SMU Dedman School of Law Prof. Chris Jenks visited Naval Station Guantanamo Aug. 11-15. This is the fifth and final blog of the series.

Ostensibly I traveled to Gitmo to observe the military commission proceedings against five members of al-Qaeda who allegedly planned the Sept. 11, 2001, terror attacks. Included among them is Khalid Sheikh Mohammed, who once boasted, “I was responsible for the 9/11 operation from A to Z.”

Khalid Sheikh Mohammed in 2003, left, and in early 2012.

Mohammed has undergone a radical transformation. And since spring 2012, he’s been dying much of his beard henna-red, as shown here.

I say “ostensibly” because although the military commission was to be in session Monday through Friday from 9 a.m. to 5 p.m., we were in court a total of six hours. For the week.

The only thing I saw accomplished was that the military judge reconsidered an earlier ruling he’d made to break the case of one of the 9/11 planners away from the other four. As a result, all five are back in one joint 9/11 case, which is another way of saying the case has returned to square zero.

It’s difficult to convey all the time and effort that goes into having the prosecution, defense, translators, analysts, etc., at Gitmo. And the security involved in moving someone like Mohammed and the other 9/11 planners is what you would expect: A massive undertaking that basically shuts down the entire place. Yet when everyone is present in court and there’s an opportunity to resolve issues and move toward a trial, little, if any, progress is made.

I didn’t talk with the victims’ families. I don’t know what their expectations or goals were in traveling there. But if it was to achieve some kind of closure, they have to have left bewildered and disappointed.

I didn’t talk with the victims’ families. I don’t know what their expectations or goals were in traveling there. But if it was to achieve some kind of closure, they have to have left bewildered and disappointed.

The question everyone asks is why is this taking so long? The short answer is that this is the largest case in U.S. criminal justice history, with 2,779 victims and hundreds of thousands of documents, witnesses and evidence across many continents. Also consider that while only a small percentage of the evidence is classified, that’s a small percentage of hundreds of thousands of documents. That’s a lot of classified documents. Add to that the manner by which the U.S. government determines what information is classified: Put mildly, said process is quirky, cumbersome and slow.

Another oft-asked question is why military commissions? Military commissions fill a space between traditional military courts-martial and federal court trials. The exigencies of combat limit the ability of the military to collect and process evidence in a way that would be admissible in a traditional setting.

For instance, if four U.S. Army soldiers in Afghanistan capture a member of al-Qaida you can expect they’ll immediately try to question him while pointing loaded weapons at him. That’s simply a battlefield reality and necessity. Admittedly, pointing a weapon at someone while yelling a series of questions is coercive, and likely not admissible at a courts-martial or federal court. In addition, the manner in which the soldiers collect evidence is not as rigorous as the FBI and CSI.

But some Gitmo detainees were captured by the FBI or CIA, not the military. In some minds that undermines the rationale of military commissions. To others, the issue of who is captured where doesn’t matter: the U.S. is fighting members of al-Qaida wherever it finds them.

A key factor in all this is the manner in which the U.S. treated some of the detainees — a manner that went well beyond the inherent coercion of battlefield capture and questioning. As President Obama recently acknowledged, “We tortured some folks.” And if the actions didn’t constitute torture, they may have included cruel, inhumane or degrading treatment (CIDT), which violates the Geneva Conventions.

As President Obama recently acknowledged, “We tortured some folks.” And if the actions didn’t constitute torture, they may have included cruel, inhumane or degrading treatment (CIDT), which violates the Geneva Conventions.

It’s unclear how the military commission will account for the accused 9/11 planners potentially having been tortured. It’s important to know that military commission rules don’t allow the government to use, directly or indirectly, any statement obtained through torture or CIDT. A notable result of that: What would have been a joint 9/11 trial of six al-Qaida members is now a trial of five.

