Last week at Guantánamo, a farcical dance played out, as it does every six months or so. Representatives of the US mainstream media — and other reporters from around the world — flew to the US naval base at Guantánamo Bay, Cuba, to witness the latest round of the seemingly interminable pre-trial hearings in the cases of Khalid Sheikh Mohammed and four other men accused of masterminding, or otherwise facilitating the terrorist attacks of September 11, 2001 on New York and Washington D.C.

The farce of the Guantánamo trials is, by now, well established, although last week’s hearings introduced the novelty of a hidden hand, unknown even to the judge, flicking an invisible switch to silence potentially embarrassing testimony, and the proceedings also took place against the backdrop of two courtroom appeals that have dealt savage blows to the claimed legitimacy of the commissions.

In the case of the 9/11 trial, a permanent feature is the seemingly insoluble tussle between the prosecution and the defense. On the one hand are the attorneys for the accused, whose job is to try and ensure that their clients do not receive unfair trials. This involves attempting, incessantly, to point out the elephant in the room — the fact that all the men were held for many years in “black sites” run by the CIA, where they were subjected to torture, approved at the highest levels of the government during the Bush administration, even though torture is a crime. On the other hand are the prosecutors, whose job, above all, appears to be to hide all mention of torture. In the middle is the judge — in the case of the “high-value detainees,” Army Col. James L. Pohl, who replaced Marine Col. Ralph Kohlmann as the Chief Presiding Officer for the Military Commissions on January 6, 2009. Read the rest of this entry »

When is a war crime not a war crime? When it is invented by the executive branch and Congress, and implemented for six years until a profoundly Conservative appeals court strikes it down.

The invented war crime is “providing material support to terrorism,” and on October 16, 2012, a panel of three judges in the D.C. Circuit Court (the Court of Appeals in Washington D.C.) threw out the conviction of Salim Hamdan, a driver for Osama bin Laden, who had received a five and a half year sentence for “providing material support to terrorism” at the end of his trial by military commission in August 2008 (although he was freed just five months later, as his sentence included time already served).

In its ruling, the court stated, “When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime.”

For anyone who has followed the history of the military commissions in any depth, the result was not completely unexpected. Revived by the Bush administration in November 2001, specifically for trying prisoners seized in the “war on terror,” the commissions were struck down by the Supreme Court in June 2006, but were then revived by Congress, when “providing material support to terrorism” and “conspiracy” were included as war crimes, even though there was no precedent for doing so. Read the rest of this entry »