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January 30, 2017

Gitmo is a Bad Deal

Last Wednesday morning at 9:00, the military commissions at Guantanamo Bay convened for what was supposed to be 2017’s first two-week set of pre-trial hearings in the case against the accused 9/11 coconspirators. It was also the first set of hearings during President Trump’s tenure. Three hours later, they were adjourned until March.

We’ve written at length about the inefficiencies of the military commissions, and gone blue in the face pointing out their unnecessary costs and delays, but this one may take the cake.

On Saturday, January 21st, Cheryl Bormann, the “learned counsel” (i.e. death penalty case expert) for defendant Walid Bin Attash, fell and broke her arm in Washington, DC. Her team immediately filed a request to postpone the hearings, since her injury required surgery, making her unable to travel to Guantanamo. The prosecution protested and urged the judge to keep the hearings on the books. The judge, Colonel James Pohl, decided he needed to hear oral arguments in person.

Yes, we all had to fly to Guantanamo to find out if there would be the regularly scheduled hearings.

Edwin Perry, another attorney on Bin Attash’s team, argued that the Military Commissions Act requires that each defendant in a capital case have a learned counsel present. While each defendant has several attorneys, the learned counsel is the only one with extensive experience on capital cases. Without Ms. Bormann present, Perry argued, Bin Attash did not have proper representation.

Complicating this whole matter is the fact that Bin Attash has been trying for over a year to fire Ms. Bormann, citing irreconcilable differences. Bin Attash won’t allow his defense team to sit with him in the courtroom and hasn’t communicated with them for more than a year. Judge Pohl has ruled that Bin Attash must keep his defense team or go pro se (represent himself). So when Judge Pohl asked Mr. Perry if Bin Attash had waived his right to have learned counsel present, Mr. Perry had nothing to say.

Jay Connell, learned counsel for another defendant, Ali Aziz Ali, aka Ammar al Baluchi, argued that defendants are allowed to waive representation entirely, but do not have the right to waive the presence of learned counsel for particular sessions. In response, Ed Ryan, a Department of Justice attorney on the prosecution, argued that Bin Attash was well represented by the three attorneys present, and that there was no need to delay. Lee Hanson, an 84-year-old man who lost three family members in the 9/11 attacks, was set to give a recorded video deposition on Friday, and Mr. Ryan strongly objected to forcing Mr. Hanson to make the strenuous journey to Guantanamo Bay again.

David Nevin, learned counsel for Khalid Sheikh Mohammed, responded that the lack of a learned counsel for the deposition could cause it to be deemed inadmissible, since Bin Attash was not properly represented.

Judge Pohl ultimately ruled that the commission would not hear any of the motions on the docket, and that the proceedings scheduled for the remainder of this week and the entirety of next week were cancelled. He said the deposition would still be taken on Friday the 27th, but did not address Mr. Nevin’s concern that it may end up being for naught.

So, three short hours after we started, the week was over. The U.S. government spent $180,000 to charter commercial jets to fly us all down and back, only to learn that the hearings could not move forward.

Without the possibility of moving up our Saturday return flight, our escorts organized activities for the NGO group. Thursday’s schedule included a tour of the detention facilities. But Human Rights First has long boycotted tours of the detention facilities, because human rights observers, including the United Nations Special Rapporteur on Torture, are not allowed to visit any of the detainees. Currently, only International Committee of the Red Cross representatives are allowed to meet with the detainees, and their assessments cannot be shared with governments or civil society.

But even that may be under threat. Last wek the New York Times obtained a draft executive order from President Trump which indicates that, despite the stances of experts and all of his National Security Cabinet members, President Trump not only supports the use of torture, but is considering reopening the “black sites” where so many detainees were brutally treated. He also wants to use the Guantanamo detention facility for future ISIS detainees.

If President Trump is serious about his desire to "Make America Great Again," he needs to abandon the idea of reviving illegal torture methods and continuing indefinite detention.

He should also examine the military commissions at Guantanamo Bay. More than fifteen years after 9/11, trials of the alleged perpetrators are still years off. The government spent hundreds of thousands of dollars this week transporting hundreds of people to hear three hours of argument on why they could not proceed. Such delays are typical. Legal and national security experts agree that federal courts could easily handle these cases, in a fraction of the time and for a fraction of the cost.

A businessman like Mr. Trump should realize that the military commissions at Guantanamo are a bad deal.