A Devastating Condemnation of Guantánamo’s Military Commissions by Palestinian-American Journalist P. Leila Barghouty

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By Andy Worthington, April 10, 2018

Six years and three months since Tom Wilner and I launched the Close Guantánamo campaign, we are becalmed in horribly unjust waters, with Donald Trump resolute that no one should leave the prison under any circumstances, and, as a result, 41 men held in what must appear to be a never-ending limbo, even though five of them were approved for release by high-level government review processes under President Obama, and another man, Ahmed al-Darbi, continues to be held despite being promised his release — to be re-imprisoned in Saudi Arabia — four years ago in a plea deal in his military commission trial.

Twenty-six other men are held indefinitely — and lawyers for some of them submitted a habeas corpus petition on their behalf on January 11, the 16th anniversary of the opening of the prison, on the basis that, as the New York-based Center for Constitutional Rights explained, "[Donald] Trump’s proclamation against releasing anyone from Guantánamo, regardless of their circumstances, which has borne out for the first full year of the Trump presidency, is arbitrary and unlawful and amounts to 'perpetual detention for detention’s sake.'"

The other men still held — nine in total — have been through the military commission process, or are facing trials, and this latter category of Guantánamo prisoner came under the spotlight recently in an article written for a new website, The Outline, by P. Leila Barghouty, a journalist and filmmaker based in New York City, whose work has appeared on Al Arabiya, National Geographic, Slate, CNN, Vice News and Netflix.

Barghouty spent a week at Guantánamo observing the latest pre-trial hearings for the five men accused of involvement in the 9/11 attacks, and we’re cross-posting her article below, as it shines a much-needed light on the inability of the military commission trial system to deliver justice.

In the pre-trial hearings that were the occasion for her visit, for example, the latest scandal involved two memos issued by the government to the defense teams last fall, which, as she put it, "said that if the defense attempted to independently interview members of the CIA, or travel to former black site locations to investigate the conditions of their clients' torture and detention, they might face criminal charges themselves." As she explained, "The government essentially paralyzed the defense’s ability to defend their clients."

This absurd intervention in the 9/11 trial preceded another disaster — the complete collapse of the only other long-running military commission trial, that of Abd al-Rahim al-Nashiri, accused of masterminding the bombing of the USS Cole in 2000, in which 17 US sailors died, and which I wrote about here.

One week at Gitmo
By P. Leila Barghouty, The Outline, March 19, 2018

Waiting for a trial that may never come.

Almost every part of Guantánamo Bay, the U.S. naval base on the southern coast of Cuba, is surprisingly underwhelming. A short ferry ride from Leeward Point Airfield at the nearby Guantánamo Naval Base is the dusty tent city where members of the media, non-government organizations (NGOs), and legal defense teams stay while attending hearings for the Guantánamo Military Commissions, which were ordered by President George W. Bush in 2002. Over the last six years, there have been 28 pre-trial hearings, meant to resolve legal questions before the five men alleged to be responsible for 9/11 actually go to trial. Each hearing lasts one or two weeks. In February, I went to Guantánamo for the latest one, in which defense and prosecution lawyers tried to hash out the minutiae of exactly how the accused will be tried.

In the 17 years since 9/11, no convictions have been made in the case against the so-called "9/11 Five": Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al Shibh, Ammar al Baluchi, and Mustafa Ahmad al Hawsawi. Since their renditions, the defendants have been held secretly by the CIA, tortured, moved from black sites to Guantánamo, taken to court, had their case thrown out, and then been taken to court again. Because so many aspects of this case are unprecedented — from the scale of the attacks to the use of torture — arguing the pre-trial details is taking far longer than it should.

Of all the alleged terrorism cases being tried by the government at Guantánamo Bay, the 9/11 case is the highest profile. Ten members of the media showed up for this hearing, including me, two eager college journalists, and a VICE camera crew. It was the largest cohort in a while. About 20 NGO workers also came down to report on the human-rights conditions and analyze the fairness of the system. Every session, a group of Victim Family Members (VFMs) are invited to observe court; the Office of Military Commissions offers trips for them by lottery. About a dozen were there for the week’s proceedings.