The U.S. treatment of the sixth accused 9/11 planner, Mohammed al-Qatani (who purportedly tried to be the 20th hijacker), included severe isolation, exposure to cold, sleep deprivation and forced nudity — all of which, according to the U.S. government, left him in a “life-threatening situation.” Given that, and the fact that most of the evidence against al-Qatani was the product of torture or CIDT, the U.S. decided to not send his case to trial.

We’re reminded of this awkward fact by how the military commissions’ courtroom is outfitted within the $12 million Expeditionary Legal Complex. When the courtroom was built, the plan was to have the 9/11 trial include al-Qatani. Thus there are six defense tables, with one left conspicuously empty.

The military courtroom at Camp Justice.

Our group, including members of the media, non-governmental organizations and 9/11 victims’ family members, witness the proceedings in a small sound-proofed room separated by a clear partition at the back of the courtroom. Though a couple of TV monitors allow us to see the proceedings in real-time, the most challenging aspect of observing the commissions is, for security reasons, having to get the audio on a 40-second delay.

While we’re there, four of the five 9/11 planners on trial are wearing head scarves in support of Palestine in the ongoing Israeli-Palestinian conflict. We watch a weird moment unfold during a break, when one of the accused offers an extra headscarf to the planner not wearing one. A lot of confused gesturing unfolds across the defense tables, leading some in our group to liken it to a situation in which one person obviously didn’t get the company’s dress memo.

We also see that 9/11 planner has several detailed military defense counsel, as well as “learned counsel” — an attorney experienced in death penalty cases.

By the week’s end the military judge recessed the commission until October. It’s unclear whether the next time it convenes the proceedings will transpire any differently than what we’ve observed. If history is any indication, the answer is, unfortunately, no. Like Sisyphus, doomed to perpetually push the same boulder up the same hill every day, there’s a kind of “road to perdition” aspect to all this.

When we weren’t in court (which was the vast majority of time), we met with counsel for both the defense as well as the prosecution, and both were very generous with their time. We also sat in on two press conferences. This reminds me of my largest takeaway from the week: How press conference content is delivered and how the media seems to perceive and process it.

As it stands now, the defense and their attorneys, who are arguing for liberty and American values, are in sole position of the moral high ground, despite the fact they are representing individuals alleged to have killed nearly 3,000 people.

 As it stands now, the defense and their attorneys, who are arguing for liberty and American values, are in sole position of the moral high ground, despite the fact they are representing individuals alleged to have killed nearly 3,000 people.

When not discussing the detainees’ trial and/or treatment, we have time to take in the setting. The water around Gitmo is amazing, with two and three different shades of blue. In the absence of a city setting, the skies at night are filled with stars, and with a certain type of plankton in the water there, it almost looks like fireflies are dancing under water. But then the reality of where we are returns.

During the day, our escorts continue to drive us around Gitmo — mostly to the dining facility or navy exchange store. We meet locals who talk about what a safe place Gitmo is for raising a family, which is an odd thought, especially as I see a little girl, eyes beaming, leave the exchange with a new doll. Afterward we pass green energy sources while traveling to meet with a defense counselor in an office of the Gitmo gym. It occurs to me then that Gitmo is an onion of sorts, with layer upon layer of the surreal.

Despite the time and cost expended on this place thus far, the American people don’t realize the commissions really haven’t even started. They don’t realize how much more is still to come, how long that will take and how expensive it will be, at least if detention and commissions remain at Gitmo.

Despite the time and cost expended on this place thus far, the American people don’t realize the commissions really haven’t even started. They don’t realize how much more is still to come, how long that will take and how expensive it will be, at least if detention and commissions remain at Gitmo.

For example, the 9/11 trial won’t be for at least another year. Then, the appeals that are certain to follow will take more than a decade. Now consider that the detainee population at Gitmo ranges from as young as 30 to as old as 67. That means that the U.S. may be detaining members of al-Qaida for 50 years to come. And at a staggering cost.

According to recent government reports, the cost per year to operate just the detention facilities at Gitmo is $454 million a year (and so far has cost the U.S. more than $5 billion). That breaks down to $2.7 million per detainee per year. Compare that to the roughly $78,000 a year to incarcerate someone in a maximum security prison in the U.S.

