Twenty-eight black pine trees stand on the banks of the Elizabeth River at Norfolk Naval Station in Virginia. They commemorate the 17 sailors who lost their lives in the suicide bombing of the USS Cole in Yemen on Oct. 12, 2000, and the 11 children they left behind. The pine trees are older now than many of the Cole children were when their parents were taken from them. Yet they, and others who lost their loved ones on the Cole, still await justice.
Earlier this year, I attended military commission pretrial hearings at the Guantanamo Bay naval base for Abd al-Rahim al-Nashiri, the al-Qaeda alleged mastermind of the Cole bombing. Eight Americans whose lives were irrevocably altered by the attack were also there. At a news briefing following the hearings, each was offered an opportunity to speak. One sailor recounted zipping shipmates into body bags. Another spoke of the fear that still haunts him. His wife described sitting with their 15-year-old son, waiting to hear whether her husband was alive or dead. And a father and mother recalled the 10 days it took to find their son's body.
Damning shortcomings
The slow pace of the judicial process at Guantanamo frustrates many victims. They blame defense counsel for filing numerous motions related to al-Nashiri's rights and treatment in secret CIA custody that the commission, dealing with its first death penalty case, has taken months to resolve.
Listening to the families' stories, I couldn't help but think that they deserve far better than the second-class justice system in which al-Nashiri is being tried. The magnitude of the crime and its lasting impact on their lives isn't reflected by the ad hoc nature of the commission system.
From the prefabricated courthouse on a decommissioned airfield to the flimsy briefing room where windows look out onto the inside of an old hangar, nothing at Guantanamo gives the impression that the proceedings are of historic importance or that their results will withstand the critical eye of history.
Most damning are the fundamental due process problems that have hampered the military commission's progress since the first charges were filed in 2004. These shortcomings range from the commission's lack of independence to its admission of coerced testimony.
Some of these flaws were on display last month during pretrial hearings for the accused 9/11 co-conspirators. During what should have been a routine proceeding, the judge discovered that some unknown entity was able to cut the audio feed from the courtroom to the news media. Later, instead of dealing with scheduled motions, already delayed for months, he was forced to address microphones discovered hidden inside smoke detectors in rooms where defense lawyers had confidential meetings with their clients.
A better way
It did not have to be this way. In its 12-year existence, the military commission has secured only seven convictions through either trial or plea bargain, two of them overturned by higher courts.
Meanwhile, federal courts have prosecuted more than 400 terrorism cases. Yet, in the face of congressional pressure, the Obama administration continues to use commissions that neither better protect national security nor more expediently provide justice to terrorism victims.
In the aftermath of the Cole attack, John and Gloria Clodfelter waited days until their son's death was confirmed. Thirteen years later, they are still waiting for justice.
Adam Lewis is the counterterrorism associate at Human Rights Watch. Follow @AdamFLewis.
