Twist of fate: terror, torture and justice in the 9/11 trial in Guantánamo Bay

There is a fundamental contradiction: between government efforts to prevent disclosure of the crimes they themselves have committed; and defence lawyers’ struggle to defend their clients’ fundamental rights.

Kjersti Lohne
12 February 2017


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.

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