This past week, there was yet another pre-trial hearing at Guantanamo Bay for Khalid Sheikh Mohammed (KSM), accused of being the chief designer of 9/11, and four others. This was pre-trial number 42 and the eighth judge on the case. There is no trial date.
Those knowledgeable about trials at Guantanamo describe the “system” there as a joke, a fiasco. We’re all told the wheels of justice turn slowly, but this is a whole different level. Why is that? And why does Guantanamo exist in the first place?
One of the most important points to answering both of those questions is this: government-sanctioned torture. We’re all aware that torture took place in Guantanamo. There was a Senate Select Intelligence Committee report on it. Prisoners described what they said happened to them. We’re also all aware that many held there were not and have not been charged.
The numbers now are as follows: there are 39 held in Guantanamo. Two have been convicted in “military commissions” (these were ordered by President George W. Bush in November 2001 to try some non-citizens suspected of terrorism), ten more are awaiting trial (five of whom are accused of 9/11 involvement), 17 have never been charged but will remain in prison for life because they’re considered security threats, and ten have been recommended for transfer but are still there.
What still goes somewhat under the radar though is the black sites (which were offshore, in places like Thailand, run by who would become Trump’s Senate-confirmed CIA director Gina Haspel), where people were detained on suspicion of terrorism or links to it in some way and were held without charge in secret prisons without access to any legal help.
What went on in those sites prior to the opening of Guantanamo is what James Connell, the defense attorney of Guantanamo inmate Ammar al Baluchi, says is a primary reason that Guantanamo exists. He stated:
“‘Covering up torture is the reason that these men were brought to Guantánamo, and the continuing cover-up of torture is the reason that indefinite detention at Guantánamo still exists’”
Connell went on:
“‘The cover-up of torture is also the reason that we are all gathered at Guantánamo for the 42nd hearing in the 9/11 military commission on the 15th anniversary of the transfer of these men to Guantánamo.’”
Emotions are a powerful thing. The government knows it well, so well that two psychologists were the architects behind the heinous “enhanced interrogation” techniques used to try to obtain information from detainees. They got $80 million from the CIA for doing so, and while we can’t say for sure (maybe his twisted mind really thinks it was a genius idea), perhaps that’s why Mitchell said he “‘would do it again.’”
This torture program is yet another reason that these trials and pre-trials are marred with faults—can the government use information obtained under torture in order to convict defendants? That question is pivotal to these cases.
One of the biggest challenges, as described here, is that the level of secrecy is such that even the defense lawyers are unable to obtain all the materials they need to simply do their jobs, i.e., defend their clients to help ensure they get a fair trial. And yes, we’re back to Point 1, the secrecy in large part is due to the torture not only at Guantanamo, but at the black sites.
Even in the pre-trial process, NBC describes that family members and journalists sit behind a glass wall, where the audio of the trial that is happening before them comes to them at a 40-second delay. This is to ensure that anything the defendants may say that is classified can be censored.
We have Guantanamo in large part so that the detained from the War on Terror would not be able to access the normal legal system. Biden has said he wants the prison closed, but NBC also reports that currently a $15 million dollar expansion is taking place.