A Peek Inside the Mysterious Military Commissions: Observing Guantanamo

When I told a friend that I was going to Cuba as an observer for the military commission hearings, she commented that it was a great opportunity to see the country. Well, Guantanamo is not the Cuba of beautiful beaches; lovely musical rhythms; and walks along the Malecón, the famous five-mile esplanade and roadway along the Havana coast. Guantanamo is a military base in every sense of the word.

I have had the occasion to travel twice to Guantanamo Naval Air Station (GNAS) — Gitmo — as a nongovernmental observer (NGO) on behalf of the American Bar Association, once in 2013 and again in 2019. Each visit was intended as an opportunity to observe motions in the case known as United States v. KSM — KSM being Khalid Sheikh Mohammed, alleged to be the operational mastermind of the September 11 attacks and the alleged killer of Wall Street Journal reporter Daniel Pearl in 2002. (KSM is not on trial for the murder of Pearl.) In addition to Khalid Sheikh Mohammed, the other codefendants are Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi and Mustafa al Hawsawi.

Observers are sent to Guantanamo to fulfill, in some very limited way, the requirements of a public trial. ABA observers are chosen primarily from the ranks of the Criminal Justice Section because extensive knowledge of criminal law is essential. The ABA reimburses its observers, although some of the other organizations do not. The observers all report back to their respective organizations and hope that these reports help shed some light on what would otherwise be a very secretive proceeding.
 

Overview of Gitmo

Located on the tip of one of the most hostile nations to the United States in the Western Hemisphere, Gitmo is a U.S. possession retained by a century-old treaty (the Castro regime has refused to cash U.S. rent checks for more than 50 years). Civilians such as NGOs are required to carry identification (issued when you arrive) at all times. Cell phones don’t work, and there is spotty internet connectivity for civilians. With the exception of calling the United States from shared landlines using pre-purchased phone cards, a civilian observer is pretty much cut off from the world. Observers have no access to television or newspapers. Almost all of the base supplies are shipped in twice monthly on a barge from Florida. A cargo plane brings fresh fruits and vegetables weekly. If observers need sundries or souvenirs during their visit, they can buy them on base at the Navy Exchange.

The Joint Task Force Guantanamo (JTF Gitmo), which operates the special U.S. military commission, is just a small part of the operations of Gitmo. JTF Gitmo once held about 800 prisoners, or “detainees,” but that number has been reduced to 40. The first detainee brought to Guantanamo was in January 2002. The five defendants in the case that I most recently observed were arraigned in 2012. A trial date for 2021 was set in August of 2019.

The yearly cost to operate the base is approximately $540 million. The yearly cost to hold each detainee is more than $13 million, compared to about $78,000 for a prisoner in a maximum-security federal prison. About 1,800 troops are assigned to Gitmo; and in addition to the troops, there are consultants, service personnel, laborers, linguists, and other government workers.
 

The Trip

Getting to Gitmo is an interesting experience. Each hearing requires a major movement of people and materials from the United States. A chartered flight, at a cost of $80,000 one way, leaves Andrews Air Force Base just outside of Washington, D.C., with an assemblage of people comprised of the prosecution team, defense team, judicial and court staff, 9/11 family members (who participate in a “lottery” in which the U.S. Department of Defense (DOD) pays all expenses), media from the United States, and the NGO representatives (there were 14 on my first trip and six on the second).

Everyone was separated from the legal teams and the 9/11 families throughout the travel day. We boarded separate buses and sat in segregated parts of the charter flight. Although the trial teams and family members were allowed to speak to us, we were directed not to approach them. These restrictions relaxed as the trip went on; but at the outset, the separation was strictly enforced.
 

Life at Gitmo

When we arrived at Guantanamo Bay, we were taken from the plane as a group and allowed to mingle on the ferry with the other groups who arrived from the airstrip on the other side of the bay. Once the ferry docked after a 15-minute trip, we were again separated and taken by our military escorts to our quarters at Camp Justice.

Camp Justice is a tent city built on a former airstrip. The accommodations for NGOs and the press, provided by the DOD, are in Quonset-like tents with wood floors and massive, incredibly loud, absolutely necessary air conditioning units. The air conditioning is to keep the tents very cold to discourage the insects. Asking for an extra blanket is advisable. The tents are within throwing distance of the courtrooms (emblazoned with “No Photography” signs) and near to the separate tents for men’s and women’s latrines and showers (also exceptionally cold). One enterprising female journalist, who shall remain nameless, figured out how to turn off the air conditioning in the shower tents, so at least it wasn’t freezing in the mornings.

At the end of the airstrip stands the courtroom facility referred to as Courtroom Two. Comprised of redundant security checkpoints, each with an X-ray screener and a magnetometer staffed by armed U.S. Coast Guard reservists, this facility also contains modular office units for the prosecution and defense, as well as the courtroom itself. As one would expect, the facility is secured by razor wire, barricades, and manned mobile guard towers.

The Joint Forces Command provides the NGOs with escorts, both uniformed military and some civilian, who accompanied us everywhere and ferried us around the base. They were extremely solicitous to our wishes for food or whatever entertainment the base can provide. There are Subway and McDonald’s franchises on base, slightly more exotic fare at “The Jerk House,” a Mexican restaurant at the bowling alley, and a few other choices. The Galley, or Mess Hall, where most of the uniformed personnel on Gitmo eat their meals, offers many choices and is inexpensive. Escorts also try to entertain the NGOs with sightseeing trips to as much as can possibly be seen on a high-security military installation. We took trips to the beach, a lighthouse and museum, the base radio station (where bobblehead dolls of Fidel Castro are often available and don’t last long), and nightly outdoor movies — all while trying to avoid Chihuahua-sized rats and mosquitoes. Since the court proceedings rarely run as scheduled, on both trips I found myself with a lot of free time to explore the accessible areas of the base.
 

