The judge has set next January to begin jury selection in the long-awaited trial of 5 men accused of plotting the terrorist attacks. But big logistical challenges remain.
This article was produced in partnership with the Pulitzer Center on Crisis Reporting.
After a 7.7-magnitude earthquake struck in the Caribbean, the Navy captain in charge of this remote Pentagon outpost declared a tsunami warning. Word reached the base school and boats on the bay but never got to the war court, where pretrial hearings were underway in the case of the 5 men accused of plotting the Sept. 11, 2001, attacks.
“It was a significant logistical problem that nobody in the court knew,” James G. Connell III, a defense lawyer who had ducked under his courtroom table when the first temblor rolled through, protested to the judge the next day.
Col. W. Shane Cohen, the military judge, has scheduled jury selection for the death-penalty trial to begin early next year. It will be by far the most prominent and complex legal proceeding in the nearly 2 decades since the first prisoners arrived at the base. And Guantánamo is not yet ready.
Extending the emergency early-warning system to the courtroom is among the more straightforward tasks on the base’s to-do list. Dealing with a substantial influx of people to the base — potential jurors, legal teams, journalists and relatives of victims, among others — is among the biggest. Flights and housing have to be sorted out, including where to stage hundreds of would-be jurors and then, once chosen, where to sequester the jury of 12 military officers plus alternates for what is projected to be a 9-month trial.
One idea under consideration is to lease a “berthing barge” for the jurors. It could be tied up in the port and use base power, water and sewage — and then sail away if Guantánamo is in the path of a hurricane, an annual seasonal concern. Negotiations are still underway between the Pentagon headquarters of the war court and the base commander on what facilities and services the Navy will make available for the trial. For past trials, the court kept jurors in a hotel on the remote, underdeveloped Leeward side of the base and shuttled them each day across the bay in a utility boat provided by the base. But the site is now designated as a potential shelter for people from around the Caribbean in the event of a humanitarian disaster, leaving uncertain whether that part of the base will be available.
The legal teams of the five defendants are expanding, and the new staff members will require security clearances, a monthslong process. Some proposed witnesses and consultants will require security checks and clearances too. Given the risk of hurricanes and other natural disasters, evacuation plans have to be devised, and the judge has asked prosecutors to ensure that military service members who wind up on duty here for the duration of the trial continue to draw their stateside housing allowances.
Managing health issues is a particular concern. The prosecution is planning for frail and elderly family members of victims of the Sept. 11 attacks to be among the people it shuttles to the base weekly to watch the proceedings.
But Guantánamo is remote and its small, community-style hospital evacuates most complicated cases to the United States. A year ago, Colonel Cohen’s predecessor, Col. Keith A. Parrella, waited 16 hours for a medevac flight to emergency eye surgery in Miami after the base hospital said he had a detaching retina.
Although the court has been functioning since 2004 in the same place — a cracked, damaged obsolete air field behind an Army checkpoint — the weather periodically overwhelms operations, even when relatively few people are present.
Latrine trailers flood in summer tropical storms. Last summer, people at the court waded through excrement until some Air Force engineers on temporary duty at Guantánamo hammered together wooden pallets for people to walk on. Driving rain on the court’s corrugated metal roof drowns out the proceedings, forcing a recess. Unusually strong January winds shredded netting fastened to razor-wire-topped fencing around the court.
There is still doubt about when the trial will begin. There are complex legal issues being litigated, and the calendar of hearings for the rest of 2020 is already tight. Appeals of fundamental issues to the war court review panel or federal courts could cause delays. But if the schedule sticks, the proceedings should begin early next year against Khalid Shaikh Mohammed, who is accused of being the mastermind of the Sept. 11 plot, and four men accused of being his accomplices.
Some notable court participants, including the judge, some lawyers, witnesses and relatives of the Sept. 11 victims are currently housed in a former four-story barracks for enlisted sailors, essentially one-room, motel-style accommodations. The building is a two-minute walk to the Officers Club, a small bar where, recently, both the psychologists who waterboarded a Guantánamo prisoner for the C.I.A. and the prisoner’s lawyer visited at the same time.
So the judge has ordered a plan for how to minimize interaction among certain participants of the trial during the long months on the cramped base, which has one McDonald’s, 2 bars, 3 Navy cafeterias and a fine-dining restaurant where court participants often rub elbows at the all-you-can-eat $16 Sunday brunch buffet.
Other people attending the trial, including interpreters, military paralegals, court stenographers, journalists and legal observers, are housed in a crude trailer park and tent city behind the courthouse, which may have to be expanded.
More construction is under consideration, including shipping modular construction to the base by barge and adding closed-circuit feeds of the proceedings to defense and prosecution offices in Virginia, so some legal staff members can work remotely.
Court spokesmen said no plans were final, and no cost estimates were available.
Even the plan for handling journalists is in flux. The judge has ordered prosecutors to tell him how the Pentagon will handle interest by the news media, which is expected to swell with the start of a trial.
For years, reporters worked out of several wooden sheds that the Navy built inside an old hangar near the courthouse, including a $49,000 staging site for news conferences that transmitted briefings to the United States for journalists not present at Guantánamo. But the roof has been declared unstable and the hangar off-limits to reporters, leaving safe work space for perhaps 20 journalists, down from 60 when the defendants were arraigned in 2012.
Also yet to be decided is how to handle the family members of the 2,976 people who were killed in the Sept. 11 attacks, and a recent expansion of the victim-witness program to include the relatives of rescue workers who subsequently died of diseases related to working at the site of the destroyed World Trade Center.
Last year, trial planners kicked around the idea of, for the trial, eliminating the current system that permits the prosecution to host up to 10 family members and companions at Guantánamo during hearing weeks. Instead, the Office of Military Commissions would pay for transportation, rooms and meals at a viewing location in the United States.
That idea is no longer under consideration, people involved in the process say, but the military is considering adding more closed-circuit viewing sites for family members.
Currently, family members of victims can watch the proceedings at military bases in New York, Maryland, Massachusetts and Virginia. Expansion is under consideration to the West Coast, where all four of the planes that were hijacked on Sept. 11 were bound, and to Florida, where some family members have retired.
Source: nytimes.com, Carol Rosenberg, February 9, 2020
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but by the punishments that the good have inflicted." -- Oscar Wilde
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