not passed on to criminal prosecutors. But the Seton Hall report meticulously catalogues numerous assurances of confidentiality given by the government in the past, which have now been discredited. 

The Obama Administration promised that the military commission at Guantánamo would live up to the nation’s historical commitment to justice and the rule of law. Military prosecutors appear to be blameless in the current controversy, and have acquitted themselves professionally throughout. The CIA is quite another story. Senior officials (including one now in line to head the clandestine service) destroyed critical evidence involving some of the prisoners out of fear that it might lead to the indictment and prosecution of intelligence officers. The CIA claims it is trying to avoid the disclosure of classified evidence, but many outside observers see little more than censorship of facts that make the CIA look bad. Whatever the CIA’s exact motive, it should not be interfering with the military-justice process, which should be run by the military according to its own norms and rules. Why the Obama Administration has placed the intelligence service in a position to so egregiously compromise the military commissions is puzzling, and a serious lapse in judgment.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 169 years of
Harper’s for only $23.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

February 2020

Trumpism After Trump

= Subscribers only.
Sign in here.
Subscribe here.

“My Gang Is Jesus”

= Subscribers only.
Sign in here.
Subscribe here.

The Cancer Chair

= Subscribers only.
Sign in here.
Subscribe here.

The Birds

= Subscribers only.
Sign in here.
Subscribe here.

The Skinning Tree

= Subscribers only.
Sign in here.
Subscribe here.

The Interpretation of Dreams

= Subscribers only.
Sign in here.
Subscribe here.

Dearest Lizzie

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Trumpism After Trump·

= Subscribers only.
Sign in here.
Subscribe here.

The city was not beautiful; no one made that claim for it. At the height of summer, people in suits, shellacked by the sun, moved like harassed insects to avoid the concentrated light. There was a civil war–like fracture in America—the president had said so—but little of it showed in the capital. Everyone was polite and smooth in their exchanges. The corridor between Dupont Circle and Georgetown was like the dream of Yugoslav planners: long blocks of uniform earth-toned buildings that made the classical edifices of the Hill seem the residue of ancestors straining for pedigree. Bunting, starched and perfectly ruffled in red-white-and-blue fans, hung everywhere—from air conditioners, from gutters, from statues of dead revolutionaries. Coming from Berlin, where the manual laborers are white, I felt as though I was entering the heart of a caste civilization. Untouchables in hard hats drilled into sidewalks, carried pylons, and ate lunch from metal boxes, while waiters in restaurants complimented old respectable bobbing heads on how well they were progressing with their rib eyes and iceberg wedges.

I had come to Washington to witness either the birth of an ideology or what may turn out to be the passing of a kidney stone through the Republican Party. There was a new movement afoot: National Conservatives, they called themselves, and they were gathering here, at the Ritz-Carlton, at 22nd Street and M. Disparate tribes had posted up for the potlatch: reformacons, blood-and-soilers, curious liberal nationalists, “Austrians,” repentant neocons, evangelical Christians, corporate raiders, cattle ranchers, Silicon Valley dissidents, Buckleyites, Straussians, Orthodox Jews, Catholics, Mormons, Tories, dark-web spiders, tradcons, Lone Conservatives, Fed-Socs, Young Republicans, Reaganites in amber. Most straddled more than one category.

Article
The Cancer Chair·

= Subscribers only.
Sign in here.
Subscribe here.

The second-worst thing about cancer chairs is that they are attached to televisions. Someone somewhere is always at war with silence. It’s impossible to read, so I answer email, or watch some cop drama on my computer, or, if it seems unavoidable, explore the lives of my nurses. A trip to Cozumel with old girlfriends, a costume party with political overtones, an advanced degree on the internet: they’re all the same, these lives, which is to say that the nurses tell me nothing, perhaps because amid the din and pain it’s impossible to say anything of substance, or perhaps because they know that nothing is precisely what we both expect. It’s the very currency of the place. Perhaps they are being excruciatingly candid.

There is a cancer camaraderie I’ve never felt. That I find inimical, in fact. Along with the official optimism that percolates out of pamphlets, the milestone celebrations that seem aimed at children, the lemonade people squeeze out of their tumors. My stoniness has not always served me well. Among the cancer staff, there is special affection for the jocular sufferer, the one who makes light of lousy bowel movements and extols the spiritual tonic of neuropathy. And why not? Spend your waking life in hell, and you too might cherish the soul who’d learned to praise the flames. I can’t do it. I’m not chipper by nature, and just hearing the word cancer makes me feel like I’m wearing a welder’s mask.

Article
“My Gang Is Jesus”·

= Subscribers only.
Sign in here.
Subscribe here.

