You Can't Make This Shit Up! Leading the Fight for the Rule of Law in the Guantanamo Bay Military Commissions

I was an active duty Army JAG for 20 years. When I retired in 2006, I was approached to work as Principal Deputy Chief Defense Counsel for the Military Commissions Defense Organization (MCDO): the team defending people held at Guantánamo Bay in the Bush administration’s “war on terror”. In many senses, the military commissions, created in the aftermath of 9/11, were the antithesis of good national and international law, originally designed to allow the use of evidence obtained from torture to prosecute and convict “detainees”. At MCDO, truth was (and is) stranger than fiction*.* We would often invoke the mantra “You can’t make this shit up!” There is another meaning to this phrase: when the Bush administration decided to create (“make up”) the GTMO military commissions and not to use established systems of justice, they were asking for trouble. It is impossible to create a new system of “justice” on the fly, particularly one created to hide illegal practices. Innumerable problems and obstacles were bound to occur. This insider account of the work of MCDO through the Hicks, Hamdan, Khadr, al Bahlul, and Jawad trials, among others, and the al Nashiri and “9/11” death penalty cases, offers unique insights into the often dark world MCDO attorneys were forced to navigate—including being investigated by the FBI for alleged misuse of classified materials. There was so much at stake: nothing less than the rule of law. Fortunately, there was also room for dark humor: you really can’t make this shit up!