By Nancy Meyer
As promised, here’s a description of Day 4 of the 4 days of court proceedings I witnessed at Gitmo. It is my recollection of the Friday, November 1, 2019 pretrial hearings of the five 9/11 accused.
Upon entering the gallery that morning we immediately noticed a significant difference in the courtroom: no guards along the left wall where there had previously been at least half a dozen, and none of the women wore hijabs and long skirts. This is how we knew there would be no detainees in the courtroom that day.
The reason for their absence was that all detainees had declined the opportunity to encounter and hear the testimony of that day’s witness, the commander of Gitmo Camp 7 during the first few years of its operation. Camp 7 is the prison used to house detainees while they were being taken to a facility called Echo II to be questioned. This witness was called by the prosecution and he was never named.
Prosecution attorney Robert Swann conducted the direct questioning. The point of his questions seemed to be to establish an image of relatively luxurious conditions under which the detainees were held. This was somewhat undermined by an early lapsus linguae, when Swann said, “And the detainees could press a button in their cells to request water boarding … er, water bottles, correct?
Wow. Just wow. We all looked at each other in the gallery. Did we hear correctly? Did he really say that? I began wondering if I was wrong thinking Swann was a prosecution attorney; maybe he was a defense attorney? No competent prosecution attorney would want to put that particular image in the head of anyone in the courtroom. But Swann really was a prosecution attorney. So, I thought, was there some other subterfuge at work? Some strange twisted bit of snarkyness or complicated deliberate suggestion-making in play that I could not fathom? Such weird opposite-day type logic is actually the norm at Gitmo, so this is not far-fetched thinking. Later we all discussed the slip and agreed it was purely a mistake, and a really bad one.
Swann was clearly off his game that day, because it wasn’t the only error he made at the podium while questioning the Camp 7 commander.
Defense Counsel James Connell objected at one point when Swann interrupted the witness. Connell asked that the witness be allowed to finish his statements before counsel began speaking. Judge Cohen sustained the objection and Swann explained, “I apologize Your Honor, but I am hard of hearing. I frankly cannot hear much of what is being said in this courtroom, so sometimes I simply don’t know when I’m interrupting.”
Cohen nodded in understanding while I quietly empathized, suffering from the same problem myself. However Connell was having none of it. He calmly spoke up again. “Your Honor, I understand and can sympathize with Mr. Swann’s situation. But in this case Sir, counsel preceded his interruption with the words ‘Excuse me’, which is not indicative of being unable to hear the witness.”
BOOM. I was in awe. Who remembers it when a person has said, “Excuse me”? Such brief utterances are as unmemorable as grunting or saying “uh”. Yet Connell remembered. And he used that fact to simultaneously flambe the prosecution’s assertion about the interruption, put the prosecuting attorney’s credibility in question in the eyes of the judge, and subtly suggest that the only reason the prosecution might interrupt its own witness was as a deliberate attempt to suppress information he might share.
That moment, however brief, was the most telling of the entire week. It encapsulated the disingenuous nature of some of the prosecution’s claims that they have shared anything and everything available to them. It illustrated Connell’s supreme skill at capitalizing on every opportunity, whether planned, expected, or impromptu, in real time. And most of all, it momentarily pulled back the cover on the proceedings to reveal that there is, without a doubt, a great deal that the government has to hide.
Swann spent the next hour or so prompting the witness to expound on the exercise opportunities afforded the detainees, their ability to communicate with each other and the guards, and the amenities provided to them (clothes, choice of shoes, Koran, library, private lanai on outside of each cell). He was specifically keen on the various kinds of health care afforded each of them, pointing out that they had not just medical, but dental, optical, prescription drugs, psychiatric and other types of attention. It occurred to me that he was playing to the conservative members of the audience who would be incensed that their taxes paid for the provision of such things to this century’s most notorious prisoners when many in the US cannot afford those services for themselves.
In cross-examination Connell and company removed the rose-colored filter and refocused the lens on that image, carefully drawing out less-than ideal details of the confinement environs and practices. At the same time, he systematically showed that there was clearly more than one and perhaps as many as four total agencies having authority over operational decisions at Camp 7. The latter point is important to establishing that there was cooperation between and among the various government agencies during the detainees’ early days at Gitmo, precluding the possibility that a “clean questioning”, one devoid of CIA interaction or influence, could have been possible. The lack of such “clean questioning” puts all defendants’ statements during that critical period in question, casting doubt on there ever being a possibility of admissible evidence coming from the accused themselves.
