Revelations about the NSA’s mass surveillance system have sparked a larger debate about the secrecy of America’s counterterrorism policies. Another example of the National Security State’s excessive secrecy lies in the information practices surrounding Guantanamo Bay Naval Station. The US military hides the prison’s dark realities through layers of classification and by mounting extreme obstacles to attorneys defending detainees.
On Thursday, August 15, 2013, Guantanamo defense attorney James Connell became the first lawyer to visit his client in Camp 7, a top-secret detention facility in Guantanamo housing high-value detainees. Connell’s client is Ammar al-Baluchi, a Kuwaiti national and one of the five alleged plotters of the 9/11 terrorist attacks that killed nearly 3,000 people. His suspected role was that of a financier.
In a phone interview, Connell said he was driven to Camp 7 in a vehicle with “obstructed view” to prevent him from seeing the path to the facility. He said that the trip took “approximately 30 minutes,” and he was in the facility for 12 hours. Connell “took hundreds of pictures,” and was allowed to meet with his client and take notes. He was granted access to al-Baluchi’s cell, the recreation area and medical space. Pictures and notes were taken in for classification review. They are not back, yet, as of this writing. Because of the camp’s secrecy, there is little Connell is allowed to say about the camp’s conditions. But when asked during a press call whether the conditions he saw in the camp met basic human rights standards, Connell responded, “No.” He added, “I intend to challenge them, but I can’t be specific yet, until I get classification review.”
Al-Baluchi is being prosecuted in a military commission, a special military tribunal established to prosecute non-US citizens who have engaged in or supported hostilities against the United States or its allies or was a part of Al Qaeda. They were established by the Bush administration in the 2006 Military Commissions Act to try suspected terrorists or militants captured in the War on Terror. The Obama administration, with a few tweaks, continues the practice. Military commissions have jurisdiction over typical war crimes, such as killing civilians and rape, but the Obama administration’s 2009 update added conspiracy and terrorism as triable charges, even though they are not war crimes.
The commissions are, technically, “public.” Reporters, legal observers and victims’ families are allowed to sit and watch the commissions. Members of the media are given visits to the prison camps, although organized separately from the commissions. But the word “public” becomes hollow the longer one is in Guantanamo. Reporters and other observers have to sit in rows of seats that lie behind a pane of thick, bulletproof glass that separates them from the courtroom. Observers can those in the courtroom, but cannot hear them. Lawyers, defendants and the judge speak through microphones, which observers can hear through an audio feed. But the audio feed is on a 40-second delay so it can be cut off if classified information is revealed during the proceedings. Reporters also can watch the proceedings through closed-circuit television in the media operations center.
Pictures have to be approved by soldiers for operational security reasons. If they spot something that isn’t allowed, such as a landscape, you’re supposed to delete the picture.
Reporters are not allowed to speak to detainees, including the defendants. Contrast this with the fact that George Zimmerman, who was tried and acquitted for killing unarmed African-American teenager Trayvon Martin in Sanford, Florida, gave an interview with Fox News’ Sean Hannity before the trial. That would never happen with someone like Lotfi Bin Ali, Abdul Khaled al-Bedani, Mohommod Zahir, Abdul Haq Wasiq, or any other detaineein Guantanamo. Therefore, the word “public” in Guantanamo is almost meaningless.
Currently, 164 people are detained in the US base at Guantanamo Bay, Cuba. Of those, around 20 can be “realistically prosecuted,” chief prosecutor US Army Brig. Gen. Mark Martins told reporters in a news conference at Guantanamo in June. According to a White House memo outlining plans to close the Guantanamo prison, the Obama administration claims 31 can be prosecuted in a federal court or military commission. Whatever the number, only a relative few, out of all Guantanamo detainees, are being or can be prosecuted at all. The majority are held indefinitely, without charge or trial,” until the end of hostilities” against Al Qaeda, the Taliban and “associated forces,” according to Martins, which could be decades from now. The Obama administration recently sent back two detainees to Algeria- Nabil Hadjarab and Motai Sayab. Still, 84 prisoners are cleared for release but remain in Guantanamo. In addition, the administration designated 46 to stay in indefinite detention, deeming them too difficult to prosecute but too dangerous to release. However, indefinite detention violates international human rights law.
To protest their conditions, dozens of prisoners have gone on hunger strike. The strike has lasted more than 200 days with around 37 currently on strike. To curb it, the military is force-feeding strikers, which violates medical ethics and amounts to torture. As of now, 33 are being force-fed. Al-Baluchi is not on hunger strike.
