This week, the Pentagon began notifying would-be observers of the first Guantanamo Periodic Review Board hearing, scheduled for November 20th, that the hearing (and all subsequent hearings) will be held in secret. The announcement highlights the challenges government officials face as they try to balance their commitment to transparency with the perceived national security risks associated with public hearings. Given the amount of classified information addressed in these hearings, it is impossible for the government to ever achieve true transparency throughout this process, leaving the public to question whether our country’s purported commitment to justice is being upheld at Guantanamo.
The November 20th hearing, for Yemeni Mahmud al Mujahid, is a parole-style hearing designed to address whether the 33 year-old listed as an “indefinite detainee” should be eligible for release from Guantanamo Bay Detention Center. The hearings are the product of Executive Order 13567, issued March 7, 2011, in which President Obama instructed the Department of Defense to establish a periodic review board process. According to the Executive Order, the goal of the review board process is “to ensure that military detention of individuals now held at the U.S. Naval Station, Guantanamo Bay, Cuba, …..continues to be carefully evaluated and justified, consistent with the national security and foreign policy interests of the United States and the interests of justice.” Essentially, the review boards are designed to force the government to evaluate the case of each detainee, and to offer the detainee the opportunity to advocate on his behalf (with the assistance of a personal representative, provided by the government as well as a lawyer, if he chooses to appoint private counsel). The ultimate purpose of the process is to “assist the executive branch in making informed decisions as to whether detainees held at Guantanamo Bay should remain in law of war detention.”
The Pentagon has stated that these hearings will be conducted in secret because it is unprepared to allow reporters to watch. Instead, the Pentagon plans to offer a website in which interested parties and would-be observers can review all of the unclassified information that is presented during the hearings.
These secret hearings demonstrates just how difficult it is for the government to uphold its commitment to transparency at Guantanamo while simultaneously protecting the U.S.’s national security interests. The review board hearings will undoubtedly involve the discussion of significant amounts of highly sensitive information. The October press release from the DoD announcing the review boards states that the detainees’ personal representatives will need security clearance, and that classified information will be discussed. The press release also states that:
“The detainee’s personal representative will receive full access to the information considered by the PRB, except in the rare instances where doing so would put the national security at risk. Any private counsel for the detainee possessing an appropriate security clearance will also receive access to the information the PRB considers, except in the exceptional circumstances above, or where necessary to protect law enforcement privilege concerns.”
Given the level of classified information that will be discussed throughout the course of these hearings, it is nearly impossible that true transparency was ever a possibility (or will ever be feasible).
True, there are ways to make the hearings more transparent. The government could allow observers and institute a 30 second delay in the observation room, as is standard in the Guantanamo military commission hearings and would allow the government time to cut off the feed and avoid dissemination of classified information. Another option would be to issue transcripts of the proceedings, redacting classified information.
Regardless, any of these options are less than ideal. While they would allow the public to understand the general flavor of the process, there is so much classified information that it would be impossible for the average lay person to truly understand all of the factors that were considered in rendering a decision about a particular detainee. In order to achieve true transparency, the hearings would have to de-classify all of the materials considered throughout the proceedings so that the general public has the opportunity to review it.
While the government’s dedication to protecting classified information is a seemingly appropriate goal, a quick review of the wikileaks website (a veritable treasure trove of classified documents) reveals that the standards for classifying documents are fairly low, and a large percentage of classified documents likely pose little to no threat to our country’s national security. For example, the Guantanamo wikileaks files reveal information about detainees’ education, health, where they were captured, etc.; while this information may have been important ten years ago, at this point it is old intelligence. The majority of this information would likely have little to no effect on our national security if it became common knowledge (in fact, thanks to wikileaks, much of it has been in the public sphere for years with minimal negative repercussions).
Without a doubt, the benefits to maintaining transparency throughout the review board process far outweigh the possible detrimental effects of revealing classified information. Transparency in this process would ensure that the U.S. making its best effort to administer justice at Guantanamo, to follow a procedure and designated set of standards when making recommendations as to the future of Guantanamo’s remaining detainees. Secret hearings give the government far too much latitude; there is no watchdog to ensure that standards are being followed and decisions are being made in a uniform and equitable manner. The majority of these men have been locked up in Guantanamo for nearly a decade; there is no new information in these files, anything the government has on them at this point is stale intelligence. The government should carefully evaluate the allegedly classified information they seek to use in these hearings, and would likely find that the majority of the information poses no real threat to national security. Opening up these hearings to the public in a truly transparent manner would ensure that the U.S. maintains its commitment to justice and would be a step towards improving the negative perception of the U.S.’s activities and proceedings at Guantanamo.
Kelly Ann Taddonio, Senior Research Fellow
Center for Policy & Research