I arrived in Guantanamo Bay in late August, nearly sixteen years after the murders of my partner and brother-in-law, to attend the pre-trial hearings of Khalid Sheikh Mohammed and his four co-accused conspirators in the attacks of September 11, 2001. When I embarked on this voyage years ago it was with the intent of opposing the death penalty—a matter of not killing that seemed straightforward to me then, as it does now. In the intervening years and as the process has extended into a sixth year of intense litigation, the stakes in the legal issues and in the larger search for justice and a reduction in the toll of war have more and more come into view.
The trial, when it eventually begins, will initially be concerned with the litigation of evidence within the framework of the Military Commissions Act (2009). Decisions on what constitutes legitimate evidence and what lines of argument will be legally admissible or feasible will be made in the current pre-trial phase. Here, the issues posed by the vehicle of military commissions, access of the defense to classified evidence, impact of torture on subsequent interrogations, and relevance and category of “alien unprivileged enemy belligerent” are all in question. These legal questions are important in contesting the shape of our post-9/11 world. They are potentially precedent-setting for the still emergent law of war. The larger debates and the cultural elaborations surrounding civilian casualties, war and retribution reveal the depths to which violence has insinuated itself into the fabric of life.
The encompassing framework of the proceedings at Guantanamo Bay is that of lawfare, the fusion of law and warfare that allows war to enter into legal proceedings, asymmetrically and dangerously. The framework of lawfare is most obvious in the circumstances of the proceedings: They are those of the military commissions of a nation charging alien combatants in wartime, and are conducted on an offshore naval base. At the same time, these procedures are formal systems of litigation, bound by the norms of an adversarial legal system and sub-culture.
Upon arrival in Guantanamo Bay, each family member and survivor is given documents from prosecution and defense teams and a copy of the statement made (or assumed to have been made) by the accused upon the opening of the first round of pre-trial hearings: “The Islamic Response to the Government’s Nine Accusations” (2009). This document, widely available on the Internet, eloquently denounces the charges against the accused and legitimates their actions as an honorable and religious response to prior iniquities committed by the United States. In effect, the authors of the statement incriminated themselves. This document is always distributed prior to each session. On this occasion, it was also the subject of oral argument on the opening day. One of the defense teams moved to suppress the document on the grounds that two of the accused did not have the legal standing to have made this statement to the court and questioned whether it had, in fact, been accepted by the court. There are evidentiary questions, as well, about the degree of knowledge and involvement of two of the accused that will be advanced later. Nevertheless, this and other (disputed) material the prosecution will present as evidence suggest that the weight of the trial will rest more heavily on the penalty phase, that is, the anticipated point at which a guilty verdict would be followed by consideration of the death penalty and of arguments for mitigation.
The future of the proceedings is faced with conflicting proposals about a way forward, each pending judicial ruling. The prosecution had, in July, filed a motion for setting milestones designed to lead firmly to a start date for the trial in January 2019, potentially expediting matters faster than the defense considers appropriate. In August, four of the five defense teams argued a motion to recuse the military judge and prosecution team and for abatement (dismissal) of the case, in a dramatic session extending to voir dire questioning of the judge himself. The central issue was the decommissioning (destruction) of the black site where Khalid Sheikh Mohammed had been tortured. The site had been destroyed without the expected prior notice to the defense that would have allowed the defense to contest its decommissioning in time to preserve evidence. This lack of notice resulted in a meticulous legal probing both of procedural steps followed (or not) over a period of years and of responsibility for each step. A critical element in this matter is the authorized practice of restricting direct access to evidentiary material on national security grounds through a process in which the judge is asked to approve an acceptable substitute for original material that will not be provided even to attorneys with security clearance. In this case, it was also determined that the judge had not seen the actual black site prior to approving substitutions for it—something he himself confirmed. Torture is a central and exceptionally evocative element hanging over the entire proceedings in Guantanamo Bay. It raises basic questions about the legitimacy of the trial, and specific questions about the legitimacy of evidence in the guilt phase and what could appear as mitigation in the penalty phase.
More fundamentally, the legal framework is itself a subject of litigation that goes to the heart of the emerging law of war, both as law to be practically applied and as validated expression of national and international norms. One window on this is through the charge against the accused of “murder in violation of the law of war.” “Murder” is not a crime chargeable within the framework of the Military Commissions Act. In the March session this year, a defense team made the thought-provoking oral argument that relevant case law failed to provide sufficiently clear criteria for “murder in violation of the law of war” to withstand dismissal for being too vague to permit a fair defense. The explicit and direct goal of this argument was defense of the accused. However, the wider implication was to underline the inadequate legal protection from murder for civilians in war.
In the present session, a related defense motion that was introduced argues that, if a state of sustained hostilities did not obtain at the time of the crime, it also would fall outside the jurisdiction of the Military Commissions Act. That is, the charge requires a state of war. Attorneys for both the prosecution and the defense see this motion as departing from the fixed points of an Al-Qaeda declaration of war in early 1998 and the absence of a matching United States declaration of war prior to September 11, 2001, generating a need to demonstrate a sustained pattern of hostilities. Whether the US cruise missile strikes in Khartoum, Sudan and Khost, Afghanistan later that year, following the attacks on the US embassies in Kenya and Tanzania, establish that state of war will be the subject of contention. Although the status of hostilities prior to 2001 will be decisive, the over-arching framework is a longer linear narrative of retribution: It extends from unknown (and perhaps endlessly retreating) precedents to an indeterminant continuing future.
If we are looking for justice, retribution is not the place to look. It offers a perpetual military solution to something for which there cannot be a military solution. It denies the irrevocable truth that it cannot give another moment of life to those who are lost nor can it give relief to we who remain. It sets people against each other and drives its own relentless logic ever more deeply into our social institutions. It is a powerful vehicle for perpetuating the conflict and war that make the world less just.
Not long ago as I was gathering material for an archive, I came upon the order of service for the first memorial service, in lieu of a funeral, that we held for my partner, Christine Egan, on October 12, 2001. There was an insert of which the front was an early graduation photo from which she looked out on the world in innocence. On the back was the text of our family’s reading, a poem from one of the first books she had given to me. William Blake’s “On Another’s Sorrow” opens: “Can I see another’s woe/And not be in sorrow, too?/Can I see another’s grief,/And not seek for kind relief?”
Hirsch, S.F. 2006. In the Moment of Greatest Calamity: Terrorism, Grief and a Victim’s Quest for Justice. Princeton: Princeton University Press.
Judd, E.R. (Ed.). 2006. War and Peace special issue. Anthropologica, 48(1).
Ní Aoláin, F. and Gross, O. (Eds.). 2013. Guantanamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective. Cambridge: Cambridge University Press.
Waterston, A. (Ed.). 2009. An Anthropology of War: Views from the Frontline. New York: Berghahn.
Ellen R. Judd is distinguished professor and professor of anthropology at the University of Manitoba. She is currently working on the political economy of access to health care and on pathways to mutuality. She is co-editor of a forthcoming volume on Cooperation in Chinese Communities: Morality and Practice.
Christine Egan was a nurse practitioner and medical anthropologist in the First Nations and Inuit Health Branch of Health Canada, and a member of the American Anthropological Association. At the time of her death, she was designing a program to address tuberculosis in First Nations communities in northern Manitoba.
Cite as: Judd, Ellen R. 2017. “An Anthropologist Looks for Justice in Guantanamo Bay.” Anthropology News website, September 7, 2017. doi: 10.1111/AN.598