The beige-carpeted room where an al Qaeda chief appeared last week charged with blowing a hole in the side of an American warship looks like any modern U.S. court, with pop-up computer screens at lawyers’ tables and a judge in black robes presiding from the bench.
But it sits in a warehouse-like building on an abandoned airfield at the Guantanamo Bay U.S. Navy base in southeast Cuba, ringed by barbed wire and nestled among rows of khaki tents and trailers in an “expeditionary” compound that was never meant to be permanent.
A decade after President George W. Bush authorized military tribunals for terrorism suspects, the Obama administration is plodding forward with new tribunals at a glacial pace, hampered by persistent political and legal arguments over the procedures and principles involved, Reuters reports.
“I think we’ve botched this so bad that we’re past the point of redemption,” said retired Air Force Colonel Moe Davis, a former chief prosecutor for the Guantanamo tribunals and now one of their strongest critics. He quit because of what he called political meddling and pressure to use evidence obtained through methods he considered torture.
The tribunals authorized by Bush in an executive order on November 13, 2001, were set up to try non-U.S. citizens on terrorism charges outside the regular U.S. federal and military courts.
Those who plotted the hijacked plane attacks of September 11, 2001, were neither civilians nor warriors and did not deserve the legal protections granted to either, Bush argued.
Ten years and three major revisions later, the tribunals remain largely untested.
Abd al Rahim al Nashiri, arraigned last week in the 2000 bombing of the USS Cole off the coast of Yemen, would be only the second prisoner to get a fully contested trial at Guantanamo. His case is not expected to be ready for trial for at least another year and his lawyers are questioning what legal precedents apply.
“One might say there are certain gaps that are not present in other more developed systems ….” the chief judge in the Guantanamo tribunals, Army Colonel James Pohl, said during the arraignment. “I think we all know the uniqueness of the system,” replied Richard Kammen, Nashiri’s lawyer.
NOT MEANT TO BE PERMANENT
The U.S. Supreme Court struck down the original version of the tribunals in 2006, ruling that the president had no power to create a court system. It said that authority rested with Congress, which created a new version of the tribunals in 2006 and then revised them at the behest of the Obama administration in 2009 to grant the defendants more rights.
Congress in recent months added a new wrinkle, with proposals that the military tribunals be expanded to try all foreign terrorism suspects, including those arrested in the United States, a prospect which horrifies civil rights advocates.
“Don’t make our armed forces judge, jury and jailer for terrorism suspects,” said Heather Hurlburt, executive director of the nonprofit National Security Network. “The military is completely unequipped for it.”
The Guantanamo tribunals are not strictly military.
Justice Department lawyers are included in the prosecution teams — an assistant U.S. attorney from Kansas is leading the case against Nashiri — while civilian lawyers from many top U.S. firms bolster the defense.
Kammen, a civilian attorney from Indianapolis, was brought in on the Nashiri case because he has experience handling death penalty cases, something most military lawyers lack. Nashiri, a round-faced 46-year-old Saudi merchant and alleged al Qaeda chieftain, could be executed if convicted of masterminding the bombing that killed 17 sailors.
The prosecution of five Guantanamo prisoners accused of plotting the September 11 attacks is currently on hold while the government conducts extensive security reviews of civilian lawyers chosen to join their defense teams as “learned counsel” with death penalty experience.
Prosecutors have asked to try those five, including self-described mastermind Khalid Sheikh Mohammed, on capital charges. President Barack Obama planned to send them to New York for trial in federal courts but Congress has blocked the transfer of Guantanamo prisoners to U.S. soil for any reason.
FROZEN AND THAWED
Shifting political winds have complicated the trials.
Obama froze the tribunals upon taking office in 2009 and ordered the Guantanamo detention operation shut down by January 2010. But Congress blocked his efforts to make civilian courts the preferred venue for terrorism trials, so Obama thawed the Guantanamo courts and allowed new cases to proceed this year.
Nashiri’s lawyers questioned whether he could be held forever even if acquitted. The Bush and Obama administrations have both said the law of war allows them to hold Guantanamo prisoners indefinitely, until the end of hostilities in the war against terrorism.
Six cases have been completed in the Guantanamo court. But four defendants pleaded guilty in exchange for leniency and one was convicted in a trial in which no defense was presented because the defendant said the tribunal lacked legitimacy.
Of the 171 prisoners remaining at Guantanamo, the United States wants to try about three dozen but Nashiri is the only one currently facing charges.
“These are extremely complicated cases,” a lawyer involved in the prosecution said.
Critics of the Guantanamo tribunals point out that the U.S. federal courts have tried more than 400 people on terrorism charges in the last decade. The post-World War Two Nuremberg tribunals managed to try more than 200 Nazi leaders and other accused war criminals in four years.
The Guantanamo tribunals have proceeded so slowly largely because of legal challenges to the system.
The tribunal rules are still being tweaked. Two days before Nashiri’s arraignment, the Pentagon released 202 pages of new rules, bolstering criticism that it’s an ad hoc system with rules made up on the fly.
Army Brigadier General Mark Martins, the sixth Guantanamo chief prosecutor in seven years, said the changes were largely administrative and dealt with procedures such as travel reimbursement and how the lawyers would be paid.
“None of these is unfair to the accused,” Martins said.
The Guantanamo tribunals have many fans in Congress, where a recent proposal in the House of Representatives would have blocked the use of federal courts to try foreign terrorism suspects. Senate Republicans inserted provisions into a 2012 defense authorization bill that would broaden the use of military detention for suspected terrorists.
Democratic Senate Majority Leader Harry Reid said he would block consideration of the defense bill until those provisions were changed. Pentagon General Counsel Jeh Johnson said they would “overmilitarize” U.S. counterterrorism efforts.
In an editorial published last month in the Chicago Tribune, three former federal judges said the “deeply disturbing” provisions could limit trial options and strip the FBI and local and state law enforcement agencies of the ability to gather intelligence from terrorism suspects.
“Not only would such an effort ignore 200 years of legal precedent, it would fly in the face of common sense,” they said. “Such an effort to restrict counterterrorism efforts by traditional law enforcement agencies would sadly demonstrate that many members of Congress have very little faith in America’s criminal justice system.”