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American Today



Law Student Observes Legal Proceedings in Guantanamo

By Mike Unger

Photo: Washington College of Law student Michael McNerney was sent by the National Institute of Military Justice to observe legal proceedings at Guantanamo Bay.

Washington College of Law student Michael McNerney was sent by the National Institute of Military Justice to observe legal proceedings at Guantanamo Bay. (Photo courtesy of Michael McNerney)

The issue of U.S. military commissions in Guantanamo Bay continues to be a lightening rod of controversy around the world. Everyone seems to have an opinion – but few people are more uniquely situated to take an objective look than Michael McNerney.

A third-year student at the Washington College of Law, McNerney witnessed a proceeding firsthand in January, observing from the courtroom as five 9/11 co-conspirators and their lawyers participated in a pretrial hearing.

McNerney, who joined the Air Force after 9/11 and decided to go to American University’s law school after his discharge, went to Cuba as an observer for the National Institute of Military Justice, where he works as a fellow. The nonprofit organization is affiliated with WCL.

“I went down there with competing emotions,” he said. “I joined [the Air Force] because I was very personally affected by 9/11. I was still quite angry. Sitting in the courtroom with those guys was a hard thing. On the other hand, I’m a law student trying to have a respect for the rule of law. I think those competing things helped me be objective.”

The U.S. Department of Defense allows nonprofits and interest groups to send observers to the military commissions, and the NIMJ tapped McNerney because of his military background and legal scholarship. He watched five days of proceedings, and came away from the experience with a multitude of conclusions.

“Everyone there had an agenda,” he said. “As a law student, I felt they sacrificed a great deal of structure. An appreciation for legal structure is something we take for granted. They were arguing very confusing points of law, and the judge has no precedent to guide him. They argued on every piece of minutia, even things that sounded very minor. That’s one thing that’s taking so long. They’re not even at the point where they can say ‘guilty’ or ‘not guilty’ yet.”

When McNerney returned to Washington in late January, he wrote about his experience in the legal journal Jurist. In the piece, he explained why alleged abuse of prisoners at Guantanamo still plays a role today in the legal process there.

“Allegations of torture have also harmed our position in the world as a just and humane society,” he wrote. “When we lose our moral authority, we lose our ability to prevent atrocities in the rest of the world, which makes us less secure as a nation.

“The Guantanamo detainees can see these deficiencies and exploit them. They abuse the translators and make endless requests for irrelevant paperwork. They follow current events and know precisely what to say to get their message into the media. They also refuse to cooperate with their lawyers and know exactly how far to push the judge. This stands in stark contrast to the parallel habeas corpus proceedings underway in federal court, where some have been very cooperative.”

Overall, McNerney concluded that there must be a better way of dealing with these people, the very terrorists whose actions’ enraged him so much that he joined the military to help defeat them.

“The end result is often sad political theater rather than a legitimate legal process. Many of the arguments and decisions rendered under the military tribunals appear geared toward trying cases in the court of public opinion rather than in a court of law. Lawyers on both sides become frustrated and those frustrations can turn into animosity for opposing counsel. Humanitarians who observe the detainees and the military personnel who guard them treat each other with uneasy suspicion because neither group trusts the political agenda of the other.

“The system of justice I witnessed at Guantanamo really doesn't work. It also needlessly divides the American people. While I hate to see these proceedings delayed yet again, the Obama Administration needs to re-think the current faulty process and come up with a system that makes sense. This new system must better balance all four competing imperatives and carefully consider public opinion. Additionally, the polarized advocates on both sides need to drop their most unrealistic demands and reach practical compromise. If not, the American people may have to wait another eight years for justice.”