Part of Connell’s cross-examination of the witness required those in court to be able to simultaneously look at several photos of the cells, hallways, and other areas inside Camp 7. Since these photos are classified, it was decided that they could not be put on the document camera, which broadcasts not only to the monitors in the courtroom but to those on 40-second delay to the gallery as well. Upon information that the gallery monitors could be isolated from the system, further concern was raised that the gallery personnel could still see the images on the monitors used by attorneys situated in the back of the courtroom. Protracted discussion on this followed, including a statement by a member of the defense team that this problem had been encountered years before, and at that time it had been determined that special monitor screens or software was determined to be the solution. However, the funds to purchase these items were never provided, and the situation was allowed to lapse. The question of what, exactly, the gallery audience could see was discussed some more, with the final decision being that proceedings would be halted for as long as it took for various members of both teams to enter the gallery and judge the risk for themselves. An innocuous sample document was displayed on the courtroom monitors and we sat in the gallery as quietly as possible while the back doors of the courtroom opened and over a dozen members of both teams entered our space to see what was visible on those rear courtroom monitors from our vantage point. Whispered discussions were held, gestures were made, brows were furrowed and serious looks were exchanged.
I leaned over to my companions and said, “Since this has been encountered before, how is it that a simple solution like a screen over our window to be pulled down or up in times like these has not been adopted? Or how about this idea – in the time it has taken them to study all this they could have just made copies of the photos and passed them out in the courtroom. Each minute of this proceeding costs thousands of dollars.”
A woman in the row in front of me overheard and turned around. “Welcome to the military commissions,” she said.
After more than an hour, all returned to their seats and Connell resumed his cross-examination. “I have resorted to the low-tech solution of having copies of the photos made and a packet prepared for all those in the courtroom so that we can proceed,” he explained.
Over the course of the rest of this line of questioning we nudged each other frequently as the classified photos briefly became visible on the monitor whenever the judge or witness turned a page in their packet, particularly when they paused, hand holding up a page in mid-air, while doing so. Confounding failure after such extensive fuss seemed so fitting under the circumstances. The deep irony and futility of resolving even the most mundane of structural issues were just more examples of many at Gitmo. And here by week’s end we hardly cared, resigned to accepting yet another betrayal of propriety as perhaps just about everyone else involved for years in the entire operation there had become.
At several points during the day the gallery monitors stopped audio broadcast and cut to a still image of the five military seals on the wall behind the judge, indicating that someone had called out “505” during the proceeding. This act is akin to a referee throwing a flag and whistling at a football game; it stops all activity until a perceived violation is resolved. In military commissions ritual, it alerts the judge to possible “spillage” of confidential information. During these times we watched the courtroom action in silent-movie style, trying to guess by reading faces and body language what was going on and how long it might take to resolve. Typically both defense and prosecution teams would huddle in the middle of the room and try to work out a resolution. The discussion could be as prosaic as how to word a question to satisfy the need for information while safeguarding protected material. But sometimes it was clearly more contentious than that.
Following one such heated delay Cohen granted a request to speak from Walter Ruiz, attorney for defendant Mustafa al-Hawsawi. Ruiz pointed out that the judge was not being made aware of the reason the prosecution had called the 505, suggesting that perhaps the prosecution was calling 505s at will in order to block any information they wished, confidential or not, from public knowledge. He was urging the judge to take a more active part in the ground rules for the use of 505 motions, but the judge pointedly declined. Ruiz tried again to make the judge understand, and Cohen assured him that the matter was well in hand and proceeding as he, the moderator of these proceedings, wished. The judge’s tone dripped with impatience, perhaps based on a perception that he was being instructed on how to run his courtroom. Ruiz fell silent, shaking his head. Cohen pounced. “Mr. Ruiz, you do NOT shake your head at me,” he ordered. It was a rare moment of anger from an otherwise gracious and approachable magistrate. Ruiz attempted to rally, saying, “I was not shaking my head at you sir, I was shaking it at the situation.” The judge glared at him and stated curtly, “We are in recess”. He rose and exited the courtroom so briskly we barely had time to obey the “All Rise” command from the gallery supervisor, especially since the real action was already on a 40-second delay. It was the longest recess of the day, heavily overhung by the knowledge that somewhere behind the courtroom, in a makeshift personal chamber of what itself was provisional courtroom housing, the judge was fuming in anything-but frivolous ire. By the time Cohen returned all had blown over, and his demeanor was restored.