Washington, DC, United States – If James Connell’s entry to his consumer was not already restricted and his work was not world in scale, the lawyer’s adjustment to the brand new work-from-home actuality may need been simpler.
Though distance working will not be new for Connell, whose consumer will not be on the mainland United States, regardless that he’s in US custody, the hurdles he faces from the coronavirus require greater than merely organising distant methods like others have completed.
Regardless of the miles between Connell and his consumer, he wants his workplace greater than most. Deemed by the US authorities a Delicate Compartmented Info Facility, or SCIF, that workplace is the one place he can work with labeled supplies or talk along with his consumer.
That’s as a result of Connell represents Ammar al-Baluchi, considered one of 5 males held by the US at its detention camp in Guantanamo Bay, Cuba, who’re being tried for plotting al-Qaeda’s September 11, 2001 assaults that killed practically 3,000 Individuals.
Even throughout regular occasions, this case will not be regular. However with coronavirus-mandated restrictions, the work has develop into much more sophisticated.
“All preparation for the trial that involves the client has broken down,” Connell stated. “We have a heavy reliance on face-to-face contact.”
With the onset of COVID-19, the navy has prohibited virtually all official journey and instituted a compulsory telework coverage. But, Connell has by no means been allowed to name al-Baluchi; he’s solely permitted to see him in particular person or to ship and obtain mail over labeled networks from the workplace. He additionally now can’t entry case supplies on his workplace computer systems which have secret or above top-secret classifications.
Flaws within the system
To Harold Hongju Koh, Sterling Professor of Worldwide Regulation at Yale Regulation Faculty and authorized adviser of the US Division of State from 2009 to 2013, these difficulties exacerbated by the coronavirus expose longstanding flaws within the navy fee justice system.
“If you’re going to set up a system which makes it virtually impossible to travel and communicate,” he stated, “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 your entire Division of Protection (DOD), which has had 27 deaths from COVID-19 and greater than 8,000 circumstances of the virus. This features a much-publicised outbreak on the naval ship USS Theodore Roosevelt, whose captain was relieved of his command after a strongly worded electronic mail to his superiors in regards to the dire state of affairs 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, nonetheless, the DOD has refused to launch COVID-19 statistics at particular person bases. The navy issued tips that any guests to Guantanamo’s detention amenities should first quarantine for 14 days from arrival and bear a medical test.
The final 9/11 hearings had been held in late January and all subsequent units of hearings have been cancelled till a minimum of July, the newest because of the coronavirus. Mail communication with the shoppers continues to be allowed, and prosecutors proposed monitored video conferences between the detainees at Guantanamo’s courtroom and the attorneys on the warfare courtroom’s headquarters in Virginia.
However defence groups opposed the plan as a result of it might require the shoppers and attorneys to journey. The decide has requested the prosecution about alternate options that won’t require the defendants be moved from the jail.
“The coronavirus disease 2019 (COVID-19) continues to present a significant risk,” the navy physique accountable for overseeing the Guantanamo trials stated in a press release. “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.”
Investigating torture allegations
The restricted journey additionally means Connell’s workforce can’t take its regular discovery journeys to fulfill with witnesses around the globe as a part of their investigation into 9/11 and its aftermath, together with the CIA’s black website torture programme.
Whereas held at these black websites in US-allied nations from their 2002 or 2003 captures till their switch to Guantanamo in 2006, the defendants’ interrogations included waterboarding – 183 occasions 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 different ways which have left them with persistent bodily and psychological maladies.
However many particulars of CIA torture, termed “enhanced interrogation” by the George W Bush administration and outlawed by Barack Obama’s administration, stay labeled within the identify of nationwide safety.
Disputes over what proof can and can’t be used within the trials are a significant purpose why United States v Khalid Sheikh Mohammed, et al stays in pre-trial eight years after the accused had been arraigned. With the shadow of torture hanging over the proof and a singular authorized system designed to strive “unlawful enemy combatants” on the abroad base, the defence groups have come to anticipate newfound hurdles because 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 stated. “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.”
