What Happens to Justice in a Perpetual War?

The 9/11 trial limps forward at Guantanamo Bay

A courtroom sketch of Khalid Sheik Mohammed.
JANET HAMLIN/AFP/GettyImages
A courtroom sketch of self-proclaimed 9/11 mastermind Khalid Sheik Mohammed.
By |

I.

Emma Barker-Lasar is 19 years old. She attends community college in central New Jersey and works part-time for minimum wage at a Goodwill, but needs another job because she can't get scheduled for more than 29 hours a week. She was seven years old on September 11th, 2001, the day her great-uncle Abraham died at the World Trade Center. She still remembers being spirited out of school and back home to watch the morning's tragic events play out. "I was really mad, because I had just started eating some popcorn and I had to throw it out," she remembers with a quiet laugh, sitting at a picnic table a quarter-mile from the military courtroom at Guantanamo Bay, Cuba.  Her parents sat her in front of the TV that day and told her, "This is what's going on right now, and we wanted to have you here with us."

Earlier this month, Barker-Lasar travelled to Guantanamo with her grandmother, Rita (Abraham's older sister), to witness the early stages of the trial of five accused 9/11 plotters firsthand. They're both peace activists – members of a group called 9/11 Families for Peaceful Tomorrows. "Mostly, I wanted to be here to see where it is that we're trying these men, what kind of a court we're using," she says. She pushes her hair back absent-mindedly and reveals a tattoo of the outline of New Jersey behind her left ear. "And to be perfectly honest, I don't agree with how we're doing it."

II.

There is no date set for the 9/11 trial to begin. While the latest round of pre-trial proceedings covered many topics, one major theme emerged: According to defense attorneys, restrictive governmental policies have made representation of their clients impossible. Over five days in late June, defense lawyers questioned three former Guantanamo officials – two Admirals and a high-ranking Navy lawyer and legal advisor, called a staff judge advocate (SJA) – in an attempt to show that their orders violated attorney/client privilege, rushed death penalty charges and interfered with the development of trial strategies.

At the heart of these issues was an October 2011 seizure and subsequent search of legal bins that belonged to the five defendants. The seizure was prompted in part by Navy defense attorney Walter Ruiz's attempt to send his client, Mustafa al Hawsawi, an issue of the al Qaeda magazine Inspire, without explicitly marking it as attorney/client material. The magazine – which included a now-notorious article titled "How to build a bomb in the kitchen of your mom" – was categorized as contraband and never made it to the ultra-secretive Camp 7, where the 9/11 defendants and other high-value detainees are held.

Why was a magazine considered contraband? David Nevin, the defense attorney for self-proclaimed 9/11 mastermind Khalid Sheik Mohammed, pressed Navy Captain Thomas Welsh, the SJA, on whether the bomb-making items listed in the article were available to detainees in Camp 7. Welsh acknowledged that they most likely were not. Another defense attorney, Jim Harrington, argued the article could be relevant for developing a legal strategy. "Suppose the case is about making bombs," a visibly exasperated Harrington asked Welsh.

The October 2011 seizure was followed by a December 27th, 2011 order issued by Rear Admiral David Woods, the Guantanamo prison commander at the time. That order, which the CIA had a role in drafting, defined "historical perspectives or discussions on jihadist activity" as contraband, and also created a so-called privilege team to review content being sent to detainees. The chief Guantanamo defense attorney at the time, Marine Colonel Jeffrey Colwell, responded by telling his lawyers to stop sending written communication to their clients.

Attorneys also argued that they were hampered in their ability to argue against their clients having to face execution. At Guantanamo's military court, a commander known as a convening authority determines whether the death penalty will apply to a given case. Defense attorneys can file papers arguing that their clients should be punished with life in prison instead of being put to death, based on factors including the defendants' personal history and their pre-trial confinement conditions, which in some cases included torture.

The convening authority in the 9/11 trial is retired Vice Admiral Bruce MacDonald, who instituted a 60-day deadline to file these papers after the final member of the defense team received security clearance. Each defense team argued that this wasn't nearly enough time. Defense attorney James Connell was the only one of the five teams to file a submission under the deadline – which he said was rushed and incomplete. Nonetheless, Admiral MacDonald referred to it in testimony as "excellent," and said it made him think long and hard about whether the case should be capital or not.

