It sounds like a scene from a spy thriller: two defense attorneys waiting to meet with their client suspect that the CIA is spying on them. They stand on their chairs, examine the smoke detector on the ceiling, and copy down the name of the manufacturer: “Louroe Electronics.” They Google the name and discover it is not the name of a company that makes smoke detectors. It is the name of a company that makes listening devices that look like smoke detectors.
This is the story recounted by Learned Counsel Cheryl Bormann and Air Force Captain Michael Schwartz, two of the attorneys for Walid bin Attash—one of the five accused in the trial for the alleged 9/11 plotters. The government subsequently acknowledged the existence of the listening devices and removed the wiring inside of them.
This week, the Military Commission at Guantanamo Bay (GTMO) was scheduled to hold two days of pre-trial hearings on interference by another government agency—the FBI’s secret investigations into members of the defense teams. The hearings were intended to cover issues related to the effect of these investigations, including whether they had resulted in a conflict of interest between Learned Counsel James Harrington and his client, Ramzi bin al Shibh. Bin al Shibh and some of his co-defendants—including accused mastermind of the 9/11 attacks, Khalid Sheikh Mohammed—were heavily featured in the 524 page Executive Summary of the Senate Intelligence Committee’s Torture Report, released last week.
The report states that despite assessments that bin al Shibh was cooperating, the CIA still sent him to a black site where he was subjected to “enhanced interrogation techniques” and ultimately provided no valuable information. According to the report, Mohammed was (among other things) repeatedly waterboarded, kept awake for seven and a half days—most of it standing—and subjected to the now infamous “rectal rehydration.” Another of the defendants, Mustafa al Hawsawi, was also subjected to rectal rehydration, which resulted in “an anal fissure, and symptomatic rectal prolapse.” When he attends hearings, Hawsawi sits on a pillow.
But the hearings never happened. The first day was cancelled ostensibly so that the prosecution and defense could meet privately to resolve outstanding matters regarding the conflict of interest issue. Then at 4:30 on Monday afternoon observers were informed that that the second day of hearings had also been cancelled. This happened after we flew down to GTMO with a planeload of press, attorneys, and others involved in the case—at a cost of just under $90,000 each way, according to Officer in Charge of the Office of Military Commissions, John Imhof.
All meetings between the judge, Army Col. James L. Pohl, the prosecution, and the defense were confidential, so the reason for the hearings’ cancellation is not immediately clear. When asked if he felt anything had been resolved during the two days, one of bin al Shibh’s attorneys, Navy Lt. Cmdr. Kevin Bogucki, just shook his head and said “No.”
The 9/11 case has been mired in pre-trial hearings since April 2012—even before issues of secret FBI investigations and CIA spying arose. The Military Commissions system is untested and as such, every issue is litigated and must be ruled on by a judge. This is contrary to Federal Court, where there are clear procedural rules, which are simply enforced—not argued, deliberated on, and ruled on. It was in Federal Court in March of this year that Suleiman Abu Ghaith, Osama bin Laden’s son-in-law, was convicted of terrorism-related offenses, only one year after his capture. Abu Ghaith was subsequently sentenced to life in prison in September 2014.
Ironically, Federal Court is also where the 9/11 defendants were once set to be tried, before Congress passed legislation in 2010, prohibiting the transfer of GTMO detainees to the United States for any purpose. Now the attorneys for the 9/11 defendants are generally in agreement that their Military Commission trial is unlikely to begin until 2018.
The snail’s pace of these Military Commissions cannot be what the families of the 9/11 victims had envisioned. It is perhaps no coincidence that no family members were flown down to GTMO for these hearings, either due to the hearings’ anticipated cancellation or because even if the hearings had taken place, they would hardly have served as a good advertisement for either the Military Commissions themselves or the government’s conduct.
When I first got to GTMO and began speaking with those involved in the case, the overwhelming feeling I got was one of frustration. As I left, it was one of sadness. This is not swift justice. This is a protracted, exhausting, and disappointing process, with no end in sight. As Learned Counsel James Harrington said, “This is not what America is about.”