JURIST Guest Columnists B. Shaw Drake and Mai El-Sadany, Georgetown University Law Center, Class of 2015, discuss the military’s violations of the due process of prisoners at Guantanamo Bay since 9/11…On March 18th President Obama said if he could relive his first day in office he would have closed Guantanamo Bay. As disastrous as the detention center has been for America’s international reputation, the Military Commission system has been an equal debacle of justice.
“But the problem is I cannot trust him because he was working at the black site with the CIA and we know him from there.” Such were the words of Ramzi bin Al-Shibh, 42-year old accused 9/11 co-conspirator, who, one quiet Monday morning, addressed Judge James L. Pohl of the 9/11 military commission at Guantanamo Bay and uncovered the identity and background of the new interpreter who had recently been assigned to work with his defense team. Revealing what some defense counsel referred to as a “silent, yet deadly grenade.” The gravity of bin Al-Shibh’s statement left a heavy air in the courtroom, off-roading the trajectory of the process once again after months of hiatus.
Initially prepared to argue procedural issues of severance, defense teams quickly scrambled to request that proceedings be halted, utterly shocked at yet another surreal reminder of the men they were representing, the venue in which they were appearing and the process in which they were partaking. By week’s end, defense, prosecution, judge and NGO observers all packed up, uncertain of how the deteriorating status of due process would be resolved and unclear as to when they would return to the island next.
At best, the CIA interpreter is an example of governmental incompetence in adjudicating a fair trial. At worst, it is another instance of an outside agency attempting to infiltrate the defense teams. Regardless, the 9/11 trial has been plagued by numerous examples of due process violations that allude to an increasingly-undeniable realization that the military commission may not be the most appropriate venue for a fair trial.
In 2013, defense attorneys were shocked to find out that the smoke detectors in their attorney-client meeting rooms were actually CIA listening devices connected to a nearby room where an agent sat listening to privileged conversations. Air Force Capt. Michael Schwartz described feeling nauseated when he stood up on his chair, read the company name of the smoke detector and ran a Google search only to reveal the disguised listening device manufacturer. Adding an even more surreal element to the proceedings, it was also later revealed that the CIA maintained outside control over the top-secret courtroom’s public audio feed and that defense desk microphones continued to pick up confidential conversations when they appeared to be turned off. As recently as April 2014, a member of the Al-Shibh defense team was approached at his Virginia home and convinced to sign a nondisclosure agreement with the FBI, raising potential concerns regarding a conflict of interest. While the extent and nature of the FBI investigation has yet to be revealed, it is clear that an outside agency successfully gathered information from within the defense team, calling into question the ability of the attorneys’ to continue their representation and further highlighting the slew of problems associated with a military commission.
The glaring question of motive behind these actions is purely a matter of speculation. Agency officials have used national security concerns to justify the monitoring of the defense teams charged with representing the most notorious terrorist suspects in US judicial history. What is not speculation however is that the military commission was first established to conceal the extent of US torture programs and other classified information.
With the much-anticipated release of the Senate’s Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program [PDF], more commonly referred to as the “Torture Report,” the case for a military commission becomes less compelling. Revealing thousands of pages of detail on the “enhanced interrogation techniques” employed by the US government on detainees between 2001 and 2006, the report sheds light on the confinement conditions and treatment that may have produced some of the evidence that is currently being amassed against the “9/11 five.” More importantly, the report changes the dynamics inside the Guantanamo courtroom. For years, the word “torture” could never have been spoken inside the courtroom; when the court finally reconvened during the week of February 9, 2015 for the first time since the report’s release, lawyers could finally refer to the torture their clients had been subjected to. Defense attorney Walter Ruiz, representing defendant Mustafa al-Hawsawi, explained why his client had spent the last few years with an extra pillow on his chair. He spoke of the “sodomy” and rectal examinations that al-Hawsawi had undergone and the fact that his client continues to undergo chronic rectal bleeding even today due to the complicity of the very doctors who were designated to treat him. “I couldn’t have told you that before the Senate intelligence report was released,” Ruiz says.
