Last week I traveled to Guantanamo Bay for the second time this year to observe a week of pretrial hearings in the 9/11 case involving Khalid Sheikh Mohammed (KSM) and his four alleged co-conspirators. Observing all five detainees from a back room separated by soundproof glass, the issues that came up in court were largely the same.
“You get what you get, and you don’t get upset,” repeated defense attorney Lieutenant Colonel Jennifer Williams at the government’s refusal to hand over Mustafa Ahmed al-Hawsawi’s CIA medical records. This phrase resonated in the audio feed as she argued that the government should be compelled to release classified information relevant to her client’s defense.
As of now, the government continues to withhold prisoner journals, medical records, statements, and black site documents on the basis of national security. It summarizes documents and conceals information by unilaterally deciding what is or is not relevant to the case. As a result, the defense teams spend countless hours fighting for more transparency.
Although the prosecution recently submitted 10 categories of discovery on the CIA’s so-called “Rendition, Detention and Interrogation” (RDI) program to the military judge, chief defense counsel Brigadier General John Baker told us that this only represents approximately 0.001% of known RDI discovery. Yet torture remains a relevant and mitigating factor in a case where all five detainees face the death penalty.
Al-Hawsawi’s lawyers are particularly sensitive to this because the CIA’s torture has dramatically impacted his physical condition. As the Senate torture report documents, al-Hawsawi was diagnosed with “chronic hemorrhoids, an anal fissure, and symptomatic rectal prolapse” because of this torture, which has caused him to bleed for over a decade. He is now recovering from rectal surgery.
Lack of transparency is also a major issue when it comes to conditions of confinement in Camp 7, the secretive detention facility in which all “high value detainees” are held. Ramzi bin al-Shibh continues to claim that he is being subjected to mental torture through constant noises, vibrations, and smells that prevent him from sleeping. Al Shibh’s lead counsel, Jim Harrington, said that al-Shibh had “reached a boiling point,” justifying the disruptive behavior that got his client kicked out of the court room on the very first morning.
Harrington also argued that Abu Zubaydah, another “high value detainee” who has been held for 14 years without charge, should be granted immunity to testify in favor of al-Shibh. Zubaydah was the first man tortured under the CIA’s program. As these issues continue to be argued, they create additional delays in the proceedings.
Add to these difficult circumstances the fact that it is still unclear to what extent the Constitution follows the flag all the way to Guantanamo Bay. Part of last week’s hearings involved Brigadier General Mark Martins urging the judge not to rule on whether or not the “confrontation clause” of the Sixth Amendment—which allows defendants to confront witnesses in open court—applies in the military commissions. “Your Honor should not issue a broad constitutional decision absent precise facts,” he said.
Jay Connell, lead counsel for Ammar al-Baluchi, instead argued that the judge should have the power to compel American witnesses to testify, the way he would in any other U.S. court. This was his attempt to obtain a ruling on the applicability of at least part of the Constitution, after Judge James L. Pohl indicated in 2013 that the question of whether or not the Constitution is presumed to apply as a whole was “not yet ripe for decision.”
As of now, a trial date is still nowhere in sight. The myriad of legal issues makes it likely that the case will go on for years, especially given how inefficient the Guantanamo military commissions have proven to be. Had KSM and his four alleged co-conspirators been prosecuted in federal courts, where more than 550 individuals have been convicted on terrorism-related charges since 9/11, the trial probably would have ended a long time ago.
By Kevin Meister
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