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BushCo's Guantanamo Recordkeeping: Literally Kafkaesque

By blueness

"I fear your case will end badly. You are held to be guilty. Your case will perhaps never get beyond a lower Court. Your guilt is supposed, for the present, at least, to be proved."
                                                                                     --Franz Kafka, The Trial

Reading the report in Sunday's Washington Post about the sloppy, negligent, even contemptuous record-keeping in the BushCo White House involving the cases of those interned in Guantanamo, I was struck by the feeling I had encountered such surreal legal dishevelment somewhere before. A quick trip to my library, I discovered I was right. The Post article bore an eerie resemblance to passages from Franz Kafka's The Trial.

Below the fold, find juxtaposed excerpts from Kafka's work with the reality of what officials in the Obama administration have found as they attempt to arrive at a reasoned determination of how to resolve the cases of those people BushCo imprisoned in his War on Terra.  

As you consider the Post report, and your mind gyres out to encompass all the other "legal" abuses that have for the past too-many years occupied this and other human-rights blogs, I think you'll see what's clear to me: the people in BushCo did not regard The Trial as a warning, a plea, a proscription, even dark farce. They used it as a fucking blueprint.
While incoming administration officials have traditionally been briefed on classified matters well before assuming office, we learn from the Post report that members of the Obama team were "barred until the inauguration from examining classified material on the detainees." Once in office--just last Tuesday--they discovered "there were no comprehensive files on many of them."

Instead, they found that information on individual prisoners is "scattered throughout the executive branch," a senior administration official said.

Several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner. They said that the CIA and other intelligence agencies were reluctant to share information, and that the Bush administration's focus on detention and interrogation made preparation of viable prosecutions a far lower priority.

Or, as Kafka put it:

"[T]he proceedings were not public; they could certainly, if the Court considered it necessary, become public, but the Law did not prescribe that they must be made public. Naturally, therefore, the legal records of the case, and above all the actual charge-sheets, were inaccessible to the accused and his counsel, consequently one did not know in general, or at least did not know with any precision, what charges to meet in the first plea[.] One could draw up genuinely effective and convincing pleas only later on, when the separate charges and the evidence on which they were based emerged more definitely or could be guessed at from the interrogations.

[T]he proceedings were not only kept secret from the general public, but from the accused as well. Of course only so far as this was possible, but it had proved possible to a very great extent. For even the accused had no access to the Court records, and to guess from the course of an interrogation what documents the Court had up its sleeve was difficult[.]

In the world according to Kafka:

[I]t sometimes happened that the first pleas were not read by the Court at all. They simply filed them among the other papers and pointed out that for the time being the observation and interrogation of the accused were more important than any formal petition. If the petitioner pressed them, they generally added that before the verdict was pronounced all the material accumulated, including, of course, every document relating to the case, the first pleas as well, would be carefully examined. But unluckily even that was not quite true in most cases, the first plea was often mislaid or lost altogether and, even if it were kept intact till the end, was hardly ever read[.]

In the world according to BushCo:

In a court filing this month, Darrel Vandeveld, a former military prosecutor at Guantanamo who asked to be relieved of his duties, said evidence was "strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks."

He said he once accidentally found "crucial physical evidence" that "had been tossed in a locker located at Guantanamo and promptly forgotten."

According to the Post report:

Charles D. "Cully" Stimson, who served as deputy assistant defense secretary for detainee affairs in 2006-2007, said he had persistent problems in attempts to assemble all information on individual cases. Threats to recommend the release or transfer of a detainee were often required, he said, to persuade the CIA to "cough up a sentence or two."

A second former Pentagon official said most individual files are heavily summarized dossiers that do not contain the kind of background and investigative work that would be put together by a federal prosecution team. He described "regular food fights" among different parts of the government over information-sharing on the detainees.

According to Kafka:

The ranks of officials in this judiciary system mounted endlessly, so that not even the initiaties could survey the hierarchy as a whole. And the proceedings of the Courts were generally kept secret from subordinate officials, consequently they could hardly ever quite follow in their further progress the cases on which they had worked; any particular case thus appeared in their circle of jurisdiction often without their knowing whence it came, and passed from it they knew not whither. Thus the knowledge derived from a study of the various single stages of the case, the final verdict and the reasons for that verdict lay beyond the reach of these officials. They were forced to restrict themselves to that stage of the case which was specified for them by the Law[.]

In Kafka, the terminus of cases, in the Courts, before the Law, was this:

[I]t did sometimes happen that the case took a turn where the lawyer could no longer follow it. The case and the accused and everything were simply withdrawn from the lawyer; then even the best connections with officials could no longer achieve any result, for even they knew nothing. The case had simply reached the stage where further assistance was ruled out, it was being conducted in remote, inaccessible Courts, where even the accused was beyond the reach of a lawyer. Then you might come home some day and find on your table all the countless pleas relating to the case, which you had drawn up with such pains and such high hopes; they had been returned to you because in the new stage of the trial they were not admitted as relevant; they were mere waste paper. It did not follow that the case was lost, by no means, atr least there was no decisive evidence for such an assumption; you simply knew nothing more about the case and would never know anything more about it.

BushCo missed this nirvana by a single solitary US Supreme Court vote. Smug as Kafka's Court officials, the folks of BushCo never thought they'd be required to produce. Now so required, they have had to admit:

that evidence and other materials on the Guantanamo prisoners were in disarray, even though most of the detainees have been held for years.

Justice Department lawyers responding in federal courts to defense challenges over the past six months have said repeatedly that the government was overwhelmed by the sudden need to assemble material after Supreme Court rulings giving detainees habeas corpus and other rights.

In one federal filing, the Justice Department said that "the record . . . is not simply a collection of papers sitting in a box at the Defense Department. It is a massive undertaking just to produce the record in this one case." In another filing, the department said that "defending these cases requires an intense, inter-agency coordination of efforts. None of the relevant agencies, however, was prepared to handle this volume of habeas cases on an expedited basis."

Evidence gathered for military commission trials is in disarray, according to some former officials, who said military lawyers lacked the trial experience to prosecute complex international terrorism cases.

In The Trial, Joseph K--pursued, persecuted, confused, accused, tortured, ultimately rubbed out--was never actually afforded a trial. In BushCo, by a single Supreme Court justice, trials became not only necessary, but mandatory. And what Sunday's Post report reveals, is that BushCo, in the interrogation and internment and abuse of these men, never prepared for a trial, any trial--because, like the Court, like the Law, in Kafka's The Trial, it expected to remain sufficiently all-powerful so that no trial, any trial, would ever be required of it: ex necessitate rei.

You lose, George II. Defeated, in the unlikely personages of first Sandra Day O'Connor and then Anthony Kennedy, by another Latin phrasing: Fata viam invenient.

Full post as published by Never In Our Names on January 30, 2009 (boomark / email).