When Demétrio Martins was ready to preach, he pushed a joystick that angled the seat of his wheelchair forward, slowly lifting him to a standing position. Restraints held his body upright. His atrophied right arm lay on an armrest, and with his left hand, he put a microphone to his lips. “Proverbs, chapter fourteen, verse twelve,” he said. “ ‘There is a way which seems right to a man, but its end is . . .’ ”

The congregation finished: “ ‘Death.’ ”

The Assembly of God True Grapevine was little more than a fluorescent-lit room wedged between a bar and an empty lot in Jacaré, a poor neighborhood on Rio de Janeiro’s north side. A few dozen people sat in the rows of plastic lawn chairs that served as pews, while shuddering wall fans circulated hot air. The congregation was largely female; of the few men in attendance, most wore collared shirts and old leather shoes. Now and then, Martins veered from Portuguese into celestial tongues. People rose from their seats, thrust their hands into the air, and shouted, “Hallelujah!”

Article
The Birds·

= Subscribers only.
Sign in here.
Subscribe here.

On December 7, 2016, a drone departed from an Amazon warehouse in the United Kingdom, ascended to an altitude of four hundred feet, and flew to a nearby farm. There it glided down to the front lawn and released from its clutches a small box containing an Amazon streaming device and a bag of popcorn. This was the first successful flight of Prime Air, Amazon’s drone delivery program. If instituted as a regular service, it would slash the costs of “last-mile delivery,” the shortest and most expensive leg of a package’s journey from warehouse to doorstep. Drones don’t get into fender benders, don’t hit rush-hour traffic, and don’t need humans to accompany them, all of which, Amazon says, could enable it to offer thirty-minute delivery for up to 90 percent of domestic shipments while also reducing carbon emissions. After years of testing, Amazon wrote to the Federal Aviation Administration last summer to ask for permission to conduct limited commercial deliveries with its drones, attaching this diagram to show how the system would work. (Amazon insisted that we note that the diagram is not to scale.) Amazon is not the only company working toward such an automated future—­UPS, FedEx, Uber, and Google’s parent company, Alphabet, have similar programs—­but its plans offer the most detailed vision of what seems to be an impending reality, one in which parce­l-toting drones are a constant presence in the sky, doing much more than just delivering popcorn.

Article
The Skinning Tree·

= Subscribers only.
Sign in here.
Subscribe here.

Every year in Lusk, Wyoming, during the second week of July, locals gather to reenact a day in 1849 when members of a nearby band of Sioux are said to have skinned a white man alive. None of the actors are Native American. The white participants dress up like Indians and redden their skin with body paint made from iron ore.

The town prepares all year, and the performance, The Legend of Rawhide, has a cast and crew of hundreds, almost all local volunteers, including elementary school children. There are six generations of Rawhide actors in one family; three or four generations seems to be the average. The show is performed twice, on Friday and Saturday night.

The plot is based on an event that, as local legend has it, occurred fifteen miles south of Lusk, in Rawhide Buttes. It goes like this: Clyde Pickett is traveling with a wagon train to California. He tells the other Pioneers: “The only good Injun’s a dead Injun.” Clyde loves Kate Farley, and to impress her, he shoots the first Indian he sees, who happens to be an Indian Princess. The Indians approach the Pioneers and ask that the murderer give himself up. Clyde won’t admit he did it. The Indians attack the wagon train and, eventually, Clyde surrenders. The Indians tie Clyde to the Skinning Tree and flay him alive. Later, Kate retrieves her dead lover’s body and the wagon train continues west.

Cost of renting a giant panda from the Chinese government, per day:

$1,500

A recent earthquake in Chile was found to have shifted the city of Concepción ten feet to the west, shortened Earth’s days by 1.26 microseconds, and shifted the planet’s axis by nearly three inches.

Americans evacuated from Wuhan did Zumba.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Jesus Plus Nothing

= Subscribers only.
Sign in here.
Subscribe here.

By

At Ivanwald, men learn to be leaders by loving their leaders. “They’re so busy loving us,” a brother once explained to me, “but who’s loving them?” We were. The brothers each paid $400 per month for room and board, but we were also the caretakers of The Cedars, cleaning its gutters, mowing its lawns, whacking weeds and blowing leaves and sanding. And we were called to serve on Tuesday mornings, when The Cedars hosted a regular prayer breakfast typically presided over by Ed Meese, the former attorney general. Each week the breakfast brought together a rotating group of ambassadors, businessmen, and American politicians. Three of Ivanwald’s brothers also attended, wearing crisp shirts starched just for the occasion; one would sit at the table while the other two poured coffee. 

Subscribe Today