A sculpture of José Antonio Elvira to protest about the situation in the nearby Guantanamo prisoner, 2005 camps.Wikicommons/Zosimo.Some rights reserved.Five men
stand accused for planning the terrorist attacks on 11 September 2001 when
al-Qaeda hijacked four planes and crashed them down into the west's collective
memory. Nearly 3,000 people were killed that day. In its wake followed what we
now refer to as the Global War on Terror, with US-initiated military
interventions in Afghanistan and Iraq, and other territories outside bounded
and conventional theatres of warfare.
Since the
first prisoners arrived in January 2002, the detention camp at Guantánamo has
become a frightening symbol of this War on Terror. It is believed that at least
780 people from 40 different countries have been transported to and held in
detention at the US naval base in Cuba. At the intersection of Cuban
sovereignty and American territorial control, Guantánamo Bay operates in legal
grey areas where endangered iguanas are better protected by US law than its
prisoners.
This
applies not only to the controversial detention camps, but also to the military
commissions where the justice process for September 11 attacks takes place.
Last summer, I was granted access to the US naval base in Guantánamo Bay in
order to observe two weeks of pre-trial hearings in the 9/11 case.
Terror
vs. torture
The
publication of the Senate’s Committee Study of the Central Intelligence
Agency's Detention and Interrogation Program in 2014 revealed that US
intelligence officials’ use of torture and secret CIA prisons – so-called black
sites – were far more widespread than previously assumed.
One of
the accused and the alleged mastermind behind the 9/11 attacks, Khalid Sheik
Mohammed, was subjected to the ‘enhanced interrogation technique’ known as
waterboarding 183 times in a secret CIA black site in Poland. He was probably captured
together with one of his co-defendants Mustafa al-Hawsawi, who sat on a pillow
the few times he chose to be present during commission hearings. The torture
that al-Hawsawi was subjected to included penetration of foreign objects into
his rectum – carried out with ‘excessive force’. Due to a lack of adequate
medical care, al-Hawsawi has since suffered from anal prolapse, and has had to
manually insert this part of his body after having been to the toilet.
According to his defence lawyers, the pain that this has caused him has made
him minimize his eating. In the ‘Expeditionary Legal Complex’ – the temporary
courtroom facilities set up on ‘Camp Justice’ at the base – sat a man of about
50 kilograms. His defence lawyers believe that his condition and the
circumstances he is detained under still amounts to torture. Only last month –
after ten years at Guantánamo in this condition – did al-Hawsawi receive
surgery for damage caused by the CIA while in US custody.
There are
few who believe that someone will be held accountable for what is commonly
referred to as the US’ ‘unconventional warfare’. However, the violence
perpetrated in the name of counter-terrorism has become intricately entangled
with the 9/11 pre-trial proceedings in the military commissions. Despite the
publication of what is widely referred to as the ‘CIA torture report’, large
parts of the document remain redacted and classified. This also applies to
information that is relevant for the justice proceedings and the five
defendants.
Evidence
is classified and destroyed
Because
the prosecution constantly invokes national security, the defendants’ opportunities
to refute accusations in the military commissions are extremely restricted due
to non-disclosure of evidence. During hearings this summer, it became clear
that the judge had permitted the destruction of evidence otherwise believed to
be of use as mitigating by the defendants. What the evidence consisted of
remains classified, but it is believed to be related to one of the CIA ‘black
sites’. Independent of whether you call it civil or military justice,
destruction of evidence strikes at the heart of fundamental principles of a
fair trial.
Unfortunately,
this is only one of many violations of the fair trial rights of the accused:
computers and confidential communication between lawyers and clients have been
seized and monitored; smoke detectors in meeting rooms have hidden surveillance
gear, too many defence lawyers’ homes have been broken into…
A couple
of years ago, the FBI infiltrated one of the defence teams by recruiting
informers among them. Last year, it also became clear that one of the
defendants’ translators had previously worked as a CIA translator – the
defendants recognized him from one of the black sites. It is also believed that
the CIA – and not the military commissions – control the flow of information
out from the courtroom and into the military ‘public’ gallery where those
observing the proceedings are sitting.
Judicial
processes beyond the rule of law
Khalid
Sheik Mohammed, Walid bin Attash, Ramzi bin al Shibh, Ammar al Baluchi and
Mustafa Ahmad al Hawsawi are charged neither by a civilian criminal court nor
by an ordinary court-martial, but face the death penalty in a specially created
military court.
In other
words, the justice process after September 11 takes place beyond the confines
of the ordinary rule of law. The US Supreme Court has found a previous version
of the military tribunals at Guantánamo unconstitutional, and the current
version is number three in the series.
Although
the rights of the accused are somewhat strengthened now – the defendants have
access to lawyers in today’s version – the military commissions’ legitimacy
remains a highly contentious issue. Human rights activists and international
lawyers consistently reject the jurisdiction of the Guantánamo military
commissions, and believe that the accused should be prosecuted by civilian –
and not military – courts.
Whether
or not the military commissions at Guantánamo – including its rulings and
potential convictions – will stand the test of time remain to be seen: the
jurisdiction of these military commissions have not been dealt with by the US
Supreme Court, for instance. Such legal instabilities add insult to injury for
those awaiting justice in the form of final convictions and executions, such as
some of the 9/11 victims' family members. Chances are they may also be waiting
in vain. Fifteen years after September 11, the proceedings are caught in a
legal quagmire on everything from the judge's impartiality to poison gases at
Camp Justice, which houses the temporary court rooms and the court observers.
The trial
is not expected to actually begin until sometime in the 2020s, if it gets going
at all. Meanwhile, the five defendants are detained for at the least their
tenth year at Guantánamo Bay in a secret detention facility restricted to
independent access from UN observers.
This
‘justice’ process can be understood as a result of a fundamental contradiction:
that between government efforts to prevent disclosure of the crimes they
themselves have committed in the war on terror on the one hand, and defence
lawyers’ struggle to defend their clients’ fundamental rights to a fair legal
process on the other. As in any justice process, there are opposing interests,
but the victims’ – and the public’s – need for justice after the 9/11 attacks
are stacked up against a judicial process that is not possible to conduct as a
fair trial.
Of the
few people that are allowed to board the plane to the legal drama that unfolds
at Camp Justice, half of them are there to observe a justice process relating
to September 11 – the other half are there to observe a process regarding the
use of torture. It is by an ironic twist of fate that the justice process after
September 11 has become a forum where not only judgment will be passed on
terrorism, but also on the global War on Terror.
A Norwegian version of the article was
published in the Norwegian newspaper Aftenposten
on 11 September 2016. This version has also been published in a scholarly
newsletter circulated as a PDF for members: Newsletters Criminology and
International Crimes, Vol. 11, nr. 2, December 2016.