The fact that the American naval base in Guantanamo Bay is, essentially, a U.S. colony – not a state nor really a country – in a secluded portion of Cuba with no commercial flights makes the location a legal black hole. It is its own world with different rules and culture. Those imprisoned there are out of sight and out of mind. This is how indefinite detention, human rights abuses and force-feeding occur not just with impunity but with institutional support, obfuscation and secrecy. Weird is normal. It is a symptom of American empire.
The military commissions have posed numerous problems for defense attorneys, highlighting how the system undermines rights of the accused. Classified information is one element.
Connell and US Air Force Lt. Col. Sterling Thomas were detailed to represent al-Baluchi in 2011. In late April 2003, al-Baluchi was captured by Pakistani authorities and transferred to US custody where he was held in CIA black sites. He was sent to Guantanamo in September 2006.
There is little public information about how al-Baluchi was treated by the United States government. Because of a court-issued protective order, attorneys are prohibited from discussing how their clients were treated under US custody to anyone without a security clearance, including the defendants. This is because such information concerns “sources and methods” of US intelligence gathering, particularly torture. Even detainees’ “thoughts and experiences” of government treatment are classified. While evidence produced through torture is inadmissible in the military commissions – a change made in the 2009 law – coerced evidence, along with hearsay, is allowed.
The National Security Act of 1947 protects “intelligence sources and methods from unauthorized disclosure.” National Security Council Intelligence Directive No. 11 defines “intelligence sources and methods” as “information ostensibly over which requires security protection because of its specific means of procurement or specific place of procurement, revelation of which would endanger intelligence sources and methods.” That is why, when asked by Miami Herald reporter Carol Rosenberg about a government motion in the al-Nashiri case that isso secret that not only can its contents not be discussed but it also has no name, Martins answered, “There are sources, methods, classified information that are not – I know this is very difficult for a member of the fourth estate to wanna subscribe to – but there really are some things that are not gonna be divulged. … There are some things that we just aren’t gonna discuss.”
When I visited Guantanamo last June to report on military commissions, while he could not explain how al-Baluchi was treated, Thomas did tell me, “My client suffered immensely at the hands of some of the people who questioned him. And there are long-term and lingering effects.”
Torture violates domestic and international law, particularly the International Covenant on Civil and Political Rights and the United Nations Convention Against Torture, which were signed and ratified by the United States. Connell claims that “torture is absolutely central” to the 9/11 case. “It’s the whole reason we’re in military commissions. Because military commissions were designed to try to keep information about torture from the public. It’s central to the pretrial proceedings, it’s central to the guilt and innocence phase, and it’s central to the question of what punishment should be imposed if they are found guilty,” he explained. Many of the details about torture are classified in the military commissions. Considering that nearly all of the detainees in Guantanamo were tortured or mistreated at some point by the United States government, such secrecy has posed difficulties for defense attorneys to mount their cases.
During the previous pretrial hearings (August 19-23, 2013) for the 9/11 case, attorneys debated the issue of classified information. The 2009 Military Commissions Act allows the military judge to “issue an order to protect against the disclosure of any classified information.” This order prohibits attorneys from discussing how their clients were treated and imposes other draconian restrictions. “Not only does the protective order, right now, control what we can say,” Connell said, “it controls what information we can take in.” He explained, “So when a journalist or a nongovernment organization does a report on rendition or torture, we’re not even allowed to read it and handle it because, even though it’s public domain information, it gets considered classified under the protective order.” Connell expanded, “[T]here’s no reason why we shouldn’t be able read the same information that everybody else … can read. Other members of the public, other than us, can read information about what happened to our clients. But the protective order means that we can’t gather what is open source information because it gets considered classified when we handle it. And we asked the judge this week to try to fix that problem.”
Information on how some of the defendants were treated is publicly available. Khalid Sheikh Mohammed, the suspected ringleader, was famously waterboarded 183 times by the US in March 2003. Ramzi bin al-Shibh, a Yemeni, was sent to CIA black sites and tortured with electric shocks, sleep deprivation and forced nudity and wasforced to sit on sticks and bottles. Walid bin Attash, also Yemeni, was rendered to CIA black sites in Afghanistan, Poland and Romania. He was subjected to forced standing positions, even though he lost a leg fighting in Afghanistan and walks with an artificial replacement. However, this information is severely restricted to defense attorneys in the 9/11 case. “Not only would we not be able to discuss it in court,” Connell told me, “we wouldn’t be allowed to read it on our computers, we wouldn’t be allowed to save it or print it, and we wouldn’t be able to discuss it amongst ourselves, except in a secure facility.”
When asked why such excessive secrecy exists, Connell answered, “I think the overall reason is the United States government is definitely afraid that information about what it did will become public. And so one way they can control that is by controlling the attorneys – extremely strictly.” Carlos Warner, a federal public defender representing Guantanamo detainees, said similarly in an interview with Russia Today when explaining genital searches of prisoners. “These genital searches, are for one purpose,” he explained, “The purpose is to stop the communication. The more communication I have with my client, the more I can get out into the public eye. And that is not what the military wants. They want it to remain silent; they want it to go back into the background.”