Visitors of the Military Commissions stay at Camp Justice, which is a 15-minute drive from the detention camps. Each group of outsiders has a designated public affairs officer and a group of Army sergeants to make sure everyone is fed, informed, and punctual for the entirety of their stay on the base. A Navy commander led our group through security, badging, and tent tours like it was orientation day at Camp Justice. In many ways it was, since it was the first time on a military base for several of us.

The party

The night before the hearing started, there was only one thing on the agenda: a house party.

There are five defense teams in Guantánamo for the hearing, one for each of the accused. Including lawyers, paralegals, translators, analysts, and other investigators, each team can have up to 20 members. Ammar al-Baluchi’s team is by far the most vocal and the most determined to keep the media up-to-date on the progress of the case. Al-Baluchi is accused of funding the hijackers and helping them travel to the U.S.; he was arrested in 2003 in Karachi, Pakistan. Before each hearing week begins, his defense team throws a barbecue, hosting NGO observers and members of the media. This time, the party happened at a two-story Guantánamo Naval Base townhouse that rents for around $50 a night. House-party staples lined the walls of the first floor — coolers filled with beer, a counter stacked with multi-colored plastic cups and bottles of hard liquor, and a table with several trays of fried food.

Once the group had obtained an acceptably light buzz, lawyers Alka Pradhan and James Connell III, al-Baluchi’s human rights counsel and lead defense counsel, respectively, gathered everyone into the living room. A somber tone immediately replaced the playfulness.

"We need you guys," Connell said to the reporters in the room. Though everyone there was invested in what happens to the alleged plotters of 9/11, it was also clear they all believe their work has gone largely unnoticed, and they’re absolutely right. The case against the so-called "masterminds behind 9/11" has slipped so far under the radar that the one television crew that showed up to this hearing, from VICE, didn’t even know that they wouldn’t be able to film the detainees (even though the "Media Ground Rules" form they had to sign clearly states such images "must be avoided for reasons of national security").

In their remarks to the partygoers, Connell and Pradhan stressed that the CIA’s torture of al-Baluchi has completely tainted the possibility of him getting a fair trial. Connell waxed poetic about the flaws of Military Commissions and the inhumanity with which the detainees have been treated. His speech is filled with with such confidence and conviction that some of the younger reporters and NGO workers looked wide-eyed and inspired. A legal fellow from Human Rights First said quietly to a colleague, "it feels like we’re in the Twilight Zone, doesn’t it?"

The party ended at exactly 9 p.m., when the Army sergeant assigned to escort us after-hours said it was time to go back to our tents.

The procession

The hearing was slated to begin around 9:00 a.m. At 8:15, media started taking their seats in the gallery at the back of the courtroom, which is separated by three panes of soundproof glass meant to keep any classified information from ever leaving the building. For this reason, a row of closed-circuit televisions in the gallery play images and audio from the courtroom at a 40-second delay.

Each of the 9/11 Five slipped one by one into the makeshift courtroom of the trailer-like Expeditionary Legal Complex as we waited for the hearing to begin. As "high-value detainees," or HVDs, every move the Five make is carefully restricted. They’re completely segregated from the rest of the detention center, and are allowed fewer privileges than some of the "low-value detainees," who can channel-surf a limited list of programming from communal cell blocks.

On the other side of the Expeditionary Legal Complex’s walls is a sniper-netted outdoor enclosure in which five identical freight-container-sized metal boxes sit parallel to one another. These are the Five’s cells. Inside each is everything a detainee needs, at least according to the Bureau of Prison’s standards for long-term confinement. There’s a three-inch thick cushion on a hard platform about two feet off the ground. A thick layer of chipped yellowing paint coats the cell from floor to ceiling, the monotone broken only by a black arrow stamped across the floor. It faces Mecca. A stainless-steel toilet and a tiny hand sink sit in the far right corner of the cell, just underneath a security camera meant to capture each detainee’s every move.

