Washington, DC, United States – If James Connell faced fewer restrictions accessing his client, and if his work did not span the globe, the lawyer’s adjustment to the new work-from-home reality might have been easier.
Although distance working is not new for Connell, whose client is not on the mainland United States, even though he is in US custody, the hurdles he faces from the coronavirus require more than merely setting up remote systems like others have done.
Despite the miles between Connell and his client, he needs his office more than most. Deemed by the US government a Sensitive Compartmented Information Facility, or SCIF, that office is the only place he can work with classified materials or communicate with his client.
That is because Connell represents Ammar al-Baluchi, one of five men held by the US at its detention camp in Guantanamo Bay, Cuba, who are being tried for plotting al-Qaeda’s September 11, 2001 attacks that killed nearly 3,000 Americans.
Even during normal times, this case is not normal. But with coronavirus-mandated restrictions, the work has become even more complicated.
“All preparation for the trial that involves the client has broken down,” Connell said. “We have a heavy reliance on face-to-face contact.”
With the onset of COVID-19, the military has prohibited almost all official travel and instituted a mandatory telework policy. Yet, Connell has never been allowed to call al-Baluchi; he is only permitted to see him in person or to send and receive mail over classified networks from the office. He also now cannot access case materials on his office computers that have secret or above top-secret classifications.
To Harold Hongju Koh, Sterling Professor of International Law at Yale Law School and legal adviser of the US Department of State from 2009 to 2013, these difficulties exacerbated by the coronavirus expose longstanding flaws in the military commission justice system.
“If you’re going to set up a system which makes it virtually impossible to travel and communicate,” he said, “then, it’s going to break down and it’s not going to be able to achieve speedy outcomes, and it’s not going to be able to achieve justice. And as time has gone on, it’s repeatedly broken down. Now, with the coronavirus, you have a breakdown of both transportation and communication.”
The coronavirus has restricted the operations of the entire Department of Defense (DOD), which has had 27 deaths from COVID-19 and more than 8,000 cases of the virus. This includes a much-publicised outbreak on the naval ship USS Theodore Roosevelt, whose captain was relieved of his command after a strongly worded email to his superiors about the dire situation onboard the 5,000-crewmember ship was leaked to the press.
On March 24, Naval Station Guantanamo Bay reported its first coronavirus case. Since April, however, the DOD has refused to release COVID-19 statistics at individual bases. The military issued guidelines that any visitors to Guantanamo’s detention facilities must first quarantine for 14 days from arrival and undergo a medical check.
The last 9/11 hearings were held in late January and all subsequent sets of hearings have been cancelled until at least July, the latest due to the coronavirus. Mail communication with the clients is still allowed, and prosecutors proposed monitored video meetings between the detainees at Guantanamo’s courtroom and the lawyers at the war court’s headquarters in Virginia.
But defence teams opposed the plan because it would require the clients and lawyers to travel. The judge has asked the prosecution about alternatives that will not require the defendants be moved from the prison.
“The coronavirus disease 2019 (COVID-19) continues to present a significant risk,” the military body responsible for overseeing the Guantanamo trials said in a statement. “Personnel safety remains paramount, and the Office of the Convening Authority continues to adhere to a strict mandatory telework policy. The Office of the Convening Authority remains committed to its mission of conducting full and fair trials by military commissions, while protecting national security interests.”
The restricted travel also means Connell’s team cannot take its usual discovery trips to meet with witnesses around the world as part of their investigation into 9/11 and its aftermath, including the CIA’s black site torture programme.
While held at these black sites in US-allied countries from their 2002 or 2003 captures until their transfer to Guantanamo in 2006, the defendants’ interrogations included waterboarding – 183 times for Khalid Sheikh Mohammed, the alleged mastermind of 9/11 – rectal feeding and rehydration, wall-slamming, sleep deprivation, solitary confinement, and being hung nude from the ceiling, and other tactics that have left them with chronic physical and psychological maladies.
But many details of CIA torture, termed “enhanced interrogation” by the George W Bush administration and outlawed by Barack Obama’s administration, remain classified in the name of national security.
Disputes over what evidence can and cannot be used in the trials are a major reason why United States v Khalid Sheikh Mohammed, et al remains in pre-trial eight years after the accused were arraigned. With the shadow of torture hanging over the evidence and a singular legal system designed to try “unlawful enemy combatants” at the overseas base, the defence teams have come to expect newfound hurdles as the norm.
