Later this week, the trial of an alleged al-Qaeda bomber and current Guantanamo Bay detainee suspected of orchestrating the 2000 bombing of the USS Cole will continue, and one of the first items on the docket is a top secret motion from the government. Classified motions are not exactly rare in military trials against detainees, but this one is particularly interesting. Those who know the contents of the motion are barred from discussing any of its contents, and even the defendant, Abd al-Rahim al-Nashiri, and his defense team are not allowed to obtain declassified information regarding the motion unless the Army judge presiding over the trial compels it. In fact, al-Nashiri’s lead attorney told reporters that his defense team had to fly to Washington, D.C. just to read it.
Army Brig. General Mark Martins, the government’s lead prosecutor on war crimes, insisted that his office was not using classification to cover up any embarrassing episodes, stating that there are “important narrow occasions” where the government may classify information “to protect national security interests.” Still, the motion has already attracted negative attention from critics of the Pentagon court, which uses the motto “Fairness – Transparency – Justice.” Yale law professor Eugene Fidell likened the motion to playing charades in the dark. Even before news of the classified motion was released, a defense attorney filed a motion in May opposing any closure of future motions against al-Nashiri.
Military hearings at Guantanamo have been criticized for some time due to concerns over secrecy and the legitimacy of hearings against detainees, and this news will only add fuel to the fire. The government is seeking the death penalty against al-Nashiri, and anything less than full disclosure of the government’s case against him leads to serious questions regarding the fairness of military trials against detainees. In fact, Professor Fidell was quoted as saying,
“We’re supposed to be talking about the rule of law. You can have an all-star team of justices – Cardozo, Brandeis, Holmes, John Marshall, Stevens, Brennan, take your pick – and if they’re working in a closet you can forget about it in terms of public confidence in the administration of justice.”
The timing of this news was poor for the government in light of the recent leak of information regarding the NSA’s surveillance scandal. With public concern regarding government secrecy rapidly growing, we should expect a great deal of criticism regarding the use of classified motions against detainees at Guantanamo. And when the stakes are so high, we should be calling for more transparency and legitimacy in trials against detainees.
Chris Whitten, Research Fellow
Center for Policy and Research