Jason Wright1
I first traveled to Guantánamo Bay in September 2011 at the start of my sixth year as an Army judge advocate. I had spent the previous two years defending soldiers accused of felonies and misdemeanors in Germany before military courts. These two short years—in the Army’s eyes—made me a suitable candidate to represent detainees in these untried and troubled military commissions. I would soon learn that experience counts for little in this botched experiment at justice.
When I first stepped off the plane in Guantánamo, the military commissions were on a hiatus. Even though I was assigned to two cases, U.S. v. Khalid Shaikh Mohammad, and U.S. v. Obaidullah, nothing was happening. Mr. Mohammad had been captured in 2003 on suspicion he had served as Osama bin Laden’s chief planner for the attacks on September 11, 2001. While Mr. Mohammad had been categorized as perhaps the highest of the “high-level detainees” by the U.S. government, Obaidullah occupied the other end of the spectrum—a so-called “low-level detainee” captured in Afghanistan in 2002 on a paid informant’s claim that there were landmines buried near his family’s property.
As of August 2011, President Obama and Congress had been embroiled in a very long staring contest. Immediately after assuming the presidency, Obama had shut down U.S. v. Mohammad “Round 1” and had the case dismissed because he wanted to fulfill his pledge in 2009 to close Guantánamo Bay within one year. Although more than one year had passed, the president still wanted to have the 9/11 case tried in federal court in the United States.
Obaidullah, and other “law of war” detainees arrested in Afghanistan and elsewhere, faced far more uncertainty. In 2008, the government drafted a charge sheet against Obaidullah for conspiracy and material support for terrorism, but later withdrew the charges in June 2011 without explanation. There had been no allegation in these documents that Obaidullah had ever harmed anyone, and no judicial process loomed on the horizon.
In early 2011, Attorney General Holder announced that Mr. Mohammad would at some point face a trial by military commission for complicity in the attacks on September 11, 2001. Nearly ten years later, Mr. Mohammad and his defense team had received no indication as to when the government would reinstitute a charge sheet. Nonetheless, it was apparent that the Department of Defense was gearing up for U.S. v. Mohammad “Round 2”—despite Obama and Holder’s sentiments that the military commissions were untested, untried, and unfair.
Enter me, the Army captain with two years of criminal defense experience who gets assigned to defend a so-called high-value detainee in what the FBI has described as “the largest criminal investigation in the history of the United States.” During my first trip to the island penal colony, I quickly learned two things:
The U.S. government has silenced torture victims. To my knowledge, there is no country in the world, aside from the United States, where a government has declared that every word, every utterance, and every breath of a prisoner is classified. For Obaidullah, an Afghan villager indefinitely imprisoned for more than 12 years without trial, the U.S. government requires both his habeas corpus and military defense counsel to hold security clearances at the “Secret” level. From the start, this requirement to obtain a security clearance eliminates Obaidullah’s pool of available attorneys to those U.S. citizens who are eligible to obtain one. For Mr. Mohammad, as with the other so-called “high-value detainees,” the U.S. government will not allow an attorney to meet with him unless the attorney possesses a “Top Secret” security clearance.
The U.S. government has a troubled history of denying access to these prisoners. Take Mr. Mohammad, for example. According to declassified U.S. government documents, Mr. Mohammad was arrested in Pakistan in March 2003. Yet, despite his requests for an attorney—from his initial arrest and interrogation through so-called FBI “clean team” interviews at Guantánamo Bay—he was not provided access to an attorney until some five years later in 2008. And when such access was finally granted, it was subject to a regime of “presumptive classification.”
I had never heard of “presumptive classification” before, but I soon learned about it at a briefing after receiving my “fully adjudicated” Top Secret security clearance. I learned in the fall of 2011 that every word that passed from Mr. Mohammad’s lips was “presumptively classified” at the Top Secret level. Apparently, Mr. Mohammad possessed powers akin to Magneto from the X-Men—his mere utterances would expose the United States government and its citizens to “exceptionally grave danger.” It was for this reason that lawyers and their staff had to possess Top Secret security clearances and had to handle his words and writings as if they were classified. Of course, there were always exceptions! This rule appeared to apply only to his lawyers; I later learned from the government prosecutors that Mr. Mohammad and the other so-called high value detainees were routinely exposed to personnel from Joint Task Force Guantanamo (JTF-GTMO) who did not possess such clearances, such as guards, drivers, escorts, and medical personnel.
