Despite enormous logistical and legal hurdles, defense attorneys for high value detainees at the Guantanamo Bay, Cuba, military prison, say they press on for the judgment of history, if not for a fair turn before the embattled military commissions that substitute for trials in federal court.
Attorneys for alleged 9/11 attack planners Khalid Shaikh Mohammed (KSM) and Ramzi Bin al-Shibh and alleged USS Cole bombing plotter Abd al-Rahim al-Nashiri described their challenges to an audience gathered by the Center on National Security at Fordham Law School in Manhattan on Wednesday night.
Even though all the defense attorneys are vetted and cleared to access Top Secret documents, they agree that secrecy remains the root of most delays and dysfunction.
“If you sat down to design a system and said, ‘I want to create a legal system where everything will move slowly, glacially,’ you would design this,” said Richard Kammen, who represents al-Nashiri. For example, if Kammen, who is based in Indianapolis, wants to read a classified court document, he must travel to a secure facility in Washington, D.C. to do so. Once, Kammen said, he was ordered to respond to motions he was not allowed to read.
Even when the attorneys are at Guantanamo to meet in person with their clients, a detainee’s own words are considered secret.
“We were told that anything that came out of client’s mouths were considered to be ‘presumptively classified,’” said Jason Wright, who represented KSM until this August. “This phrase ‘presumptive classification’ is something that has never existed before in the laws of the United States.”
To make sure he understood, Wright, a former Army JAG, received a power point presentation at Guantanamo.
“I had a briefer who told me, when you meet with your high value detainee, you have to treat everything that he says as presumptively classified – every word, every utterance, every gesture,” Wright recalled.
“I said, ‘Hypothetically, what if he told me he liked peanut butter sandwiches? Is that classified?’”
“Yes,” he was told.
Wright said, “What country in the world believes it can actually classify someone’s thoughts and beliefs? What they’re classifying were the words that would come out of their mouths about the torture experiences.”
Wright, Kammen, and James Harrington, who represents Bin al-Shibh, see a persistent effort to block any disclosures about detainee mistreatment, particularly when the detainees were held overseas in CIA custody.
“Virtually all the restrictions we operate under are designed to protect CIA information,” Kammen said. “The government takes the position that even we can’t be trusted with it.”
Instead, defense attorneys have been provided vague summaries of their client’s past interrogations and statements. How vague? As an example, Kammen shared his itinerary of the previous 48 hours – flying on Tuesday, October 28, from his home in Indianapolis to Chicago for a presentation at Loyola University. After spending the night there, on Wednesday, he flew to New York for meetings related to his Guantanamo case during the day and then attended the Fordham panel in the evening.
Kammen said, “The summary would probably read something like this: ‘On a day in the fourth quarter of 2014, Rick left his home and went from one place to another place, and then he went onto a third place, and then he returned.’ Literally that’s how general the summaries are.”
Harrington believes the information about detainee torture is being kept secret to protect officials who carried it out or allowed it to happen.
“Whether it’s the people who engaged in the torture, many of whom were assured by their government that if they did these things no one would ever know, and they would never be prosecuted,” Harrington said. “We want to believe still that this [country] is the shining city on the hill. This is a real black hood put over the light.”
At Guantanamo, everywhere the defense attorneys go seems to be bugged. Microphones at the defense tables have picked up their conversations. Fake smoke detectors in attorney-client meeting rooms hid eavesdropping microphones. During a hearing, someone off site set off an alarm when his agency thought classified information had been revealed. Just as bad, Harrington believes, is the lack of indignation over these discoveries by the military commission judges.
“I cannot imagine a federal judge who would let somebody – anybody – interfere with his or her domain, which is the courtroom, that he or she did not know about and did not sanction for approval,” Harrington said.
Even getting to Guantanamo is not easy. Charter flights from south Florida to Cuba leave you stuck there for a week, because the planes go down only on Monday and return only on Friday. Compounding that, according to Michel Paradis, an attorney in the DOD’s office of chief defense counsel, is the alphabet soup of agencies that control different parts of the base – the courtroom, the detainee center, lodging.
“Every single time you go to Guantanamo, you spend about a day – a full working day — simply getting the keys to your office, or the badges you need to get where you are going, to get a car to so you can drive around this base,” Paradis said.
Despite the hassles, the defense attorneys find the work purposeful and important. Standing up to the government and holding it accountable, even when top al Qaeda members are the clients, is what they signed up for.
Kammen said, “These cases will be reviewed in history – 10, 20, 30 years from now. The question that’ll be asked is, ‘Were the lawyers doing what lawyers are supposed to be doing? Were they telling the truth?’ And I hope when they look back on me, they’ll say, ‘Yeah, that guy was in there, and he was fighting.”
Paradis added, “In some respects, we are the immune system for the American justice system. We caught a disease after September 11th, which led us to torture, which led us to give up our values.”
Paradis recently argued an appeal of the one life sentence that has resulted from a Guantanamo military commission. He said, “Trying to heal the legal system, if that doesn’t sound too trite, I think does motivate me.”