Military Justice: Secrecy Shrouds Guantanamo Hearings

by Mathieu von Rohr in Guantanamo

The biggest terrorism trial in American history has yet to begin, but many are already questioning whether it can approach fairness. Aggressive surveillance tactics, an ongoing detainee hunger strike and questions about the future of the camp are overshadowing ongoing pre-trial hearings.

Ramzi Binalshibh is singing. It is Monday of last week, and Binalshibh, one of the men charged with the murder of 2,973 people on Sept. 11, 2001, is standing in Courtroom No. 2, a neon-lit room with no windows to the outside world, at the US military base in Guantanamo, Cuba. He places both hands on his head and begins to pray.

Binalshibh, 41, has a long beard and drooping eyelids, and he is wearing a camouflage vest over his white robe. His singing is barely audible in the visitors’ gallery, on the other side of sound-proof glass panels. Guards quickly escort the visitors out of the room to prevent them from witnessing this praying jihadist, a scene that is both oddly appealing and unsettling.

He is one of five men who are to be tried in this military tribunal for their participation in the 9/11 attacks. He lived with Mohammed Atta in Hamburg for two years and was supposed to be on one of the planes used in the assault, but he was denied a visa to the United States.

The most famous defendant is Khalid Sheikh Mohammed (often referred to merely as KSM), the alleged mastermind of the attacks. The star of this trial, he is sitting in the front row in the courtroom, an elfish little man wearing a white turban and an army jacket. Nothing about him is reminiscent of the portly man the public has seen in photos. The CIA subjected him to waterboarding 183 times. A person changes after facing the fear of death that many times. But his beard is still red. Instead of henna, he now dies it with fruits and juices, say the soldiers.

The room looks like a typical American courtroom, with imitation mahogany furniture and a judge wearing a black robe. It is, however, a “military commission” — a tribunal constructed, as if it were part of a film set, in a hangar-like building surrounded by guard towers and barbed wire, on the edge of a former airfield on a small piece of Cuba.

Threats to National Security

The other defendants, in their Islamic robes, also seem otherworldly: Walid Bin Attash, the one-legged Yemeni who allegedly planned the attack on the USS Cole, covers his head with his robe every day. Ammar al-Baluchi and Mustafa al-Hawsawi, who allegedly arranged the funding for the attacks, whisper to each other or are immersed in their attorneys’ written pleadings, which they are now reading for the first time.

Only a handful of viewers are allowed, including relatives of victims of the attacks, representatives of non-governmental organizations and journalists. They can see into the courtroom through windows, but the audio feed is delivered with a 40-second delay. The judge has a button he can press to stop the transmission if he believes that any of the testimony threatens national security. And there are plenty of secrets in the case of United States v. Khalid Sheikh Mohammed et al.

A few days in the visitors’ gallery offers a glimpse into the paranoid world of Guantanamo, that parallel America in the Caribbean. It feels almost like any suburb, with a McDonald’s and a Walmart-like store, and yet it is governed by the military and intelligence agencies. It is an area that was created out of the fear that gripped America after 9/11, a fear that remains palpable in Guantanamo.

President Barack Obama’s first executive order after taking office was to close the US detention center in Guantanamo. But the US Congress blocked all prisoner transfers, and nothing happened. No other broken promise has disappointed Obama’s supporters as much as that one. A few weeks ago, the president announced once again that he intended to shut down the camp, and he appointed prominent Washington attorney Clifford Sloan to lead the closure effort. But it seems doubtful that he will succeed this time around, given that Republicans and Democrats can’t seem to agree on much of anything these days.

‘Preservation of Existence’

In fact, Guantanamo is growing at the moment, at least as far as personnel is concerned. Currently, 104 of the 166 detainees are on a hunger strike, with some having abstained from eating for weeks. Forty are being force-fed. Additional guards and medical personnel were needed as a result, and there are currently 1,950 people now working for Joint Task Force Guantanamo.

The American Medical Association opposes the practice of force-feeding, calling it inhumane, while Democratic Senator Dianne Feinstein has said that those who want to die should be allowed to die. “The reality is that it’s not the preservation of a life,” says Commander Walter Ruiz, a young, combative military attorney who represents Hawsawi. “It’s the preservation of existence. By keeping these people here we have already killed their soul and their spirit, and taken away their dignity.”

The official motto of the camp reads: “Safe, humane, legal and transparent.” But the curse of Guantanamo cannot be removed with an appealing motto.

To understand the history of the place, it’s worth driving from the courtroom to Camp X-Ray, almost at the Cuban border. It looks like a concentration camp, with its guard towers and barbed-wire fences, but the US military stresses that the detainees were all given sleeping mats, toothbrushes and Korans. The cages where the prisoners were kept, now covered in vines, can still be seen inside the camp.

It was there that the United States began, in 2002, to lock up suspected terrorists from Afghanistan and Pakistan. The symbol of a sinister America took shape at Camp X-Ray, where the detainees, wearing orange jumpsuits, were kept locked up inside chain-link and barbed-wire enclosures. A soldier with the press unit says: “Camp X-Ray is an important part of our history. It shows where we come from and how much we have improved since then.”

The 166 remaining detainees, of an original total of about 800, are kept in four tracts. Camps 5 and 6 are the “most attractive and best-smelling” prisons he has ever seen, says a spokesman. It’s even possible to visit them, but not Camp 7, which was built for the 14 so-called high-value detainees. It is a secret camp, and not even its location is officially known. The defendants are driven in white vans from Camp 7 to the courtroom every day.

