Anne FitzGerald, Amnesty International’s Director of Research and Crisis Response, is currently at the US Navy base in Guantánamo Bay, where she has just observed the past week of pre-trial hearings in the 9/11 case.
In the military commission court – a prefabricated industrial building on a decommissioned airfield surrounded by razor wire – we observers sit behind four layers of soundproof glass, watching proceedings via a 40-second delay. The delay allows the court to cut audio to the gallery, in case someone lets slip any classified information. But even 40 seconds late, the tension is clear between secrecy and the open examination of evidence that marks a fair trial.
The five 9/11 defendants – Yemeni nationals Walid bin Attash and Ramzi bin al-Shibh, Saudi Arabian Mustafa Ahmed al Hawsawi, and Pakistani nationals Khalid Sheikh Mohammed and Ammar al Baluchi (Ali Abdul-Aziz Ali) – have been in the court three of four days this week. None seems to be taking part in the ongoing hunger strike.
Although the base is a self-contained military camp, the defendants are transported from their cells a couple of miles away in armed convoy, each in a specially secured vehicle. They are brought into the court separately by guards, one holding each arm. Another guard follows with a plastic bin, usually containing a prayer rug, a Koran and files. Mustafa al Hawsawi also brings a pillow to sit on. They sit at the end of their defence tables, so they are lined up in a row and able to pass papers back and forth, and talk to each other and to their lawyers – Ammar al-Baluchi in particular never seems to stop. They do not rise for the military judge.
They used to be fettered for court appearances, and there is still a length of heavy chain bolted to the floor in front of each of their seats should it be deemed necessary. They are not in prison uniform, they all wear white clothing, with turbans or headscarves, and Khalid Sheikh Mohammed and Walid bin Attash also wear camouflage vests. Khalid Sheikh Mohammed has dyed his beard orange, and the effect is a little startling. We think he uses fruit juice and crushed berries, but the exact method is a secret, as any information about his detention remains classified.
The beard is not the only secret. Information about the proceedings is rigorously protected. Observers pass through an airport-style search, and can carry nothing but a pen and paper into the court; we are not allowed to draw and anything that looks like a diagram or sketch is confiscated. Electronic devices are not allowed beyond even the outer perimeter – the court was immediately cleared on Tuesday, with a witness in mid-sentence, when a “cell phone buster” detected a signal. Someone had inadvertently left a mobile in a briefcase, and the judge threatened to start searching the legal teams if it happened again.
There have been frequent delays and recesses caused by problems with a secure video link used by some of the witnesses.
Yesterday, Commander Ruiz, counsel for Ahmed al Hawsawi, was finally able to begin his video cross-examination of Admiral David Woods, a former base commander who had instituted a controversial screening policy for attorney-client communications. Commander Ruiz was trying to confirm the commander’s intelligence remit, and asked: “do the entities on the island include the CIA?” The prosecutor immediately shouted “objection, umm, relevance”.
“Is that the real reason?” the judge inquired, before quickly adding “sustained”. Commander Ruiz looked exasperated: “So every time I mention the CIA is there going to be a sustained objection?” Here the feed to the gallery stopped.
When it came on again, about 20 seconds later, Commander Ruiz was still querying the cessation and offered to refer to the CIA only as “the agency that shall remain nameless”. Although the judge agreed that euphemisms might help, Commander Ruiz reasonably argued that he did not want to be overruled on relevance grounds when the information he was trying to introduce was anything but irrelevant. The feed to the gallery stopped again here, and the court was recessed for a “505 hearing”, which happens every time anyone wants to introduce information that may be classified. It seems to happen a lot.
The secrecy surrounding every aspect of CIA and other intelligence operations has long been a tactic used to avoid accountability for the abuses – including torture and enforced disappearance – committed under the US rendition and secret detention programme.
All five of the defendants were subjected to that programme, and information about what happened to them will be crucial at both the trial and possible sentencing – all of the men are facing the death penalty. But if proceedings grind to a halt at every mention of the CIA, it’s going to be a very long trial.
The families of the 9/11 victims, some of whom are here in the gallery, have already been waiting for nearly 12 years. As one of them told me, “it’s important to do this right”.
As far as Amnesty International is concerned, these military commissions were never right and should long ago have been abandoned in favour of trials in the USA’s ordinary criminal justice system, in proceedings that meet international fair trial standards, and without resort to the death penalty.
USA: Words, war, and the rule of law: President Obama revisits counter-terrorism policy, but human rights still missing from legal framework (Briefing, 31 May 2013)
USA: Re Guantánamo: A human rights appeal to the US administration and Congress (Briefing, 17 May 2013)