Once the war court revealed that a secret censor had silenced a defense lawyer arguing at hearings in the 9/11 case, the question became what other Guantánamo secrets was the military covering up?
How many hidden hands had the ability to censor the court by remote control? What intelligence agencies did they represent? Are they at this remote base — or reaching into the court called Camp Justice from U.S. soil?
“We’re not going to get into the specifics of any security protocols,” said Army Lt. Col. Todd Breasseale, the Pentagon’s spokesman for the war court.
Up next at the death-penalty trials is whether U.S. intelligence agencies, or the military, are also listening in on defense lawyers’ confidential conversations. Accused 9/11 mastermind Khalid Sheik Mohammed and his alleged four accomplices are back in court on Feb. 11, but defense lawyers want an emergency hearing on eavesdropping before Monday’s pretrial hearings in the USS Cole bombing case.
Guantánamo, meantime, gives up its secrets slowly.
And in surprising ways — like the 500-pound training bomb that Superstorm Sandy churned up in the bay in October.
It took the same storm to find out that the base’s marina for troops taking a social sail off the coast of Cuba was valued at nearly $8.9 million. Sandy washed away its pier, along with six recreational sailboats. But the base still won’t say whether it got money to buy new sailboats in Congress’ $50.5 billion Sandy bailout bill.
Now defense attorneys want to test the prison camps’ motto of “safe, humane, legal and transparent” detention with a 48-hour sleep-over at Guantánamo’s crown jewel of secrecy — Camp 7. That’s the lockup where a clandestine unit called Task Force Platinum keeps the Sept. 11 accused and other men who were held for years in the CIA’s overseas prisons.
“You want to sleep with your client?,” Judge James Pohl asked a defense lawyer on Tuesday, to the snickers of spectators.
Not with the client but nearby, said Navy Cmdr. Walter Ruiz, attorney for Mustafa Hawsawi, a Saudi man accused of helping the Sept. 11 hijackers with funding and travel to the United States.
Plus, Ruiz wants follow-up visits every six months.
In the military, harsh pre-trial conditions could create what lawyers call a mitigating factor as they argue against these men getting the death penalty if convicted of plotting the worst terror attack on U.S. soil. These defense lawyers say their clients were tortured in U.S. custody, and the Pentagon has lost the moral authority to execute them.
To gather evidence, the defenders want a two-night stay at the lockup and are asking Pohl to put a protective order on what’s left of the “black sites” where the CIA waterboarded Mohammed 183 times and interrogated all five 9/11 accused before they got to Guantánamo in 2006.
Prosecutors countered with an offer of a two-hour escorted tour of Camp 7.
It’s so secret that, outside the military, only members of Congress are known to tour it. In February 2009, a trio of members from Texas reported they got to peer through one-way glass to watch Mohammed inside a stark cell, kneeling on a prayer rug with head bowed.
But to this day the Pentagon won’t divulge to taxpayers how much they paid to build it, what builder got the contract, or when.
Now the defense lawyers want 48 hours inside the place, to draw sketches or take pictures, to interact with their clients. All that information starts out Top Secret —defense lawyers have high-level security clearances like the prosecutors. But the judge could allow some details to come out in court.
Prosecutors say the a two-hour tour would let the lawyers visit their clients’ cells, once the accused 9/11 conspirators are taken away.
Navy Cmdr Kevin Bogucki, attorney for an alleged plot deputy, Ramzi bin al Shibh, compared the proposed trip to the Jungle Cruise at Disneyland. Visitors ride past animatronic hippos and elephants, seeing precisely what management wants them to see.
Judge Pohl likened the idea to “an open house but the family is not there so you don’t know how things are day to day.”
Defense lawyers say 48 hours gives them an idea of what it’s like when the guards are on their very best behavior. Nobody in court suggested that the guards can sustain it for just two hours and not 46 more.
But veteran defense attorney Jim Harrington of Buffalo came closest.
He told the judge he’d defended a civilian guard who was accused of killing a prisoner after captive spit on captor at Attica — and got enough access in trial preparation to “go see the corners where you could take people to beat them.”
“We not only have to have an intellectual understanding of something, we have to have an emotional feeling for it,” he told the judge.
Episodes that embarrass won’t be hidden because they embarrass, says Army Brig. Gen. Mark Martins, the Pentagon’s chief war crimes prosecutor. But America is still waging a war on terror, he reminds, and some information can help the enemy.
So transparency is a pick-and-choose process at Guantánamo.
This week, the judge announced that he alone will choose when to close court, with the help of a security officer at his elbow who can mute the audio feed of open proceedings to the outside world.
Now he gets to decide if defense lawyers get a two-hour tour or a two-night sleepover at Guantánamo’s secret prison. If Pohl writes out his ruling, the intelligence agencies get up to 15 work days to scrub it before posting it on the place the public can see — the Pentagon war court website beneath the motto “Fairness * Transparency * Justice.”
Unless, of course, the judge chooses to rule aloud —in open court.