Prone to Arbitrariness

Some 86 detainees who are apparently innocent could have been freed long ago. But the US Congress has blocked their release, arguing that they could return to their native countries and plan future terrorist attacks. Another 46 men are to be detained “indefinitely.” They are considered dangerous, but the military lacks sufficient evidence to put them on trial. Only six detainees have been charged with crimes. And it is likely, says the chief prosecutor, General Mark Martins, that many of the remaining 34 detainees will never stand trial.

To date, there have only been pre-trial hearings in the case against the presumed 9/11 co-conspirators. They began a year ago, and the court has been in session just five times since then. It will be quite some time before the actual trial begins. And even then, it is unclear whether the men, who inflicted the greatest trauma on America in recent history, will receive a fair trial. After all, how transparent and democratic is a case that only selected visitors can witness, surrounded by soldiers?

The system is prone to arbitrariness, as three examples from last week illustrate. First, a court sketch artist was deprived of her magnifying glass, which she had been using for years and which helped her recognize faces. Then, a diagram this journalist was drawing in his notebook outlining the locations of people sitting in the courtroom was confiscated temporarily. Finally, two attorneys of one of the defendants were briefly detained as they attempted to visit a movie theater. These are experiences from a world controlled by the military.

“The military commission system is not a fair system. It is designed to keep evidence secret,” says attorney David Nevin, who represents Khalid Sheikh Mohammed. The consideration of mitigating circumstances, such as the fact that the CIA abducted and tortured the defendants, is necessary to prevent the imposition of the death penalty. But these torture programs are classified as secret, and they can only be discussed in a court session closed to both the public and the defendants. The attorneys are not even permitted to discuss with their clients the statements they made while being tortured. And the reports on those sessions are also secret.

Impossibe to Communicate Freely

“I believe that the goal here is to get a conviction and a death sentence,” says Nevin. “And, on the other hand, to protect information about the people who tortured Mr. Mohammed from coming out.” But that is precisely what he wants to talk about: The fact that his government intentionally tortured people. In Nevin’s opinion, President Obama would also be comfortable with the death penalty for the defendants to further prove that he is tough on terrorism. “Voters care about this,” says Nevin. “I think he would like very much to say: I executed Khalid Sheikh Mohammed and I executed Walid bin Attash and so on.”

For the attorneys, it is almost impossible to communicate freely with their clients in Guantanamo. Telephone conversations are monitored, and legal pleadings have been searched through in the defendants’ cells. For this reason, the attorneys visit their clients in person to discuss confidential information. But they have sometimes not been allowed to bring in notes, and surveillance equipment was also recently found in the booths where they meet. Moreover, it emerged that live transmissions of the hearings can be censored without the knowledge of the presiding judge. During a discussion in January, for example, an alarm suddenly went off, and the sound in the visitors’ gallery was shut off by an intelligence agency. Even the judge was outraged.

And last week, cross-examinations involving members of the military commissions and the detention center showed that the CIA played an indirect role in writing many of the rules that limit the ability of attorneys to communicate with their clients. One rule, for example, bars attorneys from sending their clients material discussing jihadism — even as their clients are being charged with jihadism.

The prosecution did not seem happy with these revelations and kept mentioning national security. When Hawsawi attorney Ruiz criticized the CIA’s intervention, the prosecution tried to prevent him from speaking by raising objections. “I’m not sure why any time I mention the CIA it is a sustained objection,” Ruiz complained to the judge. “You’re playing with fire,” one of the prosecutors replied.

The hearings are agonizing. They revolve around the formal procedures of this specially created tribunal, not the actions of the defendants. The trial should be held in a federal court in the United States, says attorney Nevin, where there is over 200 years of experience. “In the military commissions,” he says, “we are starting from scratch and we create a system where few cases have ever been decided and which is very much prone to error.” But Attorney General Eric Holder’s plan to try the five men in a court in New York failed in early 2011, in the face of a public outcry.

‘Very Disappointed’

Even if Clifford Sloan managed to close Guantanamo, the trial of Khalid Sheikh Mohammed would probably be held in the same court on another US military base on the mainland. One attorney even says that the many procedural errors could result in a mistrial and the continued detention of the defendants.

The relatives of 9/11 victims, who were chosen by lottery to attend the trial, are also divided. One of them is Linda Gay, 54, whose husband, Peter, was in one of the planes that crashed into the World Trade Center. She has brought along a photo of him, which she holds out to the defendants from the gallery. She says that she is furious and wants to know why American lawyers are defending these kinds of people. “Why are we paying for their attorneys? They’re not even US citizens!” She feels that the defendants’ rights should not be of such paramount concern.

Rita Lasar, 81, is sitting next to her, listening carefully to every word. She lost her brother, who worked in one of the towers. “He was a great admirer of our Constitution,” she says. “And I believe that these people, whoever they are, deserve the fairest and most transparent trial possible.”

She says that for her, 9/11 was a crime, not an act of war. “I’m very disappointed that President Obama hasn’t closed this surreal place long ago,” she says.

Translated from the German by Christopher Sultan

Filed in: Advocacy, Guantanamo & Military Commissions, News from Peaceful Tomorrows, Restoring Rule of Law, Rita Lasar, Rule of Law: Guantanamo and Civil Liberties

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