A Federal Court at GTMO? Get Serious.

by Joshua L. Dratel

Has everyone gone stark raving mad?  Has the U.S.’s Terrorism Derangement Syndrome, so aptly coined by Dahlia Lithwick of Slate, gone viral, like in some horror movie in which the townspeople suddenly begin acting strangely incoherent?  Because in last Friday’s Washington Post, Louis J. Freeh, former director of the FBI, and Eugene R. Sullivan, former chief judge of the United States Court of Appeals for the Armed Forces, proposed that Guantanamo detainees be tried in federal court – but in a federal court located at the Guantanamo Bay Naval Base.

My first reaction was that it was an article from The Onion.  Then I checked the date: nope, not April Fool’s Day.  Hmmm.  It had the ring of one of those phony Saturday Night Live commercials they used to try to sneak by the viewers to see if they were paying attention: “It’s a floor wax and a dessert topping!”

Still unpersuaded that it was ingenuous, I wondered whether it could be an attempt at satire.  Unlikely.  For anyone who remembers Louis Freeh as a prosecutor, judge, or FBI director, he doesn’t do irony.  Ultimately, I was compelled to confront reality:  It was an authentic proposal.  Yet as John McEnroe once put it so eloquently to a Wimbledon linesman, “You cannot be serious!”

In an effort to be charitable, I will not place sole blame on the authors.  Rather, their proposal reflects the utterly pathetic and bankrupt policy and action void that exists with respect to Guantanamo and its detainees.  In that vacuum, any proposal, however daft, attains a certain amount of currency.  Certainly it is more provocative and entertaining than indefinite perpetuation of the stagnant status quo, which is the product of political intransigence and pandering on one side and abject timidity and political calculus on the other.

The problems with the proposal are categorical, and are both conceptual and practical.  Do the authors not realize that both candidates for president in 2008 recognized that the Guantanamo detention apparatus, and what it represents, constitute a national security liability for the United States?  Yet the authors’ solution would be to institutionalize and perpetuate its existence.  Dressing up the proceedings in the cloak of an Article III court would not sanitize Guantanamo. Instead, it would contaminate the sterling reputation of the federal court system.

Many have pointed out that continuing military commissions even at some domestic site, yet stained by the previous Guantanamo incarnations, would be untenable in terms of legal credibility and international acceptance.  The analogy has been to building an apartment complex atop a toxic waste dump.  Yet here the proposal is to build Disneyworld at that same location.  The message to the world would be clear:  We don’t get it, and we never will.  The proposal would effectively continue Guantanamo for another generation at least, and inestimably aggravate the damage it has done and will continue to do to the U.S. and its national security until it is emptied and closed.

The proposal fails miserably on a practical level, too.  Obviously neither Freeh nor Sullivan have been to GTMO (a trip I made 14 times between January 2004 and April 2007), or if they have it was on one of those VIP tours in which you’re whisked around in comfort and then back to the mainland on a nice executive jet.

The food is tolerable only in small doses.  The cable is simply inadequate and the Internet is non-existent.  Forget “sexting” – you can’t even text.  The accommodations at the Guantanamo court complex consist of trailers and tents.  I can see New Yorkers lining up for that in droves, anxious to escape the summer heat to a place that’s . . . hotter.  Can’t beat that $40 per day jury fee, either.

Nor is the notion of a cost savings realistic.  Consider the cost of Guantanamo thus far.  The U.S. has already spent a gazillion (I use that technical term because it is unclear whether the more than $2 billion estimated
to have been spent already on operational, construction, and renovation costs since 9/11 accurately captures all direct and ancillary expenses) on a facility that has to satisfy only18-year olds who wear one pair of clothes (a uniform), have chosen a Spartan life of discipline and duty, and think a year in Iraq is seeing the world.  How much will it cost to outfit Guantanamo so that a federal judge with lifetime tenure, his or her entire staff, court clerks, stenographers and other essential components of federal court proceedings, a team of prosecutors, agents, and support personnel, a sufficient security detail for each, a bevy of court-appointed defense lawyers and their resource teams (which are necessarily substantial for capital cases) – none of whom would be willing or able to subsist on jerk chicken and Mongolian barbecue – would be able to do their jobs adequately, and without capitulating to the increasing urge to flee in desperation to Castro’s side of the fence?   Under current conditions, it would be like The Shining in the tropics.  That $200 million allegedly slated for security for a trial in New York City would start to look attractive, and a bargain by comparison.

Also, who precisely would serve on this jury or preside as judge?  The trial – assuming a conviction and serial penalty phases for each defendant to determine whether the death penalty will be imposed – will exceed a year (with at least that much time required for pretrial preparation, thereby eliminating the authors’ claim of “quick[] and judicious” resolution).  What New Yorker would make that commitment?  Those who would jump at the chance are exactly the type that should not be chosen.  Also, it appears the authors assume the jury would be chosen in New York and then transported to Guantanamo for the trial.  Yet that ignores a salient fact:  Defendants are constitutionally entitled to be present at jury selection, a process that in the 9/11 case could easily consume months.  Conducting jury selection at Guantanamo would mean, based on experience with other terrorism and high-profile capital prosecutions, sending probably 1,000 New Yorkers to Guantanamo, because that is the size of the pool necessary (if not more) to ensure that a fair panel is chosen.  In that case, the Cuban Club better order more rice, and that Starbucks supply plane better be fueled and ready to fly nonstop back and forth to the one outlet on the base.

Even if these logistical and financial problems could be resolved, there still would be intractable problems with the proposal.  Beside limiting the judge and jury pool to volunteers, a daunting prospect for any defendant even in an ordinary case, nothing screams “fair trial” like a jury and judge held hostage for a year more than a thousand miles from home.  One can only imagine the length and depth of deliberations once the evidentiary phase of the trial is concluded – if it were to get that far.  More likely is that after two months the jury would be stopped by the Coast Guard off the Florida Keys paddling furiously towards shore.

All of which raises the troubling question: Do we still have people in such positions of authority so obtuse to the consequences of unthinking policy decisions?  Or is this the inevitable product of a policy completely subservient to fear and the political posturing that exploits it?  I do understand that the absence of any movement by the president or Congress on the issue, and the extreme positions adopted by many, lend surface credence to any proposal, no matter how bizarre, unworkable, and unfair.  Conversely, it is also our duty to identify those positions that lack any sense and to say so.  The only rational explanation is that the proposal constitutes a clever pitch for a television sitcom.  The only item left for decision, then, is who will play Gilligan.

Copyright © 2010 by Joshua L. Dratel

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