Anniversary is a strange word to apply to Guantanamo Bay. Once used to mark the death of saints, we now use it to celebrate the birth of nations, people and (usually) cheerful relationships and events. There is nothing remotely celebratory, however, about the anniversary of Guantanamo Bay; and its having remained open now for 10 years means we cannot yet speak of an anniversary marking its end.
January 11 has returned each year since 2002, more unremitting, duller each time. The word “Guantanamo” itself means “existence of the sea,” and one is tempted to find a metaphor or two about the relentlessness of the waves hitting its shores. Edgar Allan Poe’s “The City in the Sea” could be thought purpose-made, though its metaphors were meant for an older mythical downfall:
No swellings tell that winds may be
Upon some far off happier sea –
No heavings hint that winds have been
On seas less hideously serene.
The combination of coastal serenity and hideous confines is a confronting one. Or so I read in a first email from Kari Panaccione, an observer at Guantanamo Bay in January 2012 as part of a contingent from Seton Hall Law School in New Jersey, just after her arrival at the naval base:
For the record – it is very, very weird here. The combination of warm island weather and gorgeous beaches combined with the sight and knowledge of barbed wire hut-camps where torture has occurred/occurs is disconcerting to say the least.
I asked her about the experience, beginning with the proceeding she was there to observe.
Right Now: What are the trials taking place at Guantanamo Bay?
Kari Panaccione: The trials taking place right now are military commission trials – they are done under the military system of criminal justice, with its own rules, judges and attorneys. The trials at Guantanamo currently are for individuals that the U.S. government thinks are involved in some way with al-Qaeda or terrorism more generally. The first of its kind involved the Australian citizen David Hicks (while the only other Australian detained in Guantanamo Bay, Mamdouh Habib, was released after three and a half years without charges ever being laid).
What trial did you observe?
I observed pre-trial motions in the case of U.S. v. Al-Nashiri. The trial itself likely won’t happen for a few years.
What exactly is al-Nashiri charged with?
al-Nashiri is charged with planning and carrying out a few attacks on US naval ships. Most notably, he is charged with masterminding the U.S.S. Cole attack of 2000, which killed 17 U.S. sailors. He is also alleged to have been extensively involved with Osama bin Laden and al-Qaeda.
What would be the result of a guilty verdict?
KP: A guilty verdict would put al-Nashiri at risk of being executed. The government is seeking the death penalty in this case – but whenever it does so, the court conducts an extensive sentencing hearing. Here, al-Nashiri will be able to present a lot of mitigation evidence – ironically, the years he spent being tortured in CIA custody will probably be what prevents him from being executed should he be found guilty.
What would be the result of a not guilty verdict?
KP: This is a very controversial issue. Al-Nashiri’s attorneys have argued that even with a not guilty verdict, al-Nashiri will not be released from detention, as are most criminal defendants who are acquitted. The legislation passed by the federal government permits individuals to be detained if they have connections to terrorism and present a threat to national security, indefinitely, while the “war on terror” is being waged. Therefore the government will still justify detaining a-Nashiri, even if he is acquitted, by saying that he is a threat to national security.
Who is the judge acting in the trial?
Colonel James L. Pohl is a military judge that has been appointed to preside over some military commission trials at Guantanamo.
Has al-Nashiri’s lawyer been obstructed in any way in preparing for trial?
The entire context of Guantanamo presents an obstruction for defense attorneys preparing for trial. First and foremost, the attorneys have extremely limited contact with their clients. In-person discussions require flying down to Guantanamo and all of the time and resources that that incurs. Mail and phone calls could be helpful, except that, as we saw in these proceedings, the attorneys can’t be certain that these communications are not being monitored by the government. Not only could this hinder al-Nashiri’s defense, but it would likely violate the attorney’s ethical obligations to keep his client’s confidences – therefore, it simply can’t be done, and attorneys completely stopped sending their clients mail because of this issue. A lawsuit has been filed, on behalf of another detainee, on the grounds that this review violates multiple provisions of the U.S. Constitution and federal law, among other things.
Why is the mail review seen as necessary?
Supposedly the mail reviewing procedure began after an al-Qaeda magazine was received by a detainee. The government would not give details about how and when that happened, nor who was involved. But from the government’s comments it seems that that was the only such incident where something inappropriate was sent via attorney-client privileged mail.
What other issues do defence attorneys face?
There is ambivalence over the extent to which government monitors computers and whether expert evidence or witnesses are allowed for the defense. There are unique evidentiary rules, and the defence is not able to question classified evidence. All of these things just demonstrate the uphill battle al-Nashiri’s defense team has in front of them. Preparing a defense for any trial is difficult – preparing a defense against evidence that you haven’t even seen, while the opposition has seen extensive details about the defense that you will be presenting, is just a ludicrous task. Under normal U.S. court rules, the prosecution has to give the defense a good idea of the kind of evidence it will show to convince the court that the defendant is guilty. Here, al-Nashiri’s attorneys in some circumstances are getting vagaries of the government’s evidence. The rationale for the traditional rule – giving the defendant a fighting chance to show why the government’s evidence against him is not reliable or why it actually proves something other than what the government says it does – applies in any adversarial trial, but the rule is greatly diminished here in the name of national security. What’s more is that the government has the ability to see details of the defense’s case. To say that al-Nashiri is getting a “full and fair trial” is clearly undermined by this imbalance of power.