In anticipation of increasing medical needs of the aging detainees, the Department of Defense is requesting about $11 million for a medical facility best equipped to offer geriatric care for aging al-Qaida members from now until beyond 2050.

Does the U.S. really want to continue down that path? And, more important, does it even recognize the path it’s on? — C.J.

SMU Dedman School of Law Prof. Chris Jenks visited Naval Station Guantanamo Aug. 11-15. This is the fourth blog of the series.

Before the 9/11 attacks, if someone knew about Naval Station Guantanamo Bay it was likely for one of two reasons:

• The 1992 movie “A Few Good Men,” in which Jack Nicholson, playing the part of Marine Col. Nathan Jessup assigned to Gitmo, spoke of eating breakfast “300 yards from 4,000 Cubans trained to kill me” and whether Tom Cruise could or couldn’t handle the truth.

• The role Gitmo played as refugee camps, first for Haitians and later for Cubans from 1991 to 1996.

Haitian refugees, 1991

While “A Few Good Men” was entertaining, Gitmo’s role as a refugee camp was more significant, since it established the conditions for future detention of al-Qaida and Taliban members.

In 1991, a military coup d’etat in Haiti prompted thousands of Haitians to flee the country in hopes of reaching the U.S. The U.S. Coast Guard intercepted some 41,000 of them and redirected them to Gitmo. As a result, the U.S. constructed a series of camps at Gitmo to house the refugees while considering the Haitians’ asylum claims.

The U.S. deemed many of the refugees to be economic migrants, not political refugees, and returned them to Haiti. Even more controversial was the status of the refugees who qualified for asylum but were denied entry into the U.S. because they were HIV-positive. This generated considerable backlash, and ultimately litigation. It wasn’t until late 1993 that the Clinton administration agreed to close the camp and allow the remaining Haitian refugees to enter the U.S.

Refugee camp at Gitmo, 1990s

About a year after the detainment camp closed, it was reopened, this time for an influx of Cuban refugees. After a series of anti-government protests in Havana, Fidel Castro allowed anyone wanting to leave Cuba to do so. Some 100,000 Cubans did just that, and headed to Gitmo on homemade rafts, boats, even inner tubes — traveling there by sea to avoid the landmines separating Gitmo from the rest of Cuba. (Interesting aside: Both the U.S. and Cuba have planted 55,000 mines along the perimeter of Gitmo, making it the largest minefield in the western hemisphere and second-largest in the world [Korea being the largest]. In 1998 President Clinton directed the removal of U.S. mines. The Cubans have yet to remove their mines.)

With the U.S. again in the business of housing and processing refugees at Gitmo, a series of camps were built. The military, ever fond of the phonetic alphabet, named the first camp “Alpha,” then “Bravo,” “Charlie,” etc. There were camps for families, camps for single men, camps for kids without parents. There was even a camp for those who caused problems in the other camps: Camp X-Ray.

Camp X-Ray, 2002

Unlike the communal-style refugee camps, Camp X-Ray was a tougher confinement facility, with barbed wire atop chain link fences, guard towers and chain-link housing areas for the refugees. After the Cuban refugee crisis was resolved, the U.S. closed the camps in 1996. But fast-forward to January 2002 — three months after the U.S. invasion of Afghanistan following the 9/11 attacks: With the U.S. fighting in Afghanistan, and in the process capturing enemy belligerents, the question of where to house the detainees arose. The answer, for reasons we may never fully understand, was Gitmo.

So, here we are.

Capturing enemy belligerents is part and parcel of armed conflict. Each side’s military may capture and detain the other side’s combatants for the duration of the conflict. And typically, housing those who are captured away from the battlefield doesn’t pose a problem. During World War II, America housed hundreds of thousands of German and Italian prisoners of war in camps in the U.S.