Nonetheless, I was truly stupefied about this “presumptive classification” regime that seemed to apply only to the lawyers. During my Top Secret clearance in-brief (a prerequisite before I could meet with Mr. Mohammad), I needed some clarification: “So, hypothetically, if Mr. Mohammad said: ‘I like peanut butter,’ would this statement be classified as Top Secret”? The answer from my briefer from the intelligence community: “Yes.”
The defense repeatedly challenged the presumptive classification regime in U.S . v. Mohammad “Round 2,” and, as a result, the military judge later invalidated the government’s “presumptive classification” constraint as being contrary to law and policy. However, any evidence regarding Mr. Mohammad’s torture by the U.S. government while being held in black sites remains classified. The government claims that exposing this information would injure the United States. In reality, exposing this information would confirm instances of U.S. atrocities committed during the “War on Terrorism.”
Aside from silencing torture victims in violation of the right to complain under the Convention Against Torture, an international treaty signed by more than 150 nations, the U.S. government logistically restricts access to counsel through a conflicting web of SOPs (standard operating procedures) that change with each new rotation of guards, approximately every six to nine months. The rule to silence, however, remains etched in stone. While the Justice Department’s Bureau of Prisons allows convicted prisoners in Supermax facilities to call their lawyers and their family members on the telephone, JTF-GTMO prohibits this. Defense counsel must travel to Guantánamo Bay and spend about a week there just to be able to speak to their clients, even if for only one two-hour meeting. And only recently did defense counsel win the right before the military commissions to write their clients with assurances that their communications would not be intercepted and read by JTF-GTMO.
Virginians who, like me, grew up in the state’s public school system with its proud traditions and contributions to this nation’s founding, took as their birthright the tradition of colonial struggle against the tyranny of the Crown. The freedom to speak, this thing called “due process,” and the right to a fair trial were not just ideas, but were ethos. You didn’t memorize the Bill of Rights, you breathed it.
I never would have believed 30 years later that I would witness my own government’s tyranny: Torture. Indefinite detention. Complicity in war crimes. Denying access to counsel. Destroying evidence. Withholding evidence. Intimidating lawyers. Spying on lawyers. Destroying careers. Lying to the American public. The list continues, and the lack of universal public outrage and condemnation in the U.S. speaks not to the gravity of the offenses, but to our collective cognitive dissonance.
When two facts, beliefs, or emotions are mutually inconsistent, our minds must find a way to release this dissonance. Like the smoker who knows that smoking causes cancer, it is easy to rationalize that it’s not that bad or it’s a light, filtered cigarette. If we, collectively as Americans, believe that we are the “beacon of hope for the world” and the “champions of human rights,” how can we reconcile the injustices and abuses our government has committed against Guantánamo prisoners? We can’t.
It’s not apathy. It’s not a lack of compassion. It’s that we simply cannot pay attention and bear witness to ourselves. It’s just too difficult to reconcile our own beliefs about ourselves (i.e., we are the beacon of hope) with what has been done for our “freedom” (i.e., the injustices and abuse of prisoners). We just can’t reconcile it—and this fits the classic definition of cognitive dissonance. It is for this reason that Guantánamo is ignored. The best way to release the conflict in your mind is to ignore it, to put your head in the sand because that is the easiest thing to do.
The defense bar at Guantánamo is legally and ethically obligated to confront this dissonance and to bear witness—to tell the full story of what happened to these men and to bring the light of truth to this dark period in American history. This is precisely what makes us such a great country—this ethos to bear witness even unto ourselves.
Congress empowered the defense bar to represent zealously the interests of the accused, to hold the government to its burden of proof, and to ensure that the process is fair. Yet, despite this constitutional and congressional mandate, the government, through negligence or intentional design, has acted to impede defense efforts at every turn.