I understand there was a request that al-Nashiri’s shackles be removed for the trial. Was this refused?
I don’t know much about this situation, but al-Nashiri was not shackled at all for the proceedings at which I was present. He was, however, accompanied by a minimum of six guards at any time. The guards who touched him to walk him in and out of the courtroom – at least four hands were touching him during this process – wore latex gloves. It was a bit bizarre to contrast this procedure with al-Nashiri’s relaxed demeanor and his joking around with the guards during the wait time to go in and out of the tribunal.
Are observers obstructed in gathering or disseminating information on the trial and Guantanamo Bay in any way?
Yes and no. The simple fact that the proceedings are in Guantanamo is a huge hindrance to making the trial public. We are allowed to observe proceedings, although much information is deemed by the government to be confidential. While the motions that are filed are made public (after being heavily redacted, in some cases), many of those motions were not made public even up to the day of the hearing, so we observers actually didn’t have the opportunity to read them and be fully aware of what was being discussed at that day’s hearings.
What was the Commander of Guantanamo, Rear Adm. David B. Woods’ involvement in the trial? What was his attitude towards it?
Rear Admiral Woods is responsible for the security of Guantanamo. Security of the camp was the claimed rationale for “screening” detainees’ mail, including mail from their attorneys, a few months ago. When they learned about this procedure, Judge Pohl agreed with al-Nashiri’s defense attorney that such conduct violated al-Nashiri’s attorney-client privilege. Judge Pohl ordered the government to formulate a procedure that would satisfy the government’s security concerns but also respect al-Nashiri’s right to a defense.
That is how Rear Admiral Woods came to be involved in the case – he was tasked with formulating this procedure, which he did, in the form of an Order. But he clearly was uncomfortable with either his role in the situation, or the legalities of it – I’m not sure what, but he clearly had very little knowledge of what the Order entailed and how it would be implemented. As that is what the Judge wanted to know about, this was a problem. The procedure involved a select team of individuals to perform a very exact “review” of the mail, but Rear Admiral Woods did not know who the individuals would be nor how exactly they would be reviewing it. He was late to arrive, which angered Judge Pohl, and he was hostile from the beginning.
Is this trial an aberration, or will others have access to military tribunals?
Access to military tribunals will likely only increase in the future. There has been significant progress and efforts made by the government to make the trials accessible – although this is because it was a prerequisite set by President Obama to allowing trials at Guantanamo to take place. The Office of Military Commissions have a new motto – “Fairness, Transparency, Justice.” They have viewing sites in the U.S. for victims and the public to observe the trials, so that everyone who is interested does not have to get security clearance and undertake a trip down to Guantanamo. They say that they are trying to increase the viewing opportunities – but this is all progress coming from a place where there was extremely little access. Access – including the redacting of information – is still drastically beneath that which is the norm in federal court.
Does this offer the detainees, who may be innocent, any hope?
To some extent. The progress that has been made in the past few years on the part of the government is important and must be noted. Much of that progress is a result of the attention and critiques the commissions have received from the media, observers and participants. We can’t have any idea what problems exist with the commissions without this access, so as access has increased, so have the reforms, because outside observers are able to bring these issues to light and push for reform.
But the commissions still have such deep structural flaws that would need to be resolved in order for detainees to really be confident that the process would bear out their innocence. Continued and increased access would be a vital component to getting to that point.
What is your overall sense of the differences between a regular US court trial and this military trial? How are they different to civilian trials and the rights that come with them?
KP: They are drastically different. Virtually every issue discussed at January’s proceedings would never be an issue in federal court [the reviewing of attorney-client privileged mail, the prosecutions’ involvement in defense requests for witness funding, and the defense ability to challenge classified evidence]. Moreover, the timing is unheard of. Al-Nashiri has been in U.S. custody for 9 years, with charges filed against him only in the past few months. Under U.S. federal law, a 9-year detention without legal procedure would be unconstitutional, to say the least.
What are the conditions like in the camp?
I can’t really say – the only view we had of the camps was the “windshield view.” We drove past some of them in a van and our military escorts described what they are like. Notably, this is the first time that any NGO observers have even been driven past them.
Are conditions different for different detainees?
Yes – there are a few camps that are communal, where the detainees can roam freely throughout the common spaces and detainees’ cells. There is one camp for detainees who have had “disciplinary” problems, and presumably the conditions in that camp are very restrictive. No one knows what the conditions are like in Camp Seven.
What is ‘Camp Seven’?
Camp Seven is the camp holding the “high value detainees” – meaning al-Nashiri and the alleged 9/11 plotters. It is kept completely secret – it does not exist on maps, our military escorts at Guantanamo claimed to have no knowledge of where it is. They are so secretive about its location that even when we were given the opportunity to go up to “Windmill Hill”, which overlooks all of the base, our military escort made us leave after a couple minutes of us pointing at where Camp Seven could possibly be.