A distant justice system
Working a distant justice system generally is a logistical nightmare.
About one week every month for eight years, the defence and prosecution groups, plus journalists, NGO observers, victims’ relations, navy personnel and the decide, journey from everywhere in the US to board a single chartered plane from a navy base in Maryland to Guantanamo Bay.
With 41 units of hearings because the 2012 arraignment, these routine aeroplane gatherings in avenue garments have develop into chummy get-togethers earlier than those self same attorneys swimsuit up for courtroom within the following days – or put on navy uniforms, abayas, or different apparel within the distinctive courtroom.
Press and observers can watch open hearings on the courtroom from behind a soundproof glass display with a video feed broadcast on a 40-second delay that may be reduce if labeled info is mentioned, and infamously as soon as was in 2013 by an outdoor CIA observer, a lot to the decide’s chagrin.
Koh stated setting up this courtroom at Guantanamo to strive the detainees offshore below irregular procedures was the federal government’s unique mistake.
“Every single problem they’ve had has come from trying to reinvent the wheel,” he stated. “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 historical past with Guantanamo lengthy predates the so-called “War on Terror”. He led litigation in opposition to the US authorities detaining Haitian refugees there within the early 1990s and after 9/11 argued in opposition to holding terror suspects there indefinitely with out trial or making an attempt them on the offshore Naval base when Congress handed the Navy Commissions Act of 2006 “to authorise trial by military commission for violations of the law of war, and for other purposes”.
The final remaining detainees
The accused had been first arraigned below Bush in 2008, however the subsequent 12 months Obama took workplace and halted the case following his marketing campaign promise to shut the costly jail seen by many as a stain on the US’s picture. Koh was a part of the administration’s failed effort to observe via on this promise, one met by stiff resistance from a Congress against transferring terror suspects to federal jail on US soil, in addition to from some inside the Obama administration.
Below an up to date Navy Commissions Act of 2009 that prolonged due course of rights after features of the unique had been deemed unconstitutional by the US Supreme Court docket, the accused had been re-arraigned in Could 2012 within the case that continues in pre-trial in the present day. They’re 5 of the 40 detainees remaining at Guantanamo, down from the Bush-era peak of 677 in 2003. Some have severe medical circumstances after years of torture. Navy officers are, at this level, planning for detainees to develop outdated and die on the jail.
Guantanamo‘s detention funding has elevated below President Donald Trump, who pledged on the marketing campaign path to “load the prison up with bad dudes”. He has not despatched any extra prisoners to Guantanamo since taking workplace, although, and after a New York Instances report estimated the price per prisoner at Guantanamo to be $13m a 12 months, making it the costliest jail on this planet, Trump stated, “It prices a fortune to function, and I feel it‘s loopy”.
Though the 5 defendants are being tried collectively and every doubtlessly faces the dying penalty, the specifics of their alleged involvement in 9/11 differ, and every has his personal authorized workforce led by a government-assigned civilian capital defence specialist known as a realized counsel – Connell is considered one of them.
The defence groups will not be a monolith, every pursuing arguments particular to their consumer and never all the time becoming a member of each other’s motions. Mustafa al-Hawsawi’s authorized workforce, for instance, has argued their consumer has lesser involvement and ought to be severed from the case, a movement denied by the case’s unique decide.
Nonetheless, one space the place all 5 groups agree is that the principles of the sport seem stacked in opposition to them, with the federal government repeatedly making an attempt to intervene with their defence efforts and missing transparency.
Years of delays
Over time, delays and twists have develop into the norm on the warfare courtroom. There may be the uncontrollable, like hurricanes hitting Cuba or a prepare derailment reducing the web. Then there are logistical issues which have taken up a lot courtroom time, like whether or not feminine guards can contact the detainees or if the gradual, outdated laptop fashions defendants are given are enough.