“The fact that these trials are taking place at an overseas military base and require routine airlift means that they’re very vulnerable to disruption,” Connell said. “Trying to run a justice system remotely is very difficult, and over the years, we’ve had a wide variety of external disruptions. While COVID-19 is not just another intrusion on the process, we have become used to the vulnerability of the military commissions.”
Operating a remote justice system can be a logistical nightmare.
About one week each month for eight years, the defence and prosecution teams, plus journalists, NGO observers, victims’ family members, military personnel and the judge, travel from all over the US to board a single chartered aircraft from a military base in Maryland to Guantanamo Bay.
With 41 sets of hearings since the 2012 arraignment, these routine aeroplane gatherings in street clothes have become chummy get-togethers before those same lawyers suit up for court in the following days – or wear military uniforms, abayas, or other attire in the unique courtroom.
Press and observers can watch open hearings at the courtroom from behind a soundproof glass screen with a video feed broadcast on a 40-second delay that can be cut if classified information is discussed, and infamously once was in 2013 by an outside CIA observer, much to the judge’s chagrin.
Koh said constructing this courtroom at Guantanamo to try the detainees offshore under irregular procedures was the government’s original mistake.
“Every single problem they’ve had has come from trying to reinvent the wheel,” he said. “And 90 percent of the problems seem to arise from two things – over-classification and the notion that traditional rules of confidentiality somehow don’t apply because these are national security cases.”
Koh’s history with Guantanamo long predates the so-called “War on Terror”. He led litigation against the US government detaining Haitian refugees there in the early 1990s and after 9/11 argued against holding terror suspects there indefinitely without trial or trying them at the offshore Naval base when Congress passed the Military Commissions Act of 2006 “to authorise trial by military commission for violations of the law of war, and for other purposes”.
The accused were first arraigned under Bush in 2008, but the next year Obama took office and halted the case following his campaign promise to close the expensive prison seen by many as a stain on the US’s image. Koh was part of the administration’s failed effort to follow through on this promise, one met by stiff resistance from a Congress opposed to transferring terror suspects to federal prison on US soil, as well as from some within the Obama administration.
Under an updated Military Commissions Act of 2009 that extended due process rights after aspects of the original were deemed unconstitutional by the US Supreme Court, the accused were re-arraigned in May 2012 in the case that continues in pre-trial today. They are five of the 40 detainees remaining at Guantanamo, down from the Bush-era peak of 677 in 2003. Some have serious medical conditions after years of torture. Military officials are, at this point, making plans for detainees to grow old and die at the prison.
Guantanamo‘s detention funding has increased under President Donald Trump, who pledged on the campaign trail to “load the prison up with bad dudes”. He has not sent any more prisoners to Guantanamo since taking office, though, and after a New York Times report estimated the cost per prisoner at Guantanamo to be $13m a year, making it the most expensive prison in the world, Trump said, “It costs a fortune to operate, and I think it‘s crazy”.
Although the five defendants are being tried together and each potentially faces the death penalty, the specifics of their alleged involvement in 9/11 differ, and each has his own legal team led by a government-assigned civilian capital defence specialist called a learned counsel – Connell is one of them.
The defence teams are not a monolith, each pursuing arguments specific to their client and not always joining one another’s motions. Mustafa al-Hawsawi’s legal team, for example, has argued their client has lesser involvement and should be severed from the case, a motion denied by the case’s original judge.
However, one area where all five teams agree is that the rules of the game appear stacked against them, with the government repeatedly trying to interfere with their defence efforts and lacking transparency.
Over the years, delays and twists have become the norm at the war court. There is the uncontrollable, like hurricanes hitting Cuba or a train derailment cutting the internet. Then there are logistical matters that have taken up much courtroom time, like whether female guards can touch the detainees or if the slow, outdated computer models defendants are given are sufficient.
But the most serious delays have come from government efforts to interfere with the defence, like when government-planted listening devices were found in attorney-client meeting rooms or when the FBI recruited an informant on a defence team. The outgoing judge recently approved in secret a direct communication line from the courtroom between the prosecution, which stopped speaking directly to the media in late 2017, and CIA observers.
Already, the hearings since January had been cancelled for non-coronavirus-related reasons. One of the learned counsels, James Harrington, requested to be released from the case due to health concerns, a more complicated undertaking than in most legal cases, given the security clearances needed, amount of classified material handled, and long case history for a new lawyer to learn.