The walls of secrecy thicken. Before Connell’s first visit to Guantanamo as al-Baluchi’s attorney, in October 2011, Guantanamo prison authorities confiscated the defendant’s legal materials as part of their “baseline review,” a Guantanamo euphemism for government searches of prisoner’s cells. This is on top of the sneaky surveillance of attorney meetings with their clients, violating attorney-client privilege. The searches were heavily contested by defense attorneys during June 2013’s pretrial hearings for the 9/11 case.
The issue was brought up during last week’s pretrial hearings. Daphne Eviatar, a journalist and senior counsel at Human Rights First who has covered Guantanamo extensively, wrote, “Prosecutors in the 9/11 case insist the defendants should not be allowed to see any written material related to current politics, historical perspectives on jihad, or anything by al Qaeda or other terrorists groups,” even though their alleged crime – carrying out the deadliest terrorist attacks on American soil – was “inspired by its [Al Qaeda’s] extremist politics and jihadist philosophy.” Guantanamo prison officials responsible for censoring such material are described by the euphemism “privilege team.” At the prison, items considered “contraband” are banned. But the term “contraband” has been stretched to absurd lengths.
Government prosecutors claim that screening and censoring such material is necessary for security reasons.To justify this claim, prosecutor Ed Ryan called attention to a hypothetical book that could be “written by some questionable author exhorting future violence” as posing an “unreasonable risk” to let into Guantanamo. But defense attorneys countered that banning such material – material that supposedly influenced the defendants’ actions – hinders their ability to adequately defend their clients. David Nevin, defense attorney for Khalid Sheikh Mohammed, asked Judge James Pohl, “If a fatwa is alleged in the charge sheet, how can it be banned from the accused as contraband?” Nevin added, “Never in the history of the world has there been a definition of contraband that includes a matter directly relevant to the defense of the accused.”
Banned books included former FBI interrogator Ali Soufan’s book The Black Banners: The Inside Story of 9/11 and the War Against Al Qaeda and the 9/11 Commission Report. Cheryl Bormann, defense attorney for Walid bin Attash, mentioned Soufan’s book because it has a chapter on her client.
Recently, it was revealed that author John Grisham’s novels were banned in Guantanamo. Upon hearing about this, Grisham wrote a New York Times op-ed excoriating the prison. He said, “Nabil [Hadjarab] has not been the only ‘mistake’ in our war on terror. Hundreds of other Arabs have been sent to Gitmo, chewed up by the system there, never charged and eventually transferred back to their home countries. (These transfers are carried out as secretly and as quietly as possible.) There have been no apologies, no official statements of regret, no compensation, nothing of the sort.” Not mincing words, Grisham added, “The United States was dead wrong, but no one can admit it.”
Another book banned in Guantanamo is Aleksandr Solzhenitsyn’s The Gulag Archipelago – a book that Shaker Aamer requested. Aamer is a Saudi-born British citizen detained in Guantanamo (and the last Brit there), even though he was cleared for release in 2007. Detailing the harsh realities of the Soviet forced labor camp (gulag) system, The Gulag Archipelago is notable for undermining the Soviet Union’s moral authority. George Kennan, an American diplomat who greatly influenced US foreign policy during the Cold War, said the book was “the most powerful single indictment of a political regime ever to be levied in modern times.” Some have noted the irony of this book being banned in Guantanamo, which has had a similar impact on America’s moral authority in the world.
In the end, Connell retains limited expectations regarding the release of classified material, saying he hopes that he and the other defense attorneys “will at least be able to receive open source information.” He added, “I also hope that the military commission will decide that the people that it’s trying to execute get to see the evidence against them, even if it’s classified.” Considering the obstacles Guantanamo defense attorneys face, he’s not sure whether any of that will happen. At the end of our interview, Connell quipped, “You can’t make this stuff up at Guantanamo.” And he’s right – you can’t.
In related news, Ubisoft recently released the game “Splinter Cell: Blacklist.” In it, players get to play a black ops agent engaged in secret missions around the world to prevent terrorist attacks against the United States and its allies. In one level, the agent poses as an orange-jumpsuited detainee to infiltrate Camp 7 in Guantanamo and torture a prisoner there – or kill him after the guy croaks intelligence, if the player wants. So while the abuses in Guantanamo are hidden from the American public through rigorous censorship, game enthusiasts get to simulate being a special operator who tortures and kills terrorist “bad guys” around the world, including in Guantanamo, to defend America’s “freedoms.” You can’t make this stuff up.