We wanted to find out more about what this might mean for the future – and to examine claims that a CIA programme of torture and kidnap following the 9/11 atrocities is impeding a quest for justice.
Five men accused of involvement in the 9/11 attacks face death penalty trials in “military commissions” proceedings at a secret multimillion-dollar legal complex at Guantanamo, set up to try captives in the US “war on terror“.
But seventeen years after the worst attack on US soil these cases have yet to be heard.
On arrival at Guantanamo journalists and NGOs are billeted in tents at Camp Justice.
Inside this compound, the legal complex is so secret we couldn’t film it, nor reveal its location. Indeed, to make this visit we had to sign a long document agreeing to restrictions. We were accompanied by a military minder at the base who vetted our footage at the end of each day.
We could, however, observe legal proceedings under strict conditions, in a specially constructed gallery separated from the court by soundproof glass. To hear what was happening, we watched a monitor on a 40-second delay, designed to prevent any inadvertent leak of classified information. When classified information is discussed, the court is closed to the public.
There is no time limit placed on the process, which is geared toward fairness, rather than an arbitrary deadline.
As the week at Camp Justice unfolded, defence lawyers described their frustrations. One of the allegations being that pre-trial hearings have become mired in arguments about what classified information they’re allowed to see. In particular, evidence from the post 9/11 programme of so-called “enhanced interrogation”.
James Connell represents Ammar al-Baluchi, accused of helping to supply funding to the 9/11 hijackers. Connell’s claim that “strict controls” on the legal process at Guantanamo are designed to “prevent information about torture getting out to the public.”
The view of Lieutenant Colonel Derek Poteet, a defence lawyer representing the alleged mastermind of 9/11, Khalid Shaikh Mohammed – that the US Government was “trying to hide so very much” leading to an “interminable delay” in the 9/11 cases coming to trial.
The US Government invites relatives of the victims of 9/11 to attend open sessions of the military court hearings through a ballot system. We spoke to a group who had made the journey to Guantanamo to observe a 30th pre-trial hearing this July. There were a range of opinions, some expressing pride in the process, but there was genuine concern from several about the prospect of the death penalty in the cases. One suggestion – that a plea bargain, in exchange for dropping the death penalty, might speed up the proceedings, and lead to closure.
For their part, the US Department of Defence told us that they strove to ensure the process is “as transparent as possible when balanced with requirements of national security,” and that “there is no time limit placed on the process, which is geared toward fairness, rather than an arbitrary deadline”.
The future of Gitmo
Away from the secret court, a whistle-stop military tour took us to the exterior of Camp 6 where most remaining prisoners are held. So-called high-value detainees are imprisoned in Camp 7, a prison we weren’t allowed to film, its location a state secret.
We tried to elicit information about the future from spokesperson, Commander Anne Leanos. There were hopes, she said, of constructing a new prison, Camp 8 which would update facilities for an “ageing high-value detainee population.” Given a “new direction” they were also now preparing for “an enduring mission”.
We asked her what she made of her commander in chief’s stated views that “torture works”. She said she couldn’t comment.
The nature of the “enduring mission” at Guantanamo and President Trump’s vow to “load it up” may remain a matter for the future. But of particular consequence to some still held here is another of President Trump’s vows.
In January 2017, as president-elect, Trump tweeted that there should be “no more releases from GITMO”.
And this was ominous news for five prisoners, cleared for release under President Obama.
Cleared but still jailed
We travelled to Morocco to meet the family of one of those men, still held on the US Naval base.
Abdul Latif Nasser’s lawyers say he was sold for a bounty and imprisoned in Guantanamo in 2002. The US said he had links with extremists, but no charges were ever brought. Then, in 2016 his case was heard by a Guantanamo Periodic Review Board, a body containing representatives from six US agencies, including the Department of Defence. They cleared him for release, but after bureaucratic delays, he remains, to this day, imprisoned.
Mustafa Nasser, Abdul Latif’s Uncle, told us how sixteen years on the family still hope for his return, a home waiting for him in Casablanca.
In London, we met Clive Stafford Smith whose organisation Reprieve has represented 80 prisoners released from Guantanamo.
When it comes to those cleared for release, but still jailed under Trump, his contention: “They’re not letting anyone go, for purely political reasons.”
Torture and the Future
The US Department of Defence did not reply to our questions about the process at Guantanamo, whereby prisoners cleared for release, might now be freed. The White House also declined to explain President Trump’s views on torture.
For critics though, President Trump’s stated view that “torture works” makes it even more vital that warnings are sounded about the future.
“If you don’t know what history is, you’ll repeat mistakes,” says Clive Stafford Smith. “We have someone in the White House right now who is liable to repeat any mistake.
“We need the truth out there.”
Editor’s note: The filmmakers with like to thank researcher Manon Joly for her contribution to this documentary.