Seizing Attorney-Client Materials. With the 9/11 case, for instance, JTF-GTMO, in advance of the prosecution’s second indictment of the 9/11 defendants before military commission “Round 2” in 2012, seized, reviewed, and copied privileged attorney-client communications properly stored within the cells of the prisoners during a three-day period in October 2011 without consulting with their lawyers or obtaining a court order. Two months later, the JTF camp commander issued an order directing that he wanted his staff, comprised of law enforcement and intelligence personnel, to review every written correspondence between attorney and client. Because attorneys are legally and ethically barred from disclosing client confidences, the attorneys could not abide by this order and, as a result, were unable to communicate in writing with their clients for nearly two years until the military judge overruled the camp commander in the fall of 2013. From December 2011 through November 2013, defense attorneys were unable to share the most basic written materials with their clients—from the charge sheets to the written rules of evidence and procedure.
Spying on Attorneys? During pretrial hearings in the 9/11 case in January 2013, an intelligence agency intervened in the military commission proceeding at Guantánamo and severed the audio feed to the public. The commissions have a 40-second audio delay. This means that everything a courtroom actor says is delayed by 40 seconds before the observers in the gallery, who sit behind a soundproof and bulletproof wall, hear those words. The observers at the remote viewing sites in the U.S. also hear the court discussions 40 seconds later. These 40 seconds allow for the court security officer, who is seated to the right of the judge, to review what is being said before the public hears it. If the security officer believes that either the judge or the counsel has said something that is classified, he has the obligation to sever the audio feed to protect the classified information. When the audio feed is severed, the security officer pushes a red light that we have all nicknamed the “hockey light” based on its resemblance to the red light that flashes when a hockey puck makes its way into the net.
On this day in January, David Nevin, lead counsel for Mr. Mohammad, was at the podium speaking to the military judge. In the middle of a sentence, some trigger-happy member of the intelligence community perceived that that Mr. Nevin had just said something classified (which he had not), and severed the audio feed unbeknownst to the judge or to the court security officer. In other words, the judge had no idea that the intelligence community had control over his courtroom. This was clearly no puck in the net for the military commissions. This matter remains in active litigation as the defense is still trying to seek permission from the military judge to discover the facts as to who and which agencies had (or have) control over the courtroom, but for the time being, the military judge ordered that only he and his staff have the authority to sever the audio feed.
It gets weirder. Around the same time, defense counsel started to become increasingly alarmed that the private conversations they had been having with their clients in the Guantánamo meeting rooms for a period of years have been monitored. While the defense attorneys were told that their meetings were monitored by video (for force protection purposes), they were told JTF-GTMO “never listened” and did not “have the ability to listen.” Around the same time as the infamous hockey light incident in January 2013, my team had a shocking revelation from above—literally, from above.
Looking up into the ceiling one day during a client meeting, the circular smoke detector caught our eye. Standing on a chair to get a closer look, the dime-sized black “test” button in the smoke detector’s center looked oddly fuzzy.
“It’s a mic!” Yes, what appeared to be a smoke detector was, in fact, a listening device. The military judge subsequently ordered that these listening devices be removed from the meeting rooms, but to this day, the U.S. government has never explained fully the various stories and inconsistencies provided to the military judge and defense counsel concerning the capability for audio monitoring and recording. For instance, the camp commander testified that he did not know that the capability existed, yet two months earlier he signed a work order to authorize the repair of broken lines for the system. The defense teams are still trying to obtain further information from the U.S. government concerning the scope of the monitoring and the interference with the attorney-client relationship.
Compromising Defense IT Systems. Defense attorneys must treat all client confidences and case-related materials as privileged, and prevent people from outside the attorney-client privilege from gaining access to then. For this reason, defense attorneys assigned to the federal defender services who represent indigent defendants in federal court have an IT system and computer system that is completely separate from the judiciary and from the prosecutors at the Department of Justice. Not so in the military commissions. From December 2012 through the summer of 2013, the defense teams—the military’s version of public defenders—discovered that people outside of their respective defense teams had access to their confidential files and their emails. IT personnel at the Pentagon during this period inadvertently destroyed approximately seven gigabytes of data, turned over approximately 500,000 defense emails to the prosecution, and caused defense emails to vanish into the far reaches of cyberspace. The situation was so bad that for nearly six months, the top defense lawyer, the chief defense counsel, who provides ethical and supervisory guidance, directed all members of her office not to use their work emails or network drives to transmit or store any confidential materials.