Now thanks to the report, defense counsel will be able to cite to a number of conditions and circumstances that are documented by the US government without fear of violating classification guidelines; such conditions will very likely be instrumental in making arguments for what the law refers to as “mitigating circumstances,” paving the way for lesser sentences. The report also counsels towards increasing observability by the public and unlocking key aspects of discovery that will become instrumental as the case finally proceeds on the merits.
The Military Commission Act of 2009 [PDF] establishes the 9/11 military commission in its current incarnation. Those subjected to a military commission “do not benefit from the numerous protections granted in federal court.” Of particular note, military commissions allow for the use of hearsay and other evidence not accepted in federal court. There is no right to a speedy trial; a panel of military personnel, not a civilian jury, determines guilt or innocence. Perhaps of greatest concern is the fact that Executive branch agencies oversee all sides of the proceeding. Defense counsel are appointed military defense attorneys, the prosecution is lead and comprised of high-ranking military officers.
With the world’s eye on Guantanamo Bay and international condemnation of the US for torturing its detainees, the need for fairness and legitimacy in the trial of the “9/11 five” has never been greater. If the US is to retain respect for its underlying values, it must reexamine its current attempts to bring justice to those allegedly responsible for the 9/11 attacks.
At one point in the short history of the 9/11 military commission, there may have been a slight tilt in favor of trying the “9/11 five” in a military court instead of a federal one, a notion once furthered by executive agencies seeking to maintain control over the release of information. Today, with a Torture Report that has increasingly overcome classification limitations and an increasingly worrisome laundry list of incidents chipping away at notions of due process, this is clearly no longer the case.
The circumstances at hand mandate that the Executive and Congress take a moment to reflect on the successes and failures of the military commission thus far and that they ask the difficult question of whether hosting a military trial is truly as beneficial as initially envisioned. While the “9/11 five” can no longer be physically brought into the US in light of congressional directives, it remains an important exercise to brainstorm how best to bring an invigorated sense of due process to the current proceedings, whether that be a change in venue, returning the trial to federal court, or amending the code of military justice.
What makes the US unique in its commitment to justice is that it is willing to hold itself accountable. This spirit remains singular in the international community today and is manifested in the willingness of the government to release information that may incriminate it. This spirit is also undeniably present in the American willingness to try the alleged co-conspirators in the very events that changed the trajectory of the nation, upset its citizenry’s long enjoyed sense of safety and claimed the lives of over 2,800 innocent people. There is no better means by which to continue this unique American spirit than to afford even these men, the notions of American justice, the standards of American due process and the fairness of an American courtroom. The age-old federal court system, an institution that has weathered both classified materials and political questions, is more than capable of handling the case of the “9/11-five.”
The top-secret military commission courtroom, situated on the banks of Guantanamo Bay, is housed in a part of the base called Camp Justice. Surrounded by sniper netting and razor wire, the irony of the camp’s name is lost on very few. From the gallery of the Guantanamo war court, one observes six tables to the left, one for each of the original “9/11 six”, now five. This court was built for this trial, the law was tailored to convict these men, and the government’s action thus far have focused on the concealment of torture, rather than the atrocities on trial in this case. American ideals are superior to those of terrorists because they embody justice, rights and fairness. Justice for 9/11 should not be a justice tailored to the circumstances; it should be the same justice that Americans seek in the courtroom every single day.
B. Shaw Drake and Mai El-Sadany are both third year JD students at the Georgetown University Law Center where their studies focus on civil and human rights law. They were selected on behalf of their University to serve as NGO observers at the 9/11 Commission hearings in December 2013 and February 2014 respectively.
Suggested citation: B. Shaw Drake and Mai El-Sadany, Obama’s Gitmo Regrets Abound: The 9/11 Military Commission-Two Observers’ Perspectives, JURIST – Dateline, Mar. 26, 2015, http://jurist.org/student/2015/03/drake-El-Sadany-military-commission.php
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