REPORT ON MY WEEK AT GUANTANAáMO AS AN NGO REP
May 30 – June 3, 2016
“I got it.”
That is the oft-repeated signature phrase uttered by Army Col. James L. Pohl, Chief Judge of the Military Commissions at Guantanamo, usually confirming he understands a motion’s clarification. Appointed in 2008 by the then-Convening Authority, Susan Crawford (a Richard Cheney protégé), his charge includes selecting judges for the Commission trials, which include those accused of the 9/11 attacks, and, that of Abd al-Rahim al-Nashiri, accused of the attack on the USS Cole. Col. Pohl, an Army judge since 2000 (he was a judge at Abu Ghraib), and now past retirement, appointed himself to judge the 9/11 trial, and has been re-appointed yearly by “the Army” (see http://www.mc.mil/Portals/0/pdfs/alNashiri2/Al%20Nashiri%20II%20(AE084E)_Part1.pdf )
The molasses pace of the 9/11 joint capital trial of Khalid Sheik Mohammad (KSM), Walid bin Attash, Ramzi bin al-Shibh, Ali al Baluchi and Mustafa al Hawsawi has often been criticized for dragging on interminably. Intense legal wrangling preoccupies many involved in the field of law, in and out of government, on how to move this to a just and satisfactory conclusion. A Georgetown law student who witnessed the proceedings last November characterized the legal morass this way:
“The most recent incarnation of the legal system undergirding the commissions dates to [the Military Commissions Act of] 2009, which means, as one lawyer there put it, that they are “laying the tracks in front of the train.” Precedent comes by sometimes-crude analogy to the Uniform Code of Military Justice, the Federal Rules of Evidence, international law, and ad hoc arguments about how to handle every new issue for the first time. Appeals are common and their resolutions, as discussed, are not always swiftly forthcoming. “
James Connell, Learned Counsel (experienced death penalty attorney) for Mr. Al Baluchi, KSM’s nephew, commented on the interminable pre-trial motions that have pushed the trial farther into the future for the past five years,
“You have an obligation to challenge whatever can be challenged [in a capital case], but the difference in the military commissions is that so many more things are challenged because nothing has ever been decided. It’s not even decided what circuit we operate under. Under the 2009 Military Commissions Act, the case would eventually go to the D.C. Circuit, but it’s not decided whether the circuit’s law is binding on the military commissions or if it’s just persuasive. It’s never been decided whether the Constitution applies at Guantanamo. When we filed a motion to decide whether the Constitution applied, the judge said that the issue will be taken on a case-by-case basis….
“But all that being said, that’s not the reason why there have been so many cancelled hearings and delays…. , the reason why there have been so many cancelled hearings is that the government cannot get out of its own way in this prosecution. It’s constantly intruding into the defense function in a way that is disturbing to the military judge and requires investigation and redress. Bugging the defense meeting rooms, FBI investigations into the defense teams, the fact that a former CIA interpreter showed up as a linguist on one of the defense teams, seizure of DVDs documenting the investigation – the list goes on and on. Most of the problems in the military commissions are not legal challenges because legal challenges are what judges handle. The real problems are the government intrusions into the functioning of the legal system, including the defense function.” (http://www.lawdragon.com/2016/01/28/lawyer-limelight-guantanamo-james-connell/)
I was fortunate to have seen the intrusion of an “OCA” (OMC-speak for Original Classification Authority) in 2013 on CCTV. The finger clearly pointed at the CIA. KSM lead defense lawyer Nevin had begun to mention black sites when the video went dark…and when it was restored, Judge Pohl was hopping mad, saying he and his security officer were the only ones who could cut the feed. This was close to the time that listening devices were found in the smoke detectors in the private huts reserved for client-defense attorney private meetings. I recall the CCTV court appearance of Col. John Bogdan, the commander of the Joint Detention Group at GTMO at that point, who testified he had not known that devices made to look like smoke detectors were actually listening devices. He had the devices repaired, for “completeness” he said, not to eavesdrop. I vividly recall through much of his testimony he sported a sarcastic grin. See https://en.wikipedia.org/wiki/John_Bogdan
Three years ago, defense attorneys said it might take as long as three years to get to trial – that’s now. In an informal conversation last month with law-savvy NGOs at Guantanamo, a defense attorney laid out three separate types of motions that are so difficult they are being constantly delayed or postponed. One category is so tough it may never come to formal consideration, he says. And the new time assessment until trial? At least five years, and perhaps as much as ten.
So many signs point to indefinite hearings, it is difficult to avoid the impression that the prosecution is stalling, hoping to never come to trial. Legal discovery for the defense takes years in many cases. Some detainees have been imprisoned for up to 14 years at this point, most without being charged. And now the oldest prisoner is 68. The authorities have employed geriatric medical advisors and are planning to enlarge prison cell access to accommodate wheel chairs. [A new report says the Navy base has contracted for $250 million of new construction in 2017, but this does not include the area comprising the detention center and court complex, Camp Justice, which has a separate budget under the control of the Joint Task Force (JTF). http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article88082117.html . This is despite the revived good relations between the US and Cuba, which wants the base returned to them.]