Observing Up Close and Personal

The delays during my first trip due to the illness of one of the defense counsel allowed us a rare visit inside the courtrooms and holding cells. The holding cells are sparse but impeccably clean and relatively spacious by civilian standards; and, most notably, each has a large arrow on the floor pointing in the direction of Mecca to assist those detainees who wish to pray at the appointed times.

The courtroom is very high-tech. Computer screens are provided for defendants, their translators and counsel. In the KSM trial, each of the five defendants has his own row of seating for himself and his counsel, with an extra row at the rear of the courtroom for paralegals and interpreters, who change out regularly because of the stress of simultaneous translation. On the other side of the courtroom is an equal number of rows for the prosecution.

The judge sits in a traditional elevated bench — with one very distinct addition. To the judge's left is a red light that can be activated by an intelligence officer if someone blurts out classified information. To prevent unauthorized disclosure, the press, observers and representatives of victims are all separated from the courtroom in a thick-glass-partitioned room at the back of the courtroom where they can see the proceedings. Audio from the courtroom is delayed by 40 seconds so that it can be muted should the judge’s red light come on. Watching things happen 40 seconds before you can hear them is a little disorienting, so we often just watched the proceedings on the TV screens that correspond with the audio feed.

No electronics are allowed in the courtroom. We were only allowed paper and pens and a bottle of water. An alarm sounds if anyone enters the courtroom with an unauthorized cell phone. That happened on my first trip when a witness violated the prohibition. Disconcerting, to say the least.
The courtroom hosts a full of array of uniformed personnel, from the camouflage of the many security personnel (most from the U.S. Coast Guard, with no names on their uniforms for their protection) to the dress uniform of Chief Prosecutor Brigadier General Mark Martins to the Army and Navy uniforms worn by military defense counsel, whose zeal for their clients doesn’t appear even slightly diminished by the uniforms they wear (each defendant has a lead attorney called “learned counsel,” the military name for someone who is qualified to lead a death penalty defense). Men and women interpreters round out the mix. The female interpreters wear headscarves (hijabs) and robe-like dresses called abayas. Some of the female defense counsel do the same out of respect for their clients’ religious beliefs.
 

2019 Hearings

The April 2019 hearings were the 35th pretrial hearings in the military commission’s prosecution of the 9/11 case. The arraignment took place on May 5, 2012, at which time the military commission charged the five defendants with seven war crimes. Since the arraignment, two of the seven charges have been dismissed but are currently on government appeal.

In August of 2018, now-retired Army Colonel James Pohl detailed Marine Corps Colonel Keith Parrella as the new 9/11 military judge. The April–May 2019 proceedings were the fifth round of pretrial hearings for Judge Parrella. He was the fourth judge in these proceedings, and he resigned after the April–May 2019 hearings.

The military commission determines the schedule at a chambers conference on the Saturday prior to the hearing week. The defense was seeking the disclosure of the Senate Select Committee on Intelligence Committee Report on Torture, the most comprehensive accounting of the CIA’s activities related to the rendition, detention and interrogation of terrorism suspects. The final report is approximately 6,300 pages long and is based on the review of 6.2 million pages of records. The defense has moved for the government to produce the full, unredacted final report, as well as the CIA internal review of the program known as the “Panetta Review,” the CIA’s official response to the Senate Committee study, and any underlying documents referring to or relating to al-Baluchi.

Military Judge Pohl ordered a hearing on the personal jurisdiction of the military commission over al Hawsawi and al-Baluchi. The military commission held a hearing on personal jurisdiction over al Hawsawi but not al-Baluchi. The commission determined that hostilities existed at the time of the charged offenses for purposes of personal jurisdiction over all five accused. Judge Parrella ordered all parties to brief the issues, including whether proof of existence of hostilities is a component of the common substantive element, as well as whether the military judge may determine existence and duration of hostilities established by 10 U.S.C. § 950p(c).
Since 2014, the defense has moved for the government to produce complete, unredacted medical records. The government has produced some records, both in redacted form as well as in “substitution” form for CIA medical records. Separately, the defense has moved for the judge to reconsider Protective Order No. 5, relating to the protection of medical provider identities, and his ruling authorizing the government to contact medical witnesses regarding anticipated defense interviews. This was also the subject of the hearing.

We were supposed to hear testimony from an interpreter who had been recognized by one of the defendants as a CIA interpreter at one of the black sites. This was postponed as the interpreter was unavailable.

We had about two and a half days of hearings. Some hearings were closed to observers because of classified materials being discussed.
 

Homeward Bound

As with the hearings, the journey home never goes as planned. On my first trip, we were delayed 12 hours. On this trip, we were delayed 24 hours. Because the hearings had ended early, some people, including one of the learned counsel, had taken a flight into Jacksonville, Florida, Friday instead of the flight into Andrews Air Force Base on Saturday. The Jacksonville flight was a chartered flight that slid off the runway of the naval air station and landed in the shallows of the St. John’s River (thankfully, no one was killed). In my mind, this only points out the problems with the trials at Guantanamo and transporting everyone on the same plane. In addition, there is no back-up learned counsel for any defendant. If someone cannot continue, it would be a devastating delay to these proceedings.
 

Conclusion

The ABA is both the primary and, in theory, the most even handed of lawyer-based organizations in America, with its primary goal of advocating for the rule of law. America’s justice system will be judged by many in the world by the way the hearings are conducted in Guantanamo. The ABA has a rightful and natural place in that consideration, and it has been a privilege to observe.
 

Want more personalized content? Tell us your interests.