GUANTÁNAMO BAY, Cuba — For hearings in the destroyer Cole bombing case this month, the Guantánamo war court was mostly empty. Skeletal teams for the prosecution and the defense sat in the cavernous chamber, silently watching an 80-inch screen over the witness stand.
On it lawyers argued and witnesses testified from a secret courtroom 1,300 miles to the north outside Washington.
A former C.I.A. interrogator showed the military judge how he confined the Saudi prisoner in the case in a box at a “black site” in Thailand. A former F.B.I. agent testified about gathering up the remains of the 17 sailors who were killed in Al Qaeda’s bombing of the Navy warship off Yemen in 2000. A forensic psychiatrist disputed the lasting effects of torture.
The judge and the defendant watched on live video.
After the Sept. 11 attacks, the George W. Bush administration created a war crimes court at Guantánamo to be out of reach of the U.S. courts. But now, increasingly, lawyers are examining witnesses and making arguments in the remote annex — four miles from the Supreme Court and 10 miles from C.I.A. headquarters in Langley, Va.
The annex was set up during the coronavirus pandemic when the Navy base commander placed all legal staff members under 14-day quarantine upon arrival at Guantánamo Bay. Each person bound for court was confined to a cramped metal trailer, with soldiers and security cameras monitoring all movements.
The remote chamber became a necessity. Witnesses reluctant to travel to Cuba cannot be compelled to do so, but they can be subpoenaed to the annex, in Crystal City, Va. Someone can testify and go home the same day rather than spend a week at the base between air shuttles.
Having most staff members and witnesses participate remotely, as happened during the hearings this month, also eases the stress the court puts on the base of 6,000 residents. Guantánamo, behind a Cuban minefield, relies on the United States for its services — from communications via a fiber-optic cable from Florida to health care, food, fuel, household goods, even entertainment.
But some lawyers worry that remote testimony and presentation of evidence become too sterile. Nuances are lost, they say, depriving a prisoner of a right to meaningfully confront an accuser — a question the U.S. Supreme Court is being asked to take up in an appeal of a bank fraud conviction that featured testimony by videoconference during the pandemic.
At Guantánamo, the trial in the Cole case has yet to begin. The judge is hearing from witnesses as he weighs what hearsay evidence can be used against the defendant, Abd al-Rahim al-Nashiri, who is accused of plotting the bombing of the warship in Oct. 12, 2000.
Some lawyers also argue that a Guantánamo trial relying on video-stream testimony from the United States undermines one reason the Bush administration set up the court at the base in the first place: to keep it out of reach of the Constitution.
Because the hybrid federal-military court is not on sovereign U.S. soil, one untested theory goes, foreign prisoners tried there are not entitled to the same protections as criminal defendants in the United States — even in a death penalty trial such as Mr. Nashiri’s.
The Guantánamo court was established to try foreign prisoners who were captured around the world in the war against Al Qaeda. Intelligence gathering was a priority; trials were almost an afterthought. Prosecutors at the military tribunals rely on unusual evidence, including overseas interrogations of prisoners who had earlier been tortured or subjected to other cruel and degrading treatment.
“Having part of the proceedings take place in the U.S. might undermine the government’s claim that the proceedings are outside the scope of the Constitution because they are taking place in a foreign country,” said David Glazier, a law professor at Loyola Law School in Los Angeles who spent two decades in the Navy before becoming a lawyer.
He also questioned whether remote testimony does a disservice to the finder of fact, in this instance the judge and later a jury of military officers. “It seems to me that the panel needs to be able to assess the credibility of the witnesses for themselves,” he said. “It definitely is a lot harder to do that over video than in person.”
Michel Paradis, who for years has handled civilian court appeals of Guantánamo Bay cases, said the use of the courtroom annex “puts the lie to something that already was a legal fiction” — that because the U.S. military court is in an American-controlled corner of Cuba, “the Constitution imposes no meaningful restraint because the proceedings are conducted on foreign soil.”
A former chief prosecutor, Brig. Gen. Mark S. Martins, long argued that military commission trials could be held in the United States if Congress would allow the transfer of prisoners at Guantánamo to U.S. soil.
Either way, live testimony has been increasingly shifting from Guantánamo to the satellite chamber, a classified, eavesdropping-proof conference room that was retrofitted for $2.5 million to mirror the courtroom itself, minus a jury box and a judge’s bench. It has tables for five separate defense teams for the five prisoners charged as conspirators in the hijackings that killed nearly 3,000 people on Sept. 11, 2001.
That trial has not started either; after years in pretrial hearings, plea negotiations are underway.
The annex is off limits to members of the public, who can watch from a conference center at the Pentagon, a room at the Fort Meade military base in Maryland or in person if they reach Guantánamo.
In May 2021, the chief prosecutor promised “an array of technological equipment allowing for near seamless integration of remote participation.” Legal teams would “virtually participate in all aspects of commissions proceedings,” he wrote in a pleading.
On the third day of the testimony of John Bruce Jessen, a psychologist who waterboarded prisoners for the C.I.A., virtual participation went like this:
People in the Guantánamo chamber watched on a screen while defense lawyers set up a 30-inch-tall plywood box before a camera in the remote courtroom. Dr. Jessen showed how he used it on the Cole case defendant. Mr. Nashiri’s role was played by one of his lawyers, Annie Morgan.
“Annie, you’re not being helpful,” Dr. Jessen said. “We’re going to give you time to think about this. Get in the box.”
Ms. Morgan sat on the floor, slid inside the box, ducked her head and wrapped her arms around her knees. Someone playing a guard shut the door.
The judge and observers at Guantánamo could watch in real time, on the screen displaying the crowded Virginia chamber, that demonstration and another showing how interrogators grabbed and slapped Mr. Nashiri in 2002.
But on at least six other occasions, a security officer triggered a mute button during Dr. Jessen’s testimony, to prevent observers from hearing anything that might be classified.
Source : Nytimes
