Some odd doings at Gitmo yesterday.  Potential guilty pleas, then orders for two mental competency exams, then no pleas at all. So what’s up? Plenty.

Last night, I spoke with Anthony Romero of ACLU, who spent the day in Gitmo observing proceedings.  When asked whether the incoming Obama administration will finally close Gitmo, the answer is no one knows for certain — but public pressure is essential to making it happen.  

Watch as former Gitmo prosecutors, in this new documentary from ACLU and Brave New Films speak plainly about inherent flaws in a tribunal system adverse to rule of law fairness.

There are open questions on whether guilty pleas can be accepted from some pro se defendants — especially those previously subjected to torture, and if plea acceptance could mean potential death penalty sentence due to mental competency concerns.  So do trial proceedings go forward — or not?

There is a political undercurrent as well.  

How much is kabuki from the Bush Administration to rush closure to protect secrets and legacies?  What about the concomitant rush toward martyrdom by high profile detainees, milking Bush failures for worldwide PR value before things are potentially change under a new administration?

Imagine if we had begun this entire enterprise respecting the rule of law, using existing mechanisms which worked well for prior military courts and terrorism prosecutions. There would be no PR splash, and the US would not have to rebuild a tattered legacy on human rights and justice.  But here we are.

The BBC had a recent interview with Col. Vandeveld — the prosecutor who resigned because of disagreements over trial fairness and conduct.  He had this to say to his hometown paper earlier this year:

"…what I found, and what I still find, is that discovery in even the simplest of cases is incomplete or unreliable."…the deficiencies at Guantanamo have hurt the standing of the United States.

"The result has been a denial of due process, and the derogation of America across the world," he said.

"There is no question that many of the detainees are unrepentant terrorists, some mass murderers, but the quality of justice cannot differ simply because of the gravity of the crime.

So, what has the Bush Administration done to rectify this after recent SCOTUS smackdowns? There are now attorneys assigned to various defendants, but still substantial problems with translators, with counsel/client relations, with serious due process issues from withheld exculpatory material, and with rushed proceedings and a heavy-handed push to finish things before Bush leaves office.  Nice shiny windowdressing, but it’s hell in the trenches.

Nothing like a little Potemkin justice for legacy’s sake.

There is a January 4th deadline for motions filings on competency exams. Depending on those and related rulings, trial or plea and sentencing proceedings may go forward from there. Conceivably, sentencing of several of these defendants could be underway before Obama ever takes the oath of office.  Is this an effort to tie Obama’s hands?

None of this resolves the conundrum of 60 or so innocents still being held seven years later — who have been cleared of all charges but cannot be returned to home nations refusing to take them or threatening harm if they return.  

Don’t we owe the wrongfully imprisoned something better than a tiny cell in purgatory?  Especially those found to have been entirely innocent – a number of whom we simply bought through a bounty system?  

Why is any of this important?

Because the Bush Administration is stage managing proceedings, even now, so that the worst of American conduct never sees the light of public scrutiny. No matter what sort of filth Khalid Sheik Mohammed may be: Is he more odious than Hermann Goering or Ernst Kaltenbrunner, both of whom were convicted in public trials in Nuremberg? Are we somehow less competent than we were after the 1993 bombings of the Twin Towers, wherein we convicted terrorists involved in US courts?

Why do we seem so small and weak compared to giants like Robert Jackson? 

Obama enters office with a clean slate, having promised to close Gitmo. This is a huge moral advantage, pledging to work toward upholding the rule of law and justice.

Riddle me this: what rationale does the right have in trying to force Obama into a defensive crouch on this?

Is it (a) dividing him from his allies up front — both on the left and around the world — so that he’s on the defensive instead of moving things forward from a strong stance? (b) deflating his moral and ethical strengths, attempting to weaken him before he begins? (c) performing CYA, so that their own role in misdeeds never gets revealed publicly? or (d) all of the above and about twenty more things I haven’t thought of yet?

I’m puzzled by what folks like Jack Goldsmith and Benjamin Wittes are trying to do with their "it’s going to be too hard" barrage.  But it’s too close to yesterday’s Reuters blip to be a coincidence.  Someone’s making a big effort to squelch reforms as stillborn in the Beltway village.  If I were Obama, I’d be asking myself who and why…and whose rear ends they may really be trying to cover.

On a day when the Second Circuit will rehear the Mahar Arar case?  Isn’t it time we started asking all of the questions?

(YouTube — Turley on Maddow’s show talking Gitmo and the rule of law)