The military judge, Air Force Colonel W Shane Cohen, granted Harrington’s request, and a replacement had been appointed – David I Bruck, who represented Dylan Roof of the 2015 Charleston church shooting and Dzhokhar Tsarnaev of the 2013 Boston Marathon bombing – but then the judge suddenly stepped down himself, citing family reasons.
Cohen is now the third judge to leave the case in less than two years.
“When things go on for such a long time,” Koh said, “people haven’t made plans to see things through to the end. They start leaving, and then you have to replace them. It’s a fiasco, but it was an utterly predictable fiasco.”
Army Colonel Douglas K Watkins, the chief judge of all military commissions, temporarily assigned himself to the case as a caretaker, but the next judge who comes in will now also have to familiarise themselves with almost a decade of case history, much of which is classified, and more than 30,000 pages of transcripts.
“I don’t know how anyone could pick up this many pages of transcript and make sense of it in any reasonable amount of time,” Connell said. “A lot of the strategies that we were pursuing were based on statements or comments that Judge Cohen made, and we structured our presentation to give him more information about subjects. Now, we’re going to have to start all over with that education process for the judge, as well as reorienting the process for what the new judge wants to know about.”
This latest series of delays come at a critical time in the case. At the last set of hearings in January, an architect of the CIA’s interrogation programme, the lynchpin around which so many other elements of the case revolve, testified for the first time in front of the tortured defendants about the black site interrogations that included unproven techniques beyond those authorised by the Bush administration.
That psychologist who co-designed the programme as a contractor for the CIA, Dr James E Mitchell, spoke of personally waterboarding Mohammed and conditionally threatening to “cut your son’s throat”, who had reportedly been captured by Pakistani intelligence.
Mitchell and his co-architect, Dr John Bruce Jessen, are supposed to return to the stand at the next hearings, but now, it will likely be at least nine months between the last and next testimonies.
“Clearly, they are in a different position with a long gap in the middle of their testimony than they would be in just simply testifying,” Connell said. “They may go and look up more information, they may think of different material, they may forget material.”
At dispute is whether testimonies the defendants gave to the FBI in 2007 months after they were transferred from black sites to Guantanamo are also tainted by CIA torture. The defence teams say they have evidence that the FBI and CIA worked together both at the black sites and at Guantanamo, and these confessions to FBI “clean teams”, who were sent in to obtain torture-free information that could be used in a court of law, cannot be considered as if their clients had not already been tortured.
In yet another war court twist, the first judge ruled before retiring in 2018 that the prosecution could not use FBI testimonies in the trial before his successor asked the next year that the ruling be reconsidered. He stepped down before he-himself could make a decision, as did the third judge.
“This should have been a pretty straightforward case,” Koh said, “but it was corrupted by pointless torture. But even if this justice system succeeded in convicting them, why on earth would anybody in the outside world consider that credible justice? If the Chinese started holding people offshore in maximum-security prisons, and the Russians did that, we would be the first to object.”
Cohen had set a trial date for January 2021, an ambitious declaration when announced in mid-2019, and tried to efficiently work his way through a large docket of pretrial filings. But that start date has already been delayed to March, and now with Cohen’s retirement, Harrington’s release, and COVID-19 delaying the case further, a trial before 2022 at the earliest, more than two decades after 9/11, appears unlikely.
Koh said, however, that the government abandoning military commissions still appears unlikely because of the financial and resource-investment given to them over a period of so many years.
“These are the trials that have to prove that it was all worth it,” he said. “So, there’s increasing unwillingness to abandon these cases, because they would just prove that we were all on a fools’ errand.”
With COVID-19, the US is currently facing its biggest international crisis since 9/11. The coronavirus has exposed many longstanding societal fault lines in the US and has caused ideas once considered fringe to enter the mainstream.
Guantanamo Bay is in many ways emblematic of a bygone era. The offshore prison represents 9/11’s enduring hold over the threats the US has seen in the world, the unprecedented resources invested in terrorism-related security, and the willingness to bend the rule of law in pursuit of desired ends. To Connell, now is a time to reevaluate these outlooks.
“Guantanamo in many ways feels like a mistake of the past,” Connell said, “although the consequences of it persist in the present. It seems like an excellent time to reorient US policy to the new threats that the United States faces instead of continuing with the mistakes of the past.”