In order to try to get the job done, many of us were relegated to filing motions and corresponding with our fellow defense team members using our personal email accounts at local coffee shops—whether in Virginia near our stateside offices or at the coffee shop next to the jerk shack in Guantánamo. To this day, we are still experiencing complications with the lack of a stand-alone IT system.
Forced Resignation of Defense Counsel. Military attorneys representing Guantánamo Bay prisoners have suffered adverse career consequences. Several have been “passed over” for promotion after completing their duty requirements in Guantánamo Bay, and, most recently, I was forced by the U.S. Army to sever my attorney-client relationship with Mr. Mohammad and to resign from the Army.
I have been representing Mr. Mohammad since September 2011, and have appeared on his behalf as one of his detailed military defense counsel since the arraignment in May 2012 and throughout the pretrial progression of the case (approximately ten hearings). I have traveled extensively to meet with witnesses, and have been working nearly full time on the case (aside from my obligations to Obaidullah) for nearly three years. I have spent nearly 250 days in Guantánamo during this period.
In August 2013, the U.S. Army promoted me to the rank of major. Typically, upon promotion to major, U.S. Army judge advocates are compelled to attend a year-long education course administered by the Army to obtain an advanced degree in military law. Selected officers, however, may request to defer this course for operational or personal reasons. There is no limit to the number of deferrals a newly promoted major may request; and, accordingly, I was granted a deferral from attending the 2013–2014 course due to my representation of the lead defendant in the 9/11 case. In January 2014, I was once again notified that I had been selected to attend the 2014–2015 course and, once again, I requested a deferral. This time, however, the U.S. Army denied my deferral request without explanation. The top lawyer in the Army, the judge advocate general, declined to provide a reason to the military commission and to me, and instead informed her subordinates that I could not continue to work on the case on a part-time basis while taking the course and that I could not be reassigned to the case after completing the course.
On February 26, 2014, I was issued orders to report to the school from August 2014 through May 2015. Under Army regulation, this forced a decision on my part. I had two choices: (1) go to the school as directed and continue my Army career, thereby “voluntarily” severing the attorney client relationship; or (2) resign.
Because I have a legal and ethical obligation to represent the best interest of my client—be it a capitally charged client or a private facing an AWOL—I had to choose the option that extended the attorney-client relationship the furthest. Resignations take approximately six months to take effect in the Army, which would permit me to continue representing Mr. Mohammad throughout two additional hearing sessions in June and August of 2014. Attending the course, on the other hand, would require me to move and leave the case in June 2014. For these reasons, I was obligated by the Rules of Professional Responsibility governing lawyers to choose that option that best served the interests of my client and preserved my representation the longest. Paradoxically, this required my resignation.
To this day, neither the U.S. Army nor the judge advocate general has provided a reason for removing me from the active representation of a capitally-charged client. Yet they continue to allow the chief prosecutor, an Army JAG too, to stay on the case, in his own words, “as long as it takes.”
FBI Attempts to Infiltrate the 9/11 Defense Teams. The 9/11 defense teams learned in mid-April 2014 that the FBI approached a member of the defense team for Ramzi Bin al Shibh. Agents accosted him on a Sunday as he returned home from church with his children and asked him about activities on both Mr. Bin al Shibh’s team and Mr. Mohammad’s team. They convinced him to sign an agreement where he agreed to develop a confidential relationship with the FBI and to not disclose the contents of his discussions with the FBI to anyone. This matter is now in active litigation, and has caused a near-complete stop in the case until further information is provided to all of the parties.
The prosecution claims it was unaware of this happening, even though one of its active trial counsel was also dual-hatted as the chief of staff to the deputy director of the FBI. It was ostensibly for this reason that the 9/11 prosecutors had to step aside on this issue and request that a special trial counsel represent the interests of the government in this litigation.
In the meantime, the judge ordered that additional attorneys be appointed to assist Mr. Bin al Shibh to advise him on whether a conflict of interest exists between him and their current defense team in light of the apparent investigation into the defense attorneys. This, like all things in Guantánamo, will take some time to work through. Although the Pentagon recently assigned new military attorney to advise Mr. Bin al Shibh on the conflict issue, just imagine the job announcement:
Brand new U.S. court system outside of the reach of the U.S. Constitution and in a foreign country seeks a qualified U.S. citizen to advise a client on a conflict of interest that may or may not be based on any facts that may or may not be provided to the attorney or to the client. Must be able to obtain a Top Secret security clearance, be willing to have his or her confidential letters read, conversations recorded, work-product lost, and future career prospects diminished. Foreign travel required. Preferential treatment will be provided to those applicants who agree that peanut butter could be classified.
