Courtroom outbursts cause new delay in Gitmo pretrial hearings

GUANTANAMO BAY, Cuba — Ramzi bin al-Shibh has not been sleeping well. His attorneys say the government is subjecting him to a mechanical banging sound and vibrations every night in his cell at the ultrasecret Camp 7, tucked away in a secret corner of the controversial prison camp here. The noise keeps him awake at night.

The government denies the accusations, and, of course, for many people such problems for bin al-Shibh will be of little concern.

For bin al-Shibh is charged with plotting and carrying out the attacks on 9/11, along with four co-defendants, including self-professed mastermind Khalid Sheikh Mohammed. If convicted, they could face the death penalty. Though all five have been in U.S. custody since 2002 or 2003 — first at CIA “black sites” and then at Guantanamo beginning in 2006 — legal proceedings are still in a lengthy period of pretrial motions being held here. Even the opening arguments are at least a year away.

This week saw, once again, a fresh and likely lengthy delay in courtroom drama that is addressing events that took place more than a decade ago. The prosecution now wants government doctors to determine if bin al-Shibh is competent to stand trial — a motion that was ordered on Thursday. The proceedings will be put on hold until the examination is completed.

Though the attacks of 9/11 still loom large in American politics and culture, the actual trial for those accused of the act is unfolding off the American mainland, at an isolated military base on the island of Cuba. Testimony given there is largely unreported by the mainstream U.S. media. To watch it is to see a painfully slow process, marked by outbursts, bizarre disruptions and endless distractions over legal technicalities.

Sitting in the second row of the high-tech military courtroom last week, bin al-Shibh, dressed in a camouflage jacket and flowing headdress, refused to answer a yes-or-no question the military judge asked, and began yelling about the “torturous” sounds he says he's subjected to. “It's a secret CIA prison,” he yelled. “Nobody knows it. Nobody enters it. Nobody sees it.”

He was removed from the court by guards from a secretive unit known as Task Force Platinum. After being returned for the afternoon session on Tuesday, he called the judge a war criminal, which got him ejected for the second time that day. He was also removed twice on Wednesday, but not before he also called the prison's warden, Col. John Bogdan, a war criminal.

Bin al-Shibh's outbursts on Tuesday cut in and out as he inconsistently pressed the push-to-talk button on the microphone at his desk, and a translator relayed his speech in real time. But the next day, bin al-Shibh spoke in English and made sure he had the button pushed. “This is my life. This is torture. Torture,” he said on Wednesday morning. 

"Torturous" is also a word that might be used to describe the way the hearings have ended up in Guantanamo Bay. Attorney General Eric Holder attempted to bring the trial to lower Manhattan in late 2009, but the administration buckled under political pressure against the idea, largely from Republicans. President Barack Obama instead kept the trial at Guantanamo Bay, in a largely untested system involving military commissions. That legal regime is currently in its third iteration and borrows from both court-martial rules and regular civilian courts. Civil libertarians and human rights activists regularly criticize the system as irrevocably flawed.

The courtroom itself is outfitted with cameras and microphones to broadcast the proceedings to a viewing gallery walled off by soundproof glass. The feed is also shown in a nearby media center with a 40-second audio delay, so the journalists, NGO observers and 9/11 victim family members see the action but don't hear what's happening until later, when it plays out on monitors hanging from the ceiling. Therefore, the judge and his assistant can cut the feed to prevent classified information from being publicly disclosed.

In January of this year — much to the apparent surprise of the judge, Army Col. James Pohl — an unknown censor killed the feed. Following an outcry over the incident, no external censors have access to the kill switch anymore, journalists were told.

Brig. Gen. Mark Martins is the sixth lead prosecutor appointed to marshal war-crimes cases through the controversial system here. He is, in many ways, the de facto spokesman for the legitimacy of the proceedings held at Guantanamo. When he addresses the press he often directs reporters to specific, if obscure, case law and professorially suggests they read up on it. He is collected and dispassionate, and prefers writing legal briefs to speaking in media-friendly sound bites.

At a meeting with the press in a one-room trailer in the middle of the massive hangar that houses the media center, Martins addressed the future of the prison here. He described the war against Al-Qaeda and associated forces as “a different kind of armed conflict,” and said that the departure of most U.S. military forces from Afghanistan in late 2014 would not necessarily signal the end of hostilities against the terrorist network.

“Most people agree it's not going to end with a signing ceremony on the deck of a ship,” Martins said. “It's going to take processes and individualized circumstances to decide if the war (against Al-Qaeda) is over.”

Following the removal of most U.S. troops from Afghanistan, the administration could make two arguments that the war against Al-Qaeda continues, according to one expert. “The administration may claim that the U.S. military remains engaged in Afghanistan to continue to prosecute a war with Al-Qaeda,” said NYU law professor Ryan Goodman. Additionally, he said, “the administration may claim that the conflict with Al-Qaeda has moved to other countries and regions, such as a new hub in Yemen.”

But there is hope for some of the inmates at Guantanamo Bay, nearly all of whom have been held without charge, often for more than a decade. Obama ordered the creation of so-called Periodic Review Boards in 2011, but they began meeting only this November. Seventy-one detainees at Guantanamo Bay will be eligible for the process, which is designed to determine whether releasing any of the men would result in a threat to national security. As of now, the prison holds 158 people, following the repatriation of two Sudanese detainees this week.

Congress has also recently taken up the issue of the future of Guantanamo, including a provision in the proposed 2014 National Defense Authorization Act that requires the Defense Department to prepare a report detailing the additional rights that would “attach” to a detainee should he be transferred to the U.S. mainland.

But it is highly unlikely that the attorneys representing the 9/11 defendants will be involved in that process. “The chances of them letting us have any input in that report are pretty much zero,” said defense attorney James Connell, who represents 9/11 defendant Ammar al-Baluchi, with a resigned laugh. “We have not been invited to that party.”

In the meantime, the case creaks on. In the only two days of open court before it was suspended last week, defense attorneys argued that the process by which the charges were brought was defective. They asserted that a military body known as the Convening Authority — roughly analogous to a grand jury — didn't take into account that the defendants had been tortured. That fact, the defense says, should have kept the death penalty off the table in the trial, as it did in the earlier case of alleged would-be 9/11 hijacker Mohammed al-Qahtani. That motion dates back to 2012, yet remains unresolved.

"We hoped we were going to get some of the earliest motions filed dealt with," said Connell at a press briefing at the end of the week. "But instead, the prosecution filed a motion which brought the military commissions to a full stop.” If the wheels of justice turn slowly, nowhere is that more true than at Guantanamo Bay.