In the wake of the New York City attack, commentators have criticized Donald Trump for describing the US justice system as a ‘joke’ and a ‘laughingstock’ and initially saying that he wanted to send the driver of the truck Sayfullo Saipov to Guantanamo, though he later walked that back.
That last suggestion reveals not only Trump’s ignorance about how the US justice system works, hardly a surprise, but also his stupidity, again not a surprise. The best thing to do would be to treat Saipov like the common criminal he is and charge him with multiple murders. To put him in Guantanamo, even if it were possible, would be to elevate him to an enemy combatant, and thus in his eyes and those who think like him as having a much more exalted status as a warrior.
The US justice system, while not perfect, is by no means a joke or a laughingstock. But that description applies much more closely to the military tribunal system that has been set up in Guantanamo where torture has been used and many of the rights that protect the accused have been violated. The latest example is the sentencing of a US brigadier general to prison for contempt because he protested the fact that the government was listening in on conversations between attorneys and clients, a serious breach of confidentiality.
The Guantanamo Bay military tribunals on Wednesday won their first conviction without a plea deal since 2008. Only it wasn’t a terrorist who was convicted – it was a one-star Marine general sticking up for the rights of the accused to have a fair trial.
In defending the principle that attorneys ought to be able to defend their clients free from government surveillance, Brigadier General John Baker was ruled in contempt of court and sentenced to 21 days in confinement. He also must pay a $1000 fine.
Earlier this month, three civilian attorneys for Abd al-Rahim al-Nashiri, the accused bomber of the USS Cole in 2000, abruptly quit the death-penalty case. The attorneys said that they had significant reason to believe the government was listening in to their communications. Spath, the judge in the Nashiri case, barred them from discussing the issue with Nashiri, since it was classified. Nashiri had lost his lawyers without ever knowing exactly why.
Baker supported the Nashiri attorneys’ decision to quit – and believed he, as chief defense counsel, had all sufficient authority to permit them to walk. Baker released them on October 11. But, facing the prospect of the Nashiri death-penalty commission snarling to a halt, Spath disagreed, and ordered them to return to Guantanamo.
Instead, Baker showed up at the war court this week, without now ex-Nashiri attorney Rick Kammen and Kammen’s team. Spath instructed Baker to change his mind and instruct Kammen and the two other attorneys that they still represent Nashiri. Baker did not, believing that Spath lacked the authority to do so. On Wednesday, Spath held Baker in contempt and ordered him to 21 days’ confinement in his Guantanamo quarters.
Baker had a history of supporting unmonitored attorney communications, which are a bedrock principle of civilian trials. In June, shortly after learning of the suspected surveillance on the Nashiri lawyers, he advised defense attorneys “not to conduct any attorney-client meetings at Guantanamo Bay, Cuba (GTMO), until they know with certainty that improper monitoring of such meetings is not occurring,” according to a letter obtained by the Miami Herald.
“At present,” Baker continued, “I am not confident that the prohibition on improper monitoring of attorney-client meetings at GTMO as ordered by the commission is being followed.”
No wonder Trump likes the Guantanamo system since it violates so many legal norms. He would probably would like it even better if it authorized summary executions without trial.