During a tour of the facilities, John Imhof, the officer who oversees operations at the commissions, said that the detainees often cover the camera with toilet paper when they go to the bathroom. He said, since the toilet paper only partially obstructs the guards’ view, the detainees are usually allowed a fleeting moment of perceived privacy.

Walid bin Attash was the first to enter the courtroom on day one. He’s accused of running the Al Qaeda training camp in Afghanistan that two of the 9/11 hijackers attended. He’s also alleged to have been selected to be a hijacker himself. To the surprise of several first-timers watching from the sound-proof gallery, he wasn’t wearing the iconic Guantanamo orange jumpsuit. Years ago, the defense won their clients the right to dress in an outfit of their choosing during court proceedings. Bin Attash wore a camo jacket and a white headdress. He looked more tired and aged than someone just shy of 40 years old should. When the gloved guards let go of him, he carefully draped a scarf over the computer on the table in front of him — a keffiyeh, complete with an image of the Dome of the Rock and a Palestinian flag.

Khalid Shaikh Mohammed, the alleged conceiver of the 9/11 plot who is thought to have pitched the idea to Osama bin Laden, was next. The accused sit in rows of tables in the order of most-to-least charged; Mohammed is always at the first table. He also wore a camo jacket, which was rumored to have been purchased for him at Sears. His face was framed by a long, coarse, neon-orange beard; it’s unclear how he keeps the color so vivid. He calmly sat down, immediately greeting his team with a polite smile and what looked like friendly chatter. The accused speak English, but they’re provided with a live Arabic feed of the proceedings, as well as their own interpreter. When asked to address the court, they usually speak in Arabic.

Mustafa Ahmad al-Hawsawi, Ramzi bin al-Shibh, and Ammar al-Baluchi filtered in next. Al-Hawsawi is accused of helping finance the hijackers, and al-Shibh is accused of financing and helping them find flight schools. The Five greeted one another and their teams. On the ground at their feet were heavy chains, there in case they needed to be restrained to the floor. To the dismay of some of the 9/11 victim family members watching from the gallery, none of the Five were shackled.

Just outside the courtroom, a uniformed military police guard seemed to be losing his patience with a three-foot iguana that was determined to squeeze into the detainee enclosure. As it attempted to slip through a gap between sniper netting and chain link fence, the officer gave it a swift kick in the face.

Order in the court

Colonel James Pohl has been the presiding judge over case for the last six years. He sat at the front of the room with a permanent look of baseline annoyance. Though it was on the minds of everyone there, the judge only briefly touched on the recent firing of the Convening Authority, Harvey Rishikof, who was suddenly dismissed by Secretary of Defense Jim Mattis earlier in the month. The Convening Authority oversees the entirety of the Military Commissions, thus Rishikof’s firing has created a huge hole in the court’s management. The defense is left uncertain, as the Convening Authority has the power to determine funding and change several aspects of the war court’s process. Judge Pohl offered no satiating explanation as to why Rishikof was let go. Then, he opened the floor.

David Nevin, the Boise-based lead counsel for Khalid Sheikh Mohammed, took to the microphone. "Mr. Mohammad, at this point, is being represented by counsel who are laboring under a conflict," Nevin said. "Who are forced to choose between following the government's rules about investigation on the one hand or, on the other, following our obligation that's clearly articulated in the U.S. Supreme Court."

Nevin was referring to the issue that ended up dominating the week’s proceedings. In fall of last year, the government issued two game-changing memos to the defense teams. The documents said that if the defense attempted to independently interview members of the CIA, or travel to former black site locations to investigate the conditions of their clients’ torture and detention, they might face criminal charges themselves. The government essentially paralyzed the defense’s ability to defend their clients.

As of January, al-Baluchi’s defense team had interviewed at least 75 witnesses who would have been prohibited under the prosecution’s limitations. Fearing prosecution, al-Baluchi’s lead counsel felt compelled to issue a memo to his own team, putting a halt on investigations into al-Baluchi’s case. Though all members of the defense team, civilians included, have top-secret clearance, the government has repeatedly denied them access to evidence, records, and other materials that they believe to be essential to their ability to defend their client.

