Night Court at Guantánamo?
In a first, military judges have double-booked this base’s lone expeditionary, maximum-security courtroom on 39 separate days next year, begging the question:
Is the crude war court compound called Camp Justice capable of holding night court?
The idea emerged in a pretrial hearing in the Sept. 11 case when the chief judge, Army Col. James L. Pohl, pointed out that the compound currently has one functioning court — and somebody needs to figure out how to accommodate a 2018 court calendar with hearings in two cases being heard on the same day.
The U.S. government chose to pursue war crimes cases “down here,” Pohl announced from the bench. Now it is obliged to provide appropriate housing and “most significantly, an appropriate facility that permits the cases to be handled in an appropriate manner.”
Then he offered a stern warning to prosecutors of the 9/11 capital conspiracy case against five men accused of plotting the Sept. 11, 2001 hijackings that killed 2,976 people from New York to Pennsylvania to the Pentagon:
“This case will not be night court, OK?”
Left unsaid was that, in past years, judges have scheduled full weeks of hearings only to cancel them, sparing the Pentagon the logistical challenge of mounting an airlift of court personnel from Andrews Air Force Base to Guantánamo. But Pohl did not rule out the possibility of a second war court shift at Guantánamo, where military judges are handling a total of five cases, including the death-penalty prosecution of the alleged USS Cole bomber, Abd al Rahim al Nashiri.
Pohl first raised the possibility of nighttime sessions in March. He questioned what type of “burdens this would put on the guard force if you had an extended period of time.” At the national security court, troops in battle dress on mostly nine-month deployments serve as bailiffs, marshals and police at the court and shuttle the captives between the court and prison, which is on a different part of the base.
Several American cities have offered night court to ease the pressure on overburdened court systems. New York City courts handle arraignments until 1 a.m., a fact caricatured in in the long-running ’80s and ’90s situation comedy, “Night Court.” Houston has traffic court until 10 p.m. Nashville has a night court to handle bond hearings.
And Camp Justice had its own version on May 5, 2012. On that day Pohl presided at the Sept. 11 case arraignment, which stretched from 9:23 a.m. to 10:28 p.m., in part because one of the accused 9/11 plotters refused to waive a reading of the charges.
But that was long before the USS Cole case judge held a secret session, in December, to hear from the prison warden on the dangers of letting defendant Nashiri spend nights in Camp Justice’s cells. What Army Col. Steve Gabavics said is not known. He did, however, persuade Judge Air Force Col. Vance Spath to rule against overnight stays for the Saudi who complains the commute from prison to court makes him sick.
“Some of it seemed more fanciful in worry than realistic in worry,” Spath later said of Gabavics’ classified testimony. To which case prosecutor Mark Miller replied: “If somebody had said on September 10, I’m going to put up some sort of a barrier around the World Trade Center because I think an airplane is going to fly into it and kill 3,000 people, people would have said they were nuts.”
Against the backdrop of those mostly clandestine security concerns, the judges recently put out the most ambitious calendar in the decade existence of the court. They scheduled 190 to 240 days of hearings, depending on whether they hold weekend sessions, something that has been done at Guantánamo. That daylong arraignment of the so-called 9/11 Five took place on a Saturday. And Pohl heard video-link testimony from a former Guantánamo prison psychiatrist on a Sunday morning.
Now next year’s schedule has 39 instances of judges double-booking the national security chamber, starting on Jan. 16 with simultaneous hearings in the USS Cole and Sept. 11 capital cases.
Camp Justice currently has no capacity to hold simultaneous sessions. Not even for low-value detainees, who were once brought to the court’s iconic hilltop courtroom. That chamber, in a building found to contain asbestos packed into its floor tiles, is closed and would require renovations to reopen, according to people familiar with war court logistics.
Meantime, they say, one idea to cope with the coming crunch would be to build a single-defendant courtroom, a smaller version of the current court that’s capable of trying six captives at a time. It’s a huge complex, with an unseen real-time translation suite and a small viewing gallery in back that broadcasts the proceedings to spectators on a 40-second delay. These same features would be necessary in the new, if smaller court.
A Pentagon spokesman said it will be up to the new overseer of military commissions, Harvey Rishikof, to decide “on which proposed course of action, if any to implement to address the overlapping schedule of hearings.” However, Secretary of Defense James Mattis would need to approve “any expenditure of funds for new construction, whether completed by military personnel or contractors,” said Maj. Ben Sakrisson, the spokesman.
Still unclear is whether the Pentagon will also need permission from Congress to build something new.
Pohl announced in court in March that “there isn’t sufficient infrastructure to try multiple cases at the same time down here,” and that he expects “the government” to solve this. Generally prosecutors are responsible for many aspects of court logistics — from coordinating with prison staff to deciding who should testify by video-teleconference rather than can come to Guantánamo as a witness.
“I’ve tried a lot of cases in tents,” Pohl told Sept. 11 case prosecutor Ed Ryan in March. “We’re not in that type of environment here.”
Moreover, he said, “saying, ‘Well, we’re going to squeeze you in from 7:00 until midnight because we have not put the resources into building a courtroom,’ takes away from the seriousness of the case.”
Chief Prosecutor Brig. Gen. Mark Martins has not ruled out night court. But he said it would be up to each judge to decide. He recalled at a recent press conference that, when he was a prosecutor at Fort Campbell in Kentucky in 1990, some of his court-martial cases stretched past midnight. Commanders sitting as jurors were eager to get back to their troops, he said.
He made no mention of the potential strain on the prison staff discussed in a secret session.
“There are a few weeks next year where there are some overlaps in proceedings,” the general said, “and we’re just going to have to figure out different ways in dealing with that. Both in the short term and in the longer term.”
Guantanamo’s 5 war court cases
▪ Five men are charged with the Sept. 11 conspiracy, led by alleged 9/11 plot mastermind Khalid Sheik Mohammed. The judge has set no start date for the death-penalty trial but chief prosecutor Brig. Gen. Mark Martins said recently it may be feasible to start in mid-2018. Our trial guide.
▪ Saudi Abd al Rahim al Nashiri is accused of orchestrating the 2000 USS Cole bombing. The judge has said he’d like to start jury selection in the death-penalty trial in 2018. Our trial guide.
▪ Captive Abd al Hadi al Iraqi is accused of running the al-Qaida army in Afghanistan after Sept. 11, a non-capital case punishable by at most life in prison. The judge has set no trial date. Our trial guide.
▪ Ahmed al Darbi is due in court in August for a sentencing hearing on his guilty plea. He agreed to testify as a government witness in the USS Cole case in return for serving his sentence starting next year in his native Saudi Arabia.
▪ Majid Khan pleaded guilty to war crimes and awaits a February 2019 sentencing hearing.