JURIST Guest Columnist Kathleen Doty of the American Society of International Law argues that justice has not been best served in Guantanamo Bay military trials...
In August 2001, I stood inside Cuba and looked through the gate into the US Naval Base at Guantanamo Bay. It was an overwhelmingly sleepy place. The bored service members staffing the gate were thrilled to flirt with my friends and me American co-eds on a semester abroad at the University of Havana.
Last week eleven years after that visit, and eleven years after the attacks that followed on September 11, 2001 I found myself inside Guantanamo, looking through barbed-wire fencing into Cuba. With others who had been observing military commission proceedings at Camp Justice, I rode in a US government vehicle, bound for the chartered plane that would return us stateside. As we bounced along the perimeter, flanked by guard towers flying the American flag, I pondered this surreal place.
The entire island on both sides of the fence is marked by displays of governments' power, militarization and propaganda. Beneath both regimes are people simply living their lives, whether it is standing in line for a rice ration or standing in line at the Navy Exchange. On the Cuban side, most citizens dream of consistent electricity, of the ability to travel and of a good party on Saturday night. On the Navy side, military personnel dream of unblocked Skype, of the day they get to go home to their friends and families and of more things to do when the workday ends. All in Cuba, it seems, are keeping their heads down, doing what they're told and making the best of it; hoping for a better life.
I have not visited the camps that house prisoners on either side of the fence in Cuba. Yet I have felt the omnipresence, on both sides, of detention. On the Cuban side, political dissidents languished in prison under Fidel Castro's rule. Although Raúl Castro freed some, he has mostly continued the tradition of arbitrary arrests, sham trials, and ultimate imprisonment for persons who speak out against the government. On the American side, 779 people have been held in the military prison since 2002. Some took their last breaths there. Many of the approximately 150 now at Guantanamo have been detained for more than a decade.
One American soldier with whom I spoke does intelligence work at the camps. She told me that although the camps are relatively dark inside and the workers speak in hushed tones, the detainees are treated well. The disdain in her voice was obvious as she told of the endless hours they play video games, sit together talking, or go outside, anytime, for about fourteen hours a day. It didn't strike her as a bad life. When I asked her whether she thought about what the prisoners must feel, trapped for ten years like that, likening it to her frustration at being stationed at Guantanamo, even though she can do whatever she likes when she gets off of work. She didn't answer immediately. But a few hours later she leaned over and said: "You know, I was thinking about it. They are people, too."
A difference between the political prisoners in Cuba and the detainees at Guantanamo is that largely, the Cuban political prisoners are being held for "offenses" that haven't harmed anyone. While it was not always the case, today most detainees remaining at Guantanamo are alleged to have contributed to devastating loss of life. Even so, as I walked through the two security checkpoints and into the prefabricated building that houses the "courtroom" at Camp Justice, I couldn't help but think that American justice simply isn't rendered in a trailer.
Two days of pretrial hearings in the case of Abd al-Rahim al-Nashiri, who is alleged to have plotted the 2000 bombing of the USS Cole in Yemen, gave me some confidence. The judge is shooting for fairness, and the attorneys are skilled at their work. But we have had al-Nashiri in custody for over a decade, and are still only in the pretrial phase. Arguments persist about whether the courts themselves are inherently unfair. It is stunning that our country, which enjoys a functional and impartial judiciary at home, still opts for this slower, semi-secret forum with its untested rules.
I don't know whether my concern is shared by the victims and victims' relatives who attended the hearings with me. It is hard to believe that it is. They sat proudly, some in American flag-printed shirts, watching with grave concern. And watch they should. They lost friends, sons, and daughters, and are understandably angry. Yet only ten of them, plus a companion for support, are allowed at each hearing. A closed-circuit feed to Norfolk, Virginia, where the USS Cole was based, seems hardly a substitute for the kind of public trial in open court that these people, and the defendant, deserve.
On the second day of hearings, the defendant spoke directly to the judge about the use of belly chains in the camps and in his transport, and requested better treatment. A row behind me, a family member exclaimed with disgust: "This is better than HBO Comedy."
Sadly, I think the joke is on us.
Kathleen Doty, a lawyer who is Publications & Program Manager at the American Society of International Law in Washington, observed Guantanamo hearings on behalf of the National Institute of Military Justice. She studied abroad in Havana while an undergraduate at Smith College.
Suggested citation: Kathleen Doty, In Cuba: Justice in Gitmo and Across the Fence, JURIST - Hotline, Nov. 16, 2012, http://jurist.org/hotline/2012/11/kathleen-doty-justice-guantanamo.php
This article was prepared for publication by Jordan Barry, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com