Independent journalist and podcast host John Knefel wrote an article for The Nation in late October detailing his trip to Guantanamo Bay as a witness to the pre-trial hearings of accused 9/11 mastermind Khalid Sheikh Mohammed and several other suspected terrorists.
Knefel describes watching the military commission proceedings as like “[watching] a high-stakes game of Calvinball, in which the rules and parameters are established before your eyes.”
From his report we learn that the government is seeking censor any words the defendants speak:
The prosecution, on behalf of the government, has argued that all utterances by the accused should be “presumptively classified” — that is, every possible statement by should be treated as secret government information — but this request has since been weakened.
If it sounds bizarre that the government can lay claim to an individual’s personal experiences and thoughts, well, it is. The prosecution’s argument is that the five defendants are in a “particularly credible position to confirm or deny” elements of the CIA’s rendition, detention and interrogation program. Having been tortured, they are in possession to describe it, and the government has clear incentives to keep them from doing so.
Perhaps the most amazing piece of information to come out of Knefel’s trip, however, is an exchange between him and Gen. Mark S. Martins, Chief Prosecutor in the KSM trial. While mentioned only briefly in the Nation article, this exchange can be found in full on the Oct. 23 episode of Radio Dispatch, the podcast Knefel hosts with his sister, comedian and journalist Molly. Here’s an excerpt:
Knefel: [...] My question is, are we in danger of creating a permanent alternate legal system that is completely separate from the civilian system?
Gen. Martins: Let me address this. I mean, first of all, Congress passed a statute, signed into law by the President, that says this new rule, OK, as of 2009, we’re getting the meaning in effect(?) in this case. Beyond that, I could say I shouldn’t comment — that’s the will of our people! The sovereign will of our people through our legislature! That has meaning.
Criminal trials, rigorously conducted to the highest standard of proof we know in our law, although I know you’re not satisfied fully, many of you, with the transparency — are transparent. Much more transparent than a lot of other systems, including civil habeas proceedings for determining whether someone’s detained here. I think criminal trials — putting someone on notice of their charges, notwithstanding the concern people have about the (audio wonky) — that’s valuable. That is an instrumentality — an institution for a government that we’ll have to preserve. You can’t do these trials in federal court.
It may not be surprising or any sort of revelation — it’s pretty well known that temporary measures taken by the state have a way of staying permanent, after all — but to hear a government official basically come right out and admit that they’re creating a shadow legal system is still amazing to me.