However essentially the most severe delays have come from authorities efforts to intervene with the defence, like when government-planted listening gadgets had been present in attorney-client assembly rooms or when the FBI recruited an informant on a defence workforce. The outgoing decide not too long ago accepted in secret a direct communication line from the courtroom between the prosecution, which stopped talking on to the media in late 2017, and CIA observers.
Already, the hearings since January had been cancelled for non-coronavirus-related causes. One of many realized counsels, James Harrington, requested to be launched from the case attributable to well being issues, a extra sophisticated enterprise than in most authorized circumstances, given the safety clearances wanted, quantity of labeled materials dealt with, and lengthy case historical past for a brand new lawyer to be taught.
The navy decide, Air Drive Colonel W Shane Cohen, granted Harrington’s request, and a alternative had been appointed – David I Bruck, who represented Dylan Roof of the 2015 Charleston church taking pictures and Dzhokhar Tsarnaev of the 2013 Boston Marathon bombing – however then the decide abruptly stepped down himself, citing household causes.
Cohen is now the third decide to go away the case in lower than two years.
“When things go on for such a long time,” Koh stated, “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.”
Military Colonel Douglas Okay Watkins, the chief decide of all navy commissions, quickly assigned himself to the case as a caretaker, however the subsequent decide who is available in will now additionally must familiarise themselves with virtually a decade of case historical past, a lot of which is assessed, and greater 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 stated. “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.”
Conflict courtroom twists
This newest sequence of delays come at a important time within the case. On the final set of hearings in January, an architect of the CIA’s interrogation programme, the lynchpin round which so many different parts of the case revolve, testified for the primary time in entrance of the tortured defendants in regards to the black website interrogations that included unproven methods past these 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 speculated to return to the stand on the subsequent hearings, however now, it would seemingly be a minimum of 9 months between the final and subsequent 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 stated. “They may go and look up more information, they may think of different material, they may forget material.”
At dispute is whether or not testimonies the defendants gave to the FBI in 2007 months after they had been transferred from black websites to Guantanamo are additionally tainted by CIA torture. The defence groups say they’ve proof that the FBI and CIA labored collectively each on the black websites and at Guantanamo, and these confessions to FBI “clean teams”, who had been despatched in to acquire torture-free info that could possibly be utilized in a courtroom of legislation, can’t be thought of as if their shoppers had not already been tortured.
In yet one more warfare courtroom twist, the primary decide dominated earlier than retiring in 2018 that the prosecution couldn’t use FBI testimonies within the trial earlier than his successor requested the following 12 months that the ruling be reconsidered. He stepped down earlier than he-himself might decide, as did the third decide.
“This should have been a pretty straightforward case,” Koh stated, “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.”
A idiot’s errand
Cohen had set a trial date for January 2021, an bold declaration when introduced in mid-2019, and tried to effectively work his method via a big docket of pretrial filings. However that begin date has already been delayed to March, and now with Cohen’s retirement, Harrington’s launch, and COVID-19 delaying the case additional, a trial earlier than 2022 on the earliest, greater than twenty years after 9/11, seems unlikely.
Koh stated, nonetheless, that the federal government abandoning navy commissions nonetheless seems unlikely due to the monetary and resource-investment given to them over a interval of so a few years.
“These are the trials that have to prove that it was all worth it,” he stated. “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 at the moment going through its greatest worldwide disaster since 9/11. The coronavirus has uncovered many longstanding societal fault strains within the US and has brought about concepts as soon as thought of fringe to enter the mainstream.
Guantanamo Bay is in some ways emblematic of a bygone period. The offshore jail represents 9/11’s enduring maintain over the threats the US has seen on this planet, the unprecedented assets invested in terrorism-related safety, and the willingness to bend the rule of legislation in pursuit of desired ends. To Connell, now could be a time to reevaluate these outlooks.
“Guantanamo in many ways feels like a mistake of the past,” Connell stated, “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.”