By Josh White
Washington Post Staff Writer
Tuesday, May 6, 2008
GUANTANAMO BAY, Cuba -- At the end of a tattered, sunbaked runway dotted with large green tents here is a building aptly called the Expeditionary Legal Complex Courtroom, surrounded by coils of concertina wire, where the most notorious alleged terrorists in U.S. custody are supposed to face charges related to the Sept. 11, 2001, attacks.
Nearly seven years later, however, not one of the approximately 775 terrorism suspects who have been held on this island has faced a jury trial inside the new complex, and U.S. officials think it is highly unlikely that any of the Sept. 11 suspects will before the Bush administration ends.
Though men such as Khalid Sheik Mohammed, the alleged Sept. 11 mastermind, are expected to be arraigned in coming months -- appearing publicly for the first time after years of secret detention and harsh interrogations -- officials say it could be a year or longer before worldwide audiences will see even the first piece of evidence or testimony against them.
"I think it's a near-impossibility that these cases will be in court before the end of the administration," said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, who has observed numerous court hearings on the island.
"Some of the detainees haven't even seen their lawyers yet, there's incredibly complicated issues about access to evidence and discovery, and as we've seen with every single case to date, it's incredibly hard to move through a system that lacks established rules and precedent," she said. "Every little detail ends up being contested, because it's an entirely new system of justice."
That new system, set up by Congress's Military Commissions Act of 2006, so far has been entangled by numerous motions that challenge its fairness and constitutionality. Military officers presiding over the cases have had to make critical decisions on the fly, including some appealed to another new court created by the same legislation.
Although defense officials have said they want to start the Sept. 11 trials before the Bush administration ends -- and one high-ranking Pentagon officer has been quoted talking about the "strategic political value" of doing so before the November elections -- those involved privately agree that opening statements could be a year or more away.
Lawyers for some of the detainees jointly charged in the 2001 attacks say they are going to have to navigate an unprecedented volume of classified evidence and complex legal issues, and to mount a defense against the death penalty -- all matters that have not been adjudicated in earlier detainee cases.
Susan Crawford, who supervises the military commissions process, has not yet even formally referred the Sept. 11 cases to trial, although arraignments could occur a month or so later.
Air Force Brig. Gen. Thomas Hartmann, the top legal authority in the Pentagon's Office of Military Commissions, said: "Assuming it's referred, I expect there to be vigorous litigation by the defense community and the prosecution community." He declined to speculate how long it might take but said: "It will be helpful to the process for there to be a litigated case."
Since the U.S. detention facility on this southeastern corner of Cuba opened in January 2002, only one military commission has reached a verdict, when Australian David Hicks pleaded guilty to terrorism charges in March 2007. It was part of a politically orchestrated deal that returned Hicks to his home country to serve out his sentence. He was released Dec. 29.
None of the other 14 Guantanamo Bay detainees charged with crimes, including the six alleged Sept. 11 co-conspirators, has seen a courtroom for anything other than arraignments or legal motions.
The comparable figures in traditional U.S. criminal courts are less clear-cut, because the Justice Department has come under wide criticism for claiming terrorism-related convictions in cases that actually turn on immigration or other violations. But the Center on Law and Security at the New York University School of Law has identified Justice Department charges against 202 people in connection with terrorism offenses since Sept. 11, 2001, and finished trials for 116. Of those, 80 were convicted, the center said.
Notably, Zacarias Moussaoui was convicted in a U.S. District Court in Alexandria in May 2006 for links to the Sept. 11 plot and is now serving a life sentence in a Colorado supermax prison, a case that defense lawyers and human rights activists say is proof that such cases can, and should, be tried in U.S. criminal courts rather than by military commissions. They decry the military rules that allow coerced statements and hearsay into evidence and say there is no way the cases can be opened to the scrutiny they deserve.
"This is a self-inflicted wound," said Michael Berrigan, deputy chief defense counsel for the military commissions and a former longtime Army lawyer. "It's a sad day in the history of this republic when we have abandoned the rule of law."
Col. Lawrence Morris, the chief prosecutor for military commissions, said to the contrary that different rules are required for "enemy fighters" captured on a battlefield -- where evidence is collected under different procedures -- than ordinary criminal defendants. Even the interrogations of such detainees are focused more on gathering "wartime intelligence, not . . . criminal prosecution," he said.
Authorities here had hoped that the first full military commission case, against Salim Ahmed Hamdan, a Yemeni who was an alleged driver for Osama bin Laden, would proceed smoothly. It is now scheduled to begin June 2. But last week Hamdan became the latest detainee to boycott the process, arguing that he wants no part in the military commissions because they do not reflect American justice.
In a 40-minute exchange with Navy Capt. Keith J. Allred, who is presiding over the case, Hamdan said that he would do anything to get into a regular American courtroom and that the military commissions process is a sham designed to trap him at Guantanamo Bay. He said his victory in a 2006 Supreme Court case, which forced the government to rewrite the rules for military commissions, was hollow because he has been incarcerated for seven years without any change in his conditions.
"I would like the law, I would like justice. Nothing else," Hamdan said.
Hartmann, who colleagues say has been trying to accelerate the process, responded that "the trials are not going to be held up because an accused exercises his right not to be present." He said that defendants have the right to waive their presence at the hearings and that it is up to them to choose. He also said the military commissions system affords defendants "astounding" rights that in some cases exceed the rights received by members of the U.S. military who are tried at courts-martial.
But Daskal of Human Rights Watch said trials without defendants present "would be a disaster" and the "last thing America needs" because of existing perceptions of unfairness in the process.
Hamdan's motions hearings have highlighted concerns that are likely to arise before all the military commissions, including whether rules allow defense attorneys to adequately represent their clients and gain access to government evidence. Even the interpreting at last week's hearing was fraught with technical difficulties, delaying the proceedings.
Berrigan testified last week that military defense teams do not yet have an appropriate secure facility to use in representing clients such as Mohammed, the alleged Sept. 11 mastermind, whose conversations are classified at the highest level of secrecy. The installation of secure computers at the teams' Virginia office is still underway, and defense attorneys must carefully isolate their classified conversations about different clients because of potential legal conflicts.
Navy Lt. Cmdr. Brian Mizer, who represents Hamdan and alleged Sept. 11 co-conspirator Ali Abdul Aziz Ali, said he thinks Ali's case will take a long time to get to court.
"The arraignment was a year ago in Hamdan, and there is very little classified information," he said. "Ali's case is going to involve dozens of wire transfers, witnesses from various locations around the world, and you add that the death penalty may be sought. I realistically do not think these cases can be rushed to trial."
When they do start, the trials will be only partially open.
Hamdan's hearings partly involved transcripts of conversations that two prosecutors had with investigators for the Defense Department's Office of Inspector General, but military defense attorneys were allowed only to read the documents and were barred from copying them. News reporters who asked the court for copies of the unclassified documents were denied access.
A plexiglass wall and a delayed audio transmission in the new high-security courtroom will keep reporters and observers separated from the proceedings, a measure meant to allow officials to censor classified information. Mizer said it is possible that observers will not hear much of what the high-value detainees say, if they choose to speak.
Hartmann said that within the military commissions process, "the principal obligation is not to the press," and that the cases are full, fair and open because of the rights afforded to the defendants. "That's what we do in the American system of justice," he said.
Staff researcher Julie Tate in Washington contributed to this report.