Connell says he pressed the Admiral on this point in an effort to get him to say it wasn't a foregone conclusion that this would be a death penalty case. "What we learned was that whether we had time, whether we had the ability to talk to the client, whether we had resources mattered," he says. "Because he might have made a different decision."

Over the course of the week, one defense team also introduced a motion to compel the International Committee of the Red Cross to turn over information about their client's treatment while in CIA custody and at Guantanamo. The ICRC objected to the move, saying it would destroy their unique worldwide mandate to conduct confidential investigations in conflict zones.

III.

Every aspect of Guantanamo Bay is about control of information – from the high-tech courtroom with its delayed media feed, to the secretive prisons, to the location itself. The reflexive secrecy is sometimes petty, like when a member of the guard force last week confiscated the stadium glasses the sketch artist had been using for three years ("no ocular enhancement"), or when a guard told the reporter from Germany's Der Spiegel that his crude scribble of the courtroom layout was classified. The drawing was later returned with "Confiscated 17 June 2013" and initials scrawled at the bottom.

At other times, issues regarding secrecy and openness are foundational – as illustrated by the total breakdown in proceedings when defense attorney Commander Walter Ruiz questioned former prison commander Admiral Woods about the CIA's role in determining a process to search attorney/client communications, and in intelligence gathering on the island generally. "[One of] the entities on the island at the time that you were the commander would have included the CIA, correct?" Ruiz asked. Joanna Baltes, a civilian prosecutor who specializes in handling classified information, immediately objected on the grounds of relevance. "Is that the real basis?" asked the military judge, Army Col. James Pohl – hinting that the real reason was the prospect of sensitive information being discussed in open court.

Ruiz, Baltes and another prosecutor had a brief, inaudible meeting in the middle of the courtroom, something like a huddle on the pitcher's mound in a baseball game. During the mini-conference, a prosecutor reportedly whispered to Ruiz, "You're playing with fire." Minutes later, Ruiz said, "I will not be threatened by the prosecution." Ruiz said this prosecutor later apologized; Brigadier General Mark Martins, the lead prosecutor, characterized the remark by a member of his team as a "genuine caution."

Ruiz had previously spoken with several members of the press about his single greatest complaint about the military commissions: By offering a rigorous and adversarial defense in this trial, he worries that he is giving this process an undeserved veneer of fairness. "Probably the most offensive thing," he said, "is at the end of the day, I may be the biggest legitimizer of this system."

IV.

Martins is the sixth lead prosecutor at Guantanamo Bay, and the individual tasked with convincing the country and the world that the controversial military commissions system updated by Congress in 2009 is in fact legitimate. Martins understands better than anyone that success in this goal is at least partially about public perception, and perception is about controlling information. He makes himself accessible to the press, but keeps his answers narrow and on-message.

What has the biggest surprise been since taking on this role? "I don't get surprised easily," says Martins. In October, a reporter asked about his feelings on that week's proceedings. "I don't tend to experience highs and lows in litigation," he said. (He has also shown a dry sense of humor from time to time. When Admiral Woods characterized admirals as being like generals, only better, Martins – himself an Army general – replied, "Objection, your honor.")

Perhaps it isn't surprising if General Martins and his team seem to be obsessed with secrecy. After all, that obsession isn't limited to them – it's a government-wide phenomenon. McClatchy recently revealed an Obama administration program called Insider Threat Program, an anti-leak initiative that directly equates disclosing information to reporters with espionage. The land-line phones in the press room at Guantanamo say "use of this telephone constitutes consent to monitoring"; but the secret NSA surveillance programs revealed by leaker Edward Snowden suggest that the differences between here and the mainland are more a matter of degree than category.

The mad logic of Guantanamo and the modern surveillance state both rest on a common foundation: The U.S. government's ongoing commitment to an endless state of war. Talking about this with a young person like Emma Barker-Lasar can be revealing. Asked if she feels like she has grown up during wartime, she hesitates. "It feels like something else," says Barker-Lasar. "We're obviously at war. But we're so far away from it, we're totally detached."

Just this month, a U.S. drone strike in Yemen killed a 10-year-old boy – about the same age Emma was when her great-uncle died on 9/11. When will it end? A top Department of Defense official who testified recently before the Senate Armed Services committee predicted that the war against al Qaeda and its associates could last another 20 years. By then, Emma Barker-Lasar will be almost 40 years old.

x