As an act of de-facto protest, Nevin barely spoke at the hearing for the rest of the week. When another defense team made a point he agreed with, he said things like, "We would like to be heard on it, but, as we advised you earlier, we’re laboring under a conflict and therefore are not going to speak to it at this time."

Though Judge Pohl has made no formal ruling on the prohibition of the defense’s investigation, he did agree that the government’s original memos were inconsistent and difficult to understand. So he asked Jeffrey Groharing, a prosecution attorney, to clarify for the court.

Groharing, a major in the Marine Corps who looks like he could have been cast as the high-school quarterback in a John Hughes movie, stumbled over his words. Since he wasn’t able to give a clear answer, the judge ordered the prosecution to rewrite the guidance.

That was it. An entire day at the Guantánamo Bay Military Commissions. It felt as though almost no progress was made. Apparently, that’s normal.

Protecting humanity

"I don’t think that there is any real evidence that the government has at this point that is not tainted by his torture," al-Balachi’s human rights counsel, Alka Pradhan, said to me during an after-hours conversation back at Camp Justice. Pradhan is a media favorite; she’s young, charismatic, and extremely knowledgeable on international law and torture. Last December, The New York Times ran a profile on her called "Alka Pradhan v. Gitmo," cementing her celebrity status among Guantánamo nerds.

Pradhan’s team believes that the CIA’s Rendition, Detention, and Interrogation program (RDI) has caused so much damage — to her client as well as to the sanctity of the justice system — that it’s impossible to pursue any semblance of a fair trial. The RDI program was the CIA’s notorious torture program. In the periods between when the 9/11 defendants were arrested and eventually moved to Guantánamo, they were held at secret black sites all around the world. In the Senate Intelligence Committee’s report on CIA torture, some of the "enhanced interrogation methods" used on these men were described. Still, the government has spent six years of the 9/11 hearings blurring timelines, withholding facts, even unlawfully surveilling private attorney-client meetings. From an observer’s perspective, the cloud of frustration and hopelessness that permanently hangs over this case is exhausting.

Pradhan believes the defense is entitled to all the records of al-Baluchi’s time in CIA custody, "from capture to Guantánamo." She told me the hardest thing to reconcile is the humanity of her client with the inhumanity of the government.

Naturally, the relationships between lawyers and defendants is complex. Connell said that his relationship with al-Baluchi was once so strained that the accused refused to speak to him for two years. Connell told me this story without a single drop of disdain, frustration, or grudge.

"He thought we were useless," Connell said. "Every bad thing short of death that can be done to these men was done, what does he think a lawyer’s going to do for him?"

The nightcap

On our last night in Guantánamo, the smell of liquor and stale beer floated along the path towards the tents. On the NGO side, you could hear law students and human-rights workers yelling about how the military doesn’t understand Islam, and how the system needs to change. On the media side, veteran reporters swapped war stories and overplayed their cynicism. One young aspiring JAG officer yelled "FUCKIN’ QUOTE ME" at the top of his lungs in the direction of the media table.

Every single person — detainee, defense lawyer, prosecutor, journalist, NGO worker — seemed to truly believe in what they are doing. If one thing tied them all together, it was a deeply reflexive sense of conviction.

It’s absurd how, as Pradhan pointed out in court, even at the world’s most secure military detention center, mistakes are common. The government will get dates wrong. A news crew will think they can interview a high-value detainee. A lawyer will mistakenly share confidential information. It almost felt as though everyone involved is so utterly exhausted by the drawn-out process, there was no energy left to try and mitigate mistakes. After all, outside of the court staff and the few who came down to observe, nobody seems to care whether the 9/11 case ever goes to trial.

For Guantánamo Bay’s visitors, the last night at camp was punctuated by slurred speech and games of "fuck, marry, kill." It was an effective way to transition back into our normal lives, where not many are eager to talk Al Qaeda, torture, and 9/11. Six short miles up the road, the men being charged for the worst day in modern American history were already back to their normal routines; sitting in isolated cells in orange jumpsuits, waiting for a trial that may never come.