Although this advertisement will never make it to the job boards, the investigation and litigation into this matter tied up the military commissions for the duration of 2014 and occupied much of the docket through 2015. Yet one thing has remained clear, first through a government-directed leak to the Washington Post and later in a brief filed by the government: the defense teams did nothing wrong. According to some reports, the government has subsequently been reviewing whether its own field agents acted improperly by trying to recruit, as a confidential informant, a member of the 9/11 defense team.
This falls short. There needs to be a broader policy review of all of these interferences with the right to counsel—from the “smoke detectors” to the FBI infiltration. Guantánamo isn’t a place, it’s a concept. Government lawlessness comes to mind.
The degree of “reform” to the military commissions system ushered in by Congress in 2009 in the “reformed” Military Commissions Act, which modified the 2006 Military Commissions Act, is a subject of intense academic and legal debate. To offer a perspective from the inside, as an attorney who has practiced in this system for three years, this is what I can offer: I often feel that Congress set a narrative stage drawn from one of four books. Sometimes the story line is based on a single one, and other times it unifies all four simultaneously: Catch-22, 1984, anything by Kafka, and one of the great works of American literature, A Confederacy of Dunces.
Many have said that the law for military commissions is designed for secret show trials that operate to secure convictions while concealing any wrongs committed by the U.S. government in pursuit of the War on Terrorism. I agree. But don’t just take my word for it, take the government’s word. The U.S. government has maintained that it has the authority to continue to imprison Guantánamo Bay prisoners indefinitely even if they were to be found not guilty of the charges against them. When the outcome of a trial doesn’t mean anything, that’s called a show trial.
In light of this overarching defect of the military commissions system, the rest of the significant due process problems pale in comparison. Yet they do bear mentioning. While the list is long, here are just a few of the design flaws. There is no statutory right to a speedy trial. There is no grand jury requirement or equivalent process (called an Article 32 hearing for courts-martial) for securing the right to indictment and presentment. The freedom from unreasonable searches and seizures is limited as evidence obtained without a search warrant or other lawful authorization may be admitted. Hearsay evidence is admissible. The defense is not entitled to “equal” access to witnesses and evidence as per court-martial practice, but only “reasonable” access. The courts-martial pretrial practice that allows for the dismissal of charges or other sentencing relief for unlawful pretrial punishment is not included in the Military Commissions Act. The trial judiciary is a component of the executive branch and, as such, does not function independently consistent with the requirements for federal trials under Article III of the Constitution.
Mentioned above are just some of the flaws in the statutory design of the military commissions. These flaws continue to be tested in U.S. v. Mohammad “Round 2,” which began with the arraignment of the 9/11 prisoners in May 2012. From May 2012 through the end of 2015, there have been 17 pretrial hearings (each lasting about a week), yet there is no trial date in sight. It took the U.S. government more than nine years to initiate these proceedings against Mr. Mohammad and his co-defendants.
The first three years the government had the case, it horrendously abused Mr. Mohammad by subjecting him to 183 mock executions on the waterboard. For the next several years, the government continued to deny Mr. Mohammad access to a lawyer even while imprisoned in Guantánamo Bay. Since arraignment in May 2012, the overwhelming majority of the delays in the process have concerned the government’s various interferences with the right to counsel under the Sixth Amendment: seizing privileged attorney-client correspondence, blocking the right to communicate privately in writing, shutting down the audio system in the courtroom, disguising listening devices in the attorney-client meeting rooms, corrupting electronic data, removing defense attorneys, spying on attorneys, and intimidating defense attorneys with a faux criminal investigation.
Some days it’s Kafka, and other days it’s A Confederacy of Dunces.
1 The views of Jason D. Wright are his own and were made in his official capacity as a defense attorney representing detainees before the U.S. Military Commissions under the authority provided by the Regulation for Trial by Military Commissions, paragraph 9–7 (2011). Mr. Wright does not represent the views of the Department of Defense or the Department of the Army.