The following guest-post was written by Kate Gibson, who has been representing accused before the international criminal courts and tribunals since 2005, including as co-counsel for Radovan Karadžic and Charles Taylor, and as lead counsel for Justin Mugenzi before the ICTR. She is currently the co-counsel of Bosco Ntaganda before the ICC, where she also represented Jean-Pierre Bemba between 2009 and 2018. She was an observer to the 9/11 proceedings before the Military Commission in February 2020 as part of the ADC-ICT’s Guantánamo Bay Observer Program.
Almost 20 years after the event, five men are facing charges for their alleged role in the hijackings that killed nearly 3,000 people on September 11, 2001. The U.S. Government has charged the group of five accused – including the alleged 9/11 “mastermind” Khalid Shaikh Mohammed – with terrorism and murder as a war crime, among other counts. This is a capital case, with the Government seeking the death penalty, and one that exposes the all-too thin line between the legitimate pursuit of accountability and the (ab)use of defendants’ rights to reach the desired result.
The charges would have been readily prosecutable in U.S. Federal Court. In fact, some of the accused were first indictedin the Southern District of New York. Ultimately, the proceedings were carved out of the domestic legal system and are now being conducted offshore before a U.S. Military Commission in Guantánamo, Cuba.
From its peak of 780 detainees in 2005, 40 people remain incarcerated at Guantánamo, a Naval Base just over 100 square kilometres in size, located in a steamy outpost at the southeastern tip of Cuba. At a current annual cost of USD 13 million per inmate, some of the 40 who remain are “forever detainees”, who will never be charged, but will be released at the conclusion of the “War on Terror”.
The Military Commissions are essentially hybrid courts; a cross between the U.S. federal court system and a military court-martial. They have been controversial since inception. Attacked for their perceived incompatibility with international fair trial standards and on the basis that they are not ‘regularly constituted courts’ as required by Common Article 3 of the Geneva Conventions, the narrative of the Commissions being a “failed experiment” has taken hold, and is proving difficult to shake.
The fair trial concerns are neither minor nor peripheral. Under the Military Commissions Act (2009), the presumption of innocence has been significantly weakened (if not obliterated) by personal jurisdiction being triggered by a determination that the accused are “unprivileged enemy belligerents”; namely those who have engaged in or materially supported hostilities against the U.S., or were part of al-Qaeda at the time of the alleged offence. The U.S. position is that any attack on U.S. forces is a war crime, and that any support of hostilities or membership in al-Qaeda can be construed as supporting terrorism. As such, the presumption of innocence is effectively a legal fiction.
Exculpatory evidence is frequently withheld on the basis that it is “classified”, despite the lead Defence lawyer on each team (the “learned counsel”) having a security clearance of at least “top secret”. Wildly permissible evidential rules permit the admission of illegally-obtained evidence seized outside the U.S., as well as statements by the accused on the grounds of alleged coercion or compulsory self-incrimination.
Add to this last week’s revelation that Presiding Judge Colonel W. Shane Cohen granted a request from the Government to use a “device” in the courtroom, to be hidden from the Defence, allowing the CIA and other “Original Classification Authorities” (“OCAs”) to follow the proceedings in real-time and communicate directly with the Government lawyers. The OCAs can then prompt the Government lawyers to ask the Court Security Office (CSO), who sits beside the Presiding Judge, to stop evidence for reasons of national security, or to prevent potential “spills” of classified information. Defence teams first noticed the device – a small silver tablet – during the cross-examination of CIA psychologist Dr. James E. Mitchell, who co-developed the Agency’s “enhanced interrogation program”. Suspicions were raised that the device could communicate with third parties outside the courtroom, after Government lawyers were unable to explain why they had asked for an interruption to the evidence.
While conceding he was wrong to authorise real-time contact between the Government and OCAs ex parte, Judge Cohen insisted the device does nothing more than leverage technology to prevent “spills” of classified information, and reacted angrily to Defence submissions that apparent intelligence agency disruption undermines a fair trial. Given that the CSO does not consult with these OCAs before preventing evidence from entering the record, the potential for abuse is clear. Allowing third parties to unilaterally censor witnesses from outside the courtroom, introduces another layer of state control to the proceedings that is difficult to reconcile with their purported independence.
In the same heated exchange, Judge Cohen insisted the device was not being used to spy on Defence teams, and said he would “dismiss the charge without thinking twice about it” if the Government was found to be monitoring Defence communications. This is a significant statement in a case where, in 2013, defence teams discovered that the smoke detectors in attorney-client meeting rooms were in fact listening devices; in 2014 the FBI attempted to recruit a defence team member as a confidential informant; and in 2015, one of the accused identified a courtroom translator as a former interpreter from a CIA black site, following which the Government chief prosecutor Brigadier General Mark Martins accused Defence lawyers of failing to do their “due diligence” in not having identified him earlier. Continue reading