In this case, real problems arose when the U.S. unwisely (and incorrectly) decided that no part of the Geneva Conventions applied to or protected members of al-Qaida and the Taliban. The Geneva Conventions form the basis of military regulations, training and manuals for detention operations, so excluding them created both a legal and practical void, one later recognized as incorrect or impermissible by the U.S. Supreme Court.

The U.S. military filled this void with “enhanced interrogation techniques” that allowed for a variety of actions against the detainees, including stripping them of clothes, 24 straight hours of interrogation and stress-inducing exploitation of their phobias. Even worse, the CIA introduced a host of other techniques that included waterboarding, per the guidance of the Department of Justice. While some of this mistreatment occurred outside Gitmo, some of it most assuredly occurred at Gitmo, beginning at Camp X-Ray.

Detainees at Gitmo’s former Camp X-Ray

One of the iconic images from the “Global War on Terror” (above) shows detainees at Camp X-Ray, which the U.S. initially utilized to hold al-Qaida and Taliban detainees for four months. (So now if you see the upcoming movie “Camp X-Ray,” starring “Twilight” actress Kristen Stewart, and hear about the plan to house detainees there for eight years, you’ll know that’s not correct.)

During this time the U.S. purportedly so abused Saudi detainee Mohammed al-Qahtani, who allegedly tried to participate in the 9/11 attacks, that he was left in a life-threatening situation. This led to the first U.S. government acknowledgment of torture at Gitmo. And it raises the difficult issue of what to do with al-Qahtani. Since 2002 and the short-lived use of Camp X-Ray, the U.S. has built a series of more permanent (and more expensive) “camps” to house al-Qaida and Taliban detainees.

The U.S. is well past the chain-link fence origins of Camp X-Ray: “Camps” are now state-of-the art facilities similar to maximum-security prisons in the U.S. Depending on each detainee’s security classification and how “compliant” that person is, current conditions at Gitmo include allowing them access to DVDs, television and a new $744,000 soccer field.

Meanwhile Camp X-Ray, while closed, still exists. Well, kind of. The U.S. government had planned to demolish it but a federal district judge ordered it preserved as potential evidence of cruel, inhumane, degrading treatment or torture of the detainees once housed there. Currently Camp X-Ray is slowly rotting away in the Cuban heat.

Camp X-Ray’s deterioration

While the U.S. has released or transferred more than 600 detainees, some 149 remain. Some are being tried by military commission, some are awaiting military parole-type hearings, and some have been cleared for transfer but can’t leave due to issues between the U.S. and the country where they would go. And then there are those whom the U.S. has no plans to transfer or prosecute. — C.J.

Next Up: Military Commissions and the Road Ahead: The Cost of Justice.  

1st Marine Battalion raising the U.S. flag at Guantanamo Bay on June 10, 1898

SMU Dedman School of Law Prof. Chris Jenks is visiting Naval Station Guantanamo Aug. 11-15. This is the third blog of the series.

Naval Station Guantanamo Bay (“Gitmo,” for short), at the southeastern tip of Cuba, is not only the United States’ oldest overseas military base but it’s also the only one to exist in a country with which the U.S. does not have diplomatic relations.

The story behind the U.S. presence there dates to the 1898 Spanish-American War.

Given U.S.-Cuban relations now, it’s worth remembering our country’s invasion of Cuba at that time was in support of a Cuban insurgent movement rebelling against their colonial occupiers: Spain. Following the war, the U.S. helped establish the new Republic of Cuba. In turn, in 1903 Cuba agreed to lease 45 square miles of area now comprising Gitmo in exchange for $2,000 in gold coins per year. In response the U.S. agreed to use Gitmo as a coaling and naval station, and also allow free passage of vessels engaged in Cuban trade.

Three decades later the agreement was further outlined in the 1934 “Treaty Between the United States of American and Cuba” signed by President Roosevelt and his Cuban counterpart. As part of the revised terms, the payment (rent, actually) was recalculated on what $2,000 in 1903 gold coins would be worth in 1934, or roughly $4,085 — a fixed amount the U.S. has paid ever since.

