In November 2001, President George Bush issued an order authorizing the creation of military commissions to try non-citizens accused of international terrorism, being members of Al Qaeda or of harboring terrorists. One month later, the New York City Bar Association’s Committee on Military Affairs and Justice issued an extensive report addressing the shortcomings of military commissions. Eight years of court challenges and modifications of the military order resulted in the Military Commissions Act of 2009, which governs the current proceedings in Guantánamo. Since that act, the city bar has closely monitored the Guantánamo proceedings, highlighting potential violations of U.S. and international law, urging use of civilian courts, and recommending the closing of Guantánamo.
In response to concerns about the lack of transparency of the commission proceedings, the government established an observer program for NGOs. The city bar has been granted observer status and has regularly sent representatives. We recently traveled to Guantánamo as observers from the Military Affairs and Justice Committee in successive weeks in February 2016.
Our report on the current status of these death penalty proceedings can be summarized as follows: ongoing delay and proliferation of pretrial motions with no trial in sight, a decade after the prisoners were moved to Guantánamo.
Observers met at Andrews Air Force Base and joined about 70 individuals on the flight to Guantánamo. Passengers included counsel, members of victim’s families, and a vast array of personnel to support this massive endeavor. All supplies, from legal pads to food, must be transported to this remote trial site.
The government’s attention to security was a constant. Each of the NGO groups had three or four civilian and military escorts for the entire week. To observe the proceedings, we were escorted to a section of the courtroom that constitutes the viewing area for the press, the victims’ families and the NGOs. This area is separated from the courtroom by a glass divider. The proceedings can be observed through the glass and on monitors.
The purpose of this partition became clear when a red light flashed and a buzzer sounded as a witness began describing being taken into a black site. The partition allows for a 40-second delay to block any classified information. The courtroom shut down and the observers waited outside while the judge and attorneys determined what the witness could say. The extent of the focus on protecting classified information was further underscored when counsel for 17 media organizations argued a motion at the podium in the courtroom, was then escorted to the viewer area, and then brought back down to the podium for the rebuttal argument.
The military judge sits at the front of the courtroom and faces the defense tables on his right, where each defendant is seated with military counsel, civilian counsel and learned counsel (an experienced death-penalty lawyer).
The prosecution team led by General Mark Martins sits on the left. The overwhelming tone is one of decorum. Gone is the newspaper image of Khalid Sheik Mohammed with wild hair in a T-shirt. Each defendant is dressed in long white garments. Most women civilian defense counsel have their heads covered at their clients’ request. Although there are many guards in the courtroom, the defendants are not restrained in any way although heavy chains are built into the floors below the defendants’ chairs.
The five defendants in the 9/11 cases have been at Guantánamo since at least 2006, and pretrial proceedings continue with no date set for the death-penalty trial by the full military commission of 12 officers. This delay has led many to question the effectiveness of the commission as the forum to try these old terrorist cases. We certainly do.
There are a number of reasons for the delays. First, it should be noted that the military commission is a new creation of Congress with its own statute and operations. Thus, unlike the federal courts where there are years of precedent, many of the questions raised are issues of first impression and must be briefed and decided by the presiding officer. Even with respect to due process, while some of these rights are codified in the statute, others are being established through the emerging case law.
Another contributing factor to the delay is the basic tension between the accused’s due process rights, the public and defendants’ interests in a public trial, and the government’s need for secrecy. The statute does not empower the military judge to declassify anything that has been deemed classified by the government. These secrecy concerns appear to be heightened with respect to the fact that many defendants at Guantánamo were tortured in black sites before being sent there. That story is told in the executive summary of the Senate Intelligence Committee Report made public and part of the record in the 9/11 military commission pretrial proceedings, and confirmed by the chief military prosecutor at Guantánamo Bay as reported in a Washington Post article on Feb. 10, 2016: “Military prosecutor: Senate report on CIA interrogation program is accurate.”
Government conduct with respect to access to the detainees has caused other delays. Basic functions such as confidential client interviews, telephone calls and letters with counsel, security clearances for members of the defense team, confidential attorney-client communications, and permitting counsel to share discovery documents with clients all have been hampered by government interference and have been the subject of motions. Many of these motions have constitutional implications, with concerns heightened because the government is seeking the death penalty.
Another constitutional issue is public access to and transparency of the proceedings, which has First and Sixth Amendment implications. For example, transcripts that should have been made available on a daily basis were sometimes not posted, and several transcripts were taken down after posting. During the second week of our observations, we witnessed the government’s attempt to withdraw a document with more than 100 redactions it had provided the day before in the courtroom in response to discovery requests. The prosecution argued that some confidential information in addition to the deletions had been left in the document by the FOIA authorities that the government wanted kept confidential and out of the record. The defense teams were notified that all of the computers used by their teams to transmit the document would need to be scrubbed.
Our conclusion on the Guantánamo proceedings from two weeks of observing can be summed up as res ipsa loquitur. Since detainees began arriving at Guantánamo more than a dozen years ago, only four have been convicted in military commission trials and four more had their convictions cleared on appeal.
One of the defense attorneys said he thought it would take five more years to get beyond the discovery stage and to trial, and we saw nothing that would contradict that assessment.
There seems no doubt at this stage that if the five currently on trial had been tried in federal district court, the case would be done. The one Guantánamo detainee who was transferred to federal district court in New York for prosecution was convicted in 2010 and is now serving a life sentence in Colorado. There were no disruptions at the trial nor in the neighborhood where it took place.
We encourage experienced trial attorneys who are members of the city bar to volunteer to go to Guantánamo as observers. They are best equipped to evaluate the strengths and weaknesses of commissions and federal courts. These are historic proceedings and it is important that the organized bar create a record of the delay and difficulties of the military commissions so that future use of them is made with knowledge of how long they are likely to take, how much they are likely to cost, and whether they are reflective of how our legal system, the envy of the world, is supposed to work. Interested attorneys can contact Julie Jetton at email@example.com.
For those interested in learning more about the commissions, a great deal of information can be found at the website of the military commission, www.mc.mil. Background for observers can be found at www.GitmoObserver.com. New York City Bar reports can be found at www.nycbar,org/committeereports. And, an excellent overview of current statistics on the Guantánamo prison, including the rising cost of housing and the shrinking number of detainees can be found at www.miamiherald.com/news/nation-world/world/americas/Guantánamo/article2163210.html.