Meanwhile, the prosecution is accusing the defense of stalling. In what was described in the media as a “school-house brawl” over the secret destruction of exculpatory evidence for KSM and the defense’s allegation that the prosecution was collusive with the judge in hiding the destruction. Gen. Martin’s team said the defense legal teams “will apparently stop at nothing in their attempts to convince whoever may still be following their shrill antics that justice is simply not attainable at Guantanamo Bay before a military commission. Their goal is not acquittal in this case; their goal, and their entire defense strategy, is that the case is never, never ever be tried.”
It is a difficult, seemingly insoluble, legal hostage situation at Guantanamo Bay. Among the hostages are the family members of those killed in the 9/11 attacks and the American reputation for justice. All are locked in a vortex initially spun by the US government when they created the current Military Commission trials at Guantanamo. Carol Rosenberg, GTMO’s indefatigable chronicler, refers to the situation as the first no-exit-strategy, U.S. military enterprise since the Vietnam War. Molly Crabapple of Vice magazine, commenting on the fact that there is a $10,000 fine for killing an iguana in Guantanamo, says, “The JTF and the detainees are enemies together, trapped on a horseshoe-shaped piece of Cuba. In Gitmo, only the animals are free.” Published on VICE (This 3-year-old article, had good sketches and accurate impressions of a visit to the base, and was the added attraction of a sketch of PT member Rita Lasar. The article has since been removed.)
Judge Pohl rarely rules immediately on a motion. The efforts to amalgamate the UCMJ, federal and international law and unique situations have stymied the best legal minds. Suggestions abound for resolution, most prominently that of moving the trials to federal courts, which PT has backed since its inception. Here’s a position paper (from a fellow NGO’s organization) that proposes moving federal judges to Guantanamo – an alternative deemed not workable by many including the former JAG and NGO rep who has been to the hearings eleven times, (and who, incidentally, edited the paper). https://www.pacificcouncil.org/sites/default/files/related_resources_files/Up%20to%20Speed%20-%20GTMO%20Task%20Force%20report%20-%20Feb%202016_0.pdf
As the first NGO observer to represent Peaceful Tomorrows at GTMO, I was the only one of the ten NGOs attending in June 2016 who was not a lawyer or law student. (There were to be eleven observers, but one dropped out at the last moment when he learned of the suspected toxic contaminants on the old McCalla Airfield, the site of Camp Justice where the court, journalists and NGO observers reside… lawyers are housed a couple of miles away on the Navy base.) NGOs were present from the ABA, NY Bar, Human Rights First, National Institute for Military Justice, Indiana School of Law, Judicial Watch, Seton Hall, Pacific Council on International Policy, Georgetown Law Center, and the Graduate Institute of Geneva (Switzerland)….all lawyers or law students. Understandably then, a great deal of the conversation among us centered on the legal aspects of the case, heightening my perception of a GTMO Stockholm Syndrome… the reality of the status quo of the Commissions with minor internal quibbles over legal procedure.
Courtroom: The hearings are viewed from a gallery in the rear of the courtroom, behind three levels of glass window, with TV cameras broadcasting the courtroom on a 40-second delay. Judge Pohl and a security officer control the feed and cut it off if a classified matter is mentioned. Victim family members sit near the door and NGO’s and journalists sit farther in (8 journalists are allowed in the courtroom at once – the rest view the proceedings from the journalists’ lounge, located in the former dirigible hangar near the residential tents). Also in the gallery are OMC staff, JTF members (when there is available space) and defense lawyers who find the courtroom too cold.
The judge presides at the opposite end from the gallery, long tables face him with defendants to the far left and their legal teams to the right of them, and prosecution at tables to the right of that. At the far right are the empty chairs that may someday be filled with a military jury. Breaks are taken so the defendants may lay out their prayer rugs and pray at the appropriate times, which I witnessed once (In Islam, prayers are spaced through the day five times.). A cordon of JTF personnel line the left hand wall, and three per defendant usher the accused in. Defendants are not chained to the floor as previously required.
Attendance: Three full and two half days of hearings, two half-days closed hearings (classified). All defendants present for the first day as required by Judge Pohl, but all did not appear regularly during the week. Chief Prosecutor Army Brig. Gen. Mark Martins was not in Guantanamo Bay this week as he was part of the government team giving oral arguments in an appellate hearing before the commission system’s Washington, D.C.-based review court, the U.S. Court of Military Commission Review (CMCR), in the case against Abd al Rahim al Nashiri accused of bombing the USS Cole in 2000.
Motions heard: These are the motions taken up at what Judge Pohl called a very productive week’s hearings (acknowledged by experienced viewers as an accurate representation), May 30 – June 3, 2016.