Given our countries’ mutual dislike of each other, how this treaty manages to exist as-is lies in the treaty itself, specifically Article III, which notes that the treaty is to remain in effect “[u]ntil the two contracting parties agree to the modifications or arrogations.” So in essence the U.S. has a rent-controlled lease with a mutual break-up clause.

Following the Communist revolution and Fidel Castro taking power in 1959, Cuba’s attitude toward the U.S. and its Gitmo lease has changed, to put it mildly. Specifically, the Cuban government has refused to cash its U.S rent checks for more than 55 years. Castro literally has stuffed the un-cashed checks in his desk drawer (though he does acknowledge accidentally cashing one in 1959).

In early 1961, the U.S. terminated diplomatic and consular relations, with President Eisenhower issuing a statement that the termination had “no effect on the status of our Naval Station at Guantanamo. The treaty rights under which we maintain the Naval Station may not be abrogated without the consent of the United States.”

The U.S.-sponsored Bag of Pigs invasion of Cuba that same year and the Cuban Missile Crisis in 1962 didn’t exactly improve relations between our countries. Accordingly, it’s interesting to think that during those two dangerously dramatic events there were several thousand U.S. service members stationed at Gitmo, which Castro called “a knife stuck in the heart of Cuba’s dignity and sovereignty.”

In 1964, in response to the U.S. fining Cubans for fishing too close to Florida, Castro cut off Gitmo’s water supply for three days. (Apparently sponsoring an invasion of Cuba didn’t warrant turning off the water, but Cuban fishermen being fined crossed the line.) Castro then turned the water back on, but claimed the U.S. had been stealing the country’s water. Afterward, Gitmo’s base commander John Bulkeley devised a simple solution to that: He cut off Gitmo’s water supply lines from Cuba. Out of necessity this led to Gitmo becoming self-sufficient, ultimately creating its own systems to collect and convert sea water to fresh water. [Military history aside: Vice Admiral Bulkeley had received the Medal of Honor in World War II and commanded the PT boat that evacuated Gen. Douglas MacArthur from the Philippines.]

Over the years, many military and diplomatic escalations have occurred between the two countries. And while political difficulties continue, the military relationship has stabilized. But this wasn’t always the case.

Early on, the Cuban military began throwing rocks onto the tin roofs of the U.S. Marines’ sleeping barracks, prompting the Marines to build a 40-foot high fence. The Cubans then hung metal objects on the fence to clatter in the wind, prompting the Marines to add barbed wire to the fence. Both sides then erected ever-taller flagpoles, with Cuba technically winning that competition by planting a giant flagpole on a significant ridge.

In addition, the Cubans also enlisted a high-powered spotlight to shine into the windows of the Marines’ barracks. In turn, the Marines erected a giant tent as a light shield. (Or so the Cubans thought.) Thirty days later, when the Cubans turned on the spotlight, the Marines dropped the tent, revealing a giant Marine Corps globe and anchor symbol on a concrete slab. Needless to say, the Cubans turned off their spotlight.

Cuba began availing itself of the media to complain about the U.S. presence at Gitmo. In the mid-1970s the Cuban Ministry of Foreign Affairs published an 86-page booklet, “Guantanamo: Yankee Naval Base of Crimes and Provocations.” Shortly thereafter, during a 1977 Barbara Walters interview with Castro, discussion of the 1934 treaty led the Cuban leader to argue “when one mentions an undetermined length of time in a legal contract, it’s understood that it means 100 years.” Regardless, both Cuba and the U.S. understand that the agreement will continue to exist until both sides agree to modify or repeal it.

More recently the Cuban government has complained to United Nations human rights organizations that the U.S. use of Gitmo as a detention facility is itself a human rights violation. That’s a rather odd complaint coming from Cuba, since while Gitmo is used to hold al-Qaida and Taliban detainees, Cuba first used the place to detain thousands of Cuban “excludables” or refugees. — C.J.

Next Up:
Camp X-Ray: From Cuban Refugees to al-Qaida and Taliban Detainees