Blog
Published on April 10, 2019
By Dalya Kefi
In late March, I visited the Guantanamo Bay Military Commissions as an NGO observer. On the docket was United States v. Khalid Sheikh Mohammed, et al, a case against five alleged Al-Qaeda members for their roles in the 9/11 attacks. Seven years into pre-trial litigation, there is no real progress in the case—only questions. When will the case go to trial? Will the detainees die before a verdict can be reached? Are there enough resources to maintain the Military Commissions?
During my week at GITMO, a defense attorney for one of the accused revealed that the government apparently has audio recordings of pre-9/11 phone calls between the alleged co-conspirators. Although the government has had the recordings for years, this is the first the public has heard about them. Jay Connell, the defense attorney for Ammar al Baluchi, asked the court to prevent the audio recordings from being introduced at trial on grounds that the prior judge had made a secret deal with the prosecution to keep the defense from investigating the origins of the tapes.
Lorie van Auken, the widow of a man who died in the 9/11 attacks, lamented that these calls have been “kept secret from us until now…” and that “the calls’ origins, method of collecting them, and chain of custody can’t be examined.” She wondered in a letter to the editor of the New York Times: “What was the National Security Agency doing with the tapes all this time?” Every session of pre-trial proceedings in the case—we have now completed 34 rounds of pre-trial sessions—brings such fights over what kind of evidence the government can use at trial, and to what extent the defense attorneys can investigate and challenge that evidence.
The snail’s pace of the proceedings has serious implications for transparency and the rule of law. When the commissions began, the world was watching. The observation gallery was filled by senior counsel and executive directors of large NGOs, people in positions of power. Eighteen years after the 9/11 attacks, the world has moved on, with fewer and fewer observers making the trip down to Guantanamo. This affects the transparency of the commissions and the connection between the proceedings and the public.
When the Military Commissions were first created, the resources required to sustain complex litigation with national security concerns were not adequately considered. “Defense teams found mold and asbestos in their offices, clothes, and classified papers.” Staffing is low and it is difficult to fill spots on defense teams due to security clearance delays even when the budget allows for hiring. The five defense teams on the 9/11 case were given one trailer as an office, compared to the one trailer used by the single prosecution team. The military commission system presents unique problems that would not exist in other jurisdictions.
The Military Commission’s deference to claims of national security is also a significant impediment to due process in the 9/11 case. FBI investigations into paralegals and attorneys working for the defense, withholding of evidence, and classification drama with the prosecution are just a sampling of issues that have caused extreme delays.
During my week observing the proceedings, Judge Parella expected to hear further testimony from a former defense team interpreter, whom defendant Ramzi Bin al-Shibh recognized from his detention at a CIA black site. The testimony was stayed by the U.S Court of Military Commissions Review at the last minute, in response to a defense team petition challenging Judge Parella’s decision to hold the testimony in closed session. The involvement of the CIA and classification questions have contributed to the drawn-out pre-trial process. Meanwhile, federal courts have been able to handle complex terrorism and national security cases without such delays.
The Military Commissions system is ineffectual. It endures procedural roadblock after roadblock and has left detainees in limbo, their fates unknown.
Whatever your definition of justice, we should all be able to agree that this isn’t it.