An important concern is the destruction of evidence by the prosecution. It took 18 months for KSM’s defense to learn that the judge had allowed key evidence – exculpatory to the defendant (apparently relating to black sites and torture by the CIA)– to be destroyed by the prosecution. The defense has accused the prosecution and judge of colluding and moved for Judge Pohl’s and lead Prosecutor Martin’s removal, and termination of the trial of KSM. The prosecution says the defense has only itself to blame as they are not sufficiently savvy legally. They do not deny the destruction, and offer redacted summaries of the material vaporized, deemed inadequate by KSM’s team. The prosecution claims that a miscommunication caused the notification omission.
The government says it needs until September 2016 to gather discovery it will willingly turn over, but the question remains, says defense attorney James Connell, “What discovery does the government have to produce regarding CIA abuse and torture of the defendants? We know that the Senate Select Committee on Intelligence had access to over six million pages of classified documents, but the government so far has produced less than a hundred pages of classified documents relating to the CIA torture program.”
A motion was heard regarding defendant bin al Shibh’s claim that he is being hounded in his cell with noises and vibrations, day and night, a continuation of the torture he experienced CIA black sites. Previously, Judge Pohl had ordered the guard force to stop such harassment. In his appearance in February, Mr. Bin al Shibh said some guards indicated to him they did not care about the order.
The first witness to support his claim was Guleed Hassan Dourad from Somalia (also known as Hassan Guleed and other names). He corroborated the account of incessant noises and sleep disturbances, but was vociferously attacked by the usually mild-mannered Prosecutor Ed Ryan, stabbing at his veracity and trying to force the witness to self-incriminate. At one point, the witness began describing what happened at the black sites, and the video and sound were cut. I was as impressed by the force of Ryan’s attack as I was with the witness’s composure, command of English (learned at GTMO) and subtle sense of humor – someone who has not been in public since his capture in 2006.
The appearance of Abu Zubaydah as a witness for Mr. Bin al Shibh was highly anticipated. Captured in 2002, he was the first high value detainee, and was reportedly subjected to extreme tortures not repeated on others, and then he disappeared. Held in black sites for four years, he reappeared minus one eye. http://www.newyorker.com/news/news-desk/how-did-abu-zubaydah-lose-his-eye He has not been seen in public nor been out of his cell without shackles since his capture, until this hearing. But the public appearance was not to be. While he waited outside the courtroom, his Military Counsel, Patrick Flor, requested that the judge give Zubaydah Constitutional protection from self-incrimination. Judge Pohl declined, saying it wasn’t in his power, but perhaps the Convening Authority could. A motion to that effect is expected.
Worthy of note, and relating to the harsh attack on witness Durand, in an informal meeting held by defense Learned Counsel Ruiz and his team with the NGO’s, Ruiz said the antipathy between the prosecution and defense in this case is of a caliber not seen by him before…and he is an experienced capital trial lawyer.
The motion was heard to depose 9/11 family members, all over 65, who are aging or ill to insure their testimony is available. (NB: Three of the defense attorneys are over 65.) The government wants to hear the depositions in open court this fall at Camp Justice. Attorneys for the defense pointed out that it would make it difficult to empanel an impartial jury. Prosecutor Ed Ryan agreed that might be difficult but said the public exposure through books, films and the media already did to that. Defense (Bormann and Nevin) said the usual mode is witnesses who can’t appear have testimony taken in hospitals or close to where they are, and defense will in any event have to take their own depositions. Harrington didn’t object to GTMO depositions, but insisted on closed session with the accused present, making the point that the timing requested seemed curious – weeks before the presidential elections.
Other motions covered the defense’s bid to have the United Nations Special Rapporteur to be allowed into Camp 7, motions requiring the government to allow KSM’s letter to President Obama to be sent, Walid Bin Attash’s request to dismiss two of his lawyers, a defense request for phone lines between their stateside offices and their GTMO clients, the right for prisoners to communicate and have visits with their families as mandated by the ICRC and international law, and the request for an independent expert to be employed to determine if there are any toxic, cancerous materials in the ground at Camp Justice. (The Navy said last summer there was formaldehyde and other chemicals, but earlier this year said there was no danger, but had not tested.) ___________________
NB: According to Human Rights First, the documented cost of running the Guantanamo prison facility in 2015 was $445 million. The actual amount is far more, since this amount does not include the cost of Camp 7, where “high-value detainees” are held. That cost has been deemed classified. The $445 million sum also fails to include the cost of Justice Department, FBI, and CIA involvement in detention operations. With 79 prisoners currently held, the nominal cost per prisoner is $5.6 million. At a federal Supermax prison, the highest-security and strictest federal prisons, the cost is $78,000 per year. The Obama plan to bring detainees to the mainland would save a minimum of $65-85 million per year.
Recommended resource for new NGO’s at GTMO:
Indiana U McKinney School of Law: (Draft) Guantanamo Bay Fair Trial Manual, https://gitmoobserver.com/military-commission-observers-manual/ — this includes info for NGOs. I have a book of excerpts that is not available online, but a print copy can be picked up at GTMO in the NGO lounge.