Hearings in the 9/11 death-penalty trial may be held in the Washington area for the first time since the case began, a move some lawyers say would bolster the argument that alleged terrorists are entitled to greater Constitutional protections at Guantánamo trials.
Across six years of pretrial hearings, the lawyers and judge have regularly taken a 1,300-mile flight to this remote base in southeast Cuba where alleged mastermind Khalid Sheik Mohammed and four alleged accomplices are among 40 war-on-terror prisoners.
On Sept. 17, the new trial judge ordered prosecutors to scout for a Top Secret site in the Washington D.C. area to hold closed sessions Nov. 7-9 “in the interest of judicial economy.” The judge, Marine Col. Keith Parrella, cast the stateside location as a solution to a scheduling conflict in Guantánamo’s only maximum-security court chamber.
But while the hearings will be closed and classified, some lawyers say, the shift to U.S. soil could strengthen the argument that the accused terrorists are entitled to constitutional rights like confidential attorney-client conversations, to confront one’s accuser, to not be subjected to cruel or unusual punishment, to attend all portions of their trial — some of which the Bush administration sought to deny those tried at the U.S. naval base in Cuba when it set up the war court in the first place.
Center for Constitutional Rights attorney Wells Dixon, whose Guantánamo client Majid Khan awaits sentencing in a war court plea deal, tweeted: “I hope this happens! It would clearly strengthen arguments for application of the Due Process Clause to #Guantanamo trials.”
Death-penalty defense attorney Jay Connell, who represents Mohammed’s nephew, Ammar al Baluchi, said holding hearings in the Washington, D.C., area “shows the illusion of the distinction between having proceedings in Guantánamo and having them on de jure American soil.” Connell said he has no doubt that constitutional protections apply at Guantánamo. Hearings in the Washington D.C. area would only “strengthen the argument.”
National Security Law expert Peter S. Margulies, who has filed briefs in appellate courts supporting war court prosecution positions, said he doesn’t believe a change of venue would matter.
“I read the Military Commissions Act as providing very robust protections. That’s my personal view,” said Margulies, professor of law at Roger Williams University. “But if one believes that the Military Commissions Act is less robust, one could argue that possibly geography does matter and that the Constitution could provide greater protections if the case is held on the U.S. mainland.”
Years ago, the Bush administration chose Guantánamo to hold war-on-terror prisoners, according to former State Department lawyer David Bowker, thinking it was the “legal equivalent of outer space.” The U.S. Supreme Court decided otherwise, notably in the 2008 case Boumediene v. Bush, that gave military prisoners the right to challenge their detention in U.S. civilian federal court, the constitutional protection of habeas corpus.
No case has yet reached the U.S. Supreme Court testing whether Guantánamo Bay detainees are protected by the Fifth, Sixth and Eighth amendments of the Constitution.
Still unanswered in these criminal cases is whether holding the alleged terrorists incognito and without attorneys for three and four years in CIA prisons, subjecting them to waterboarding and other interrogation tactics that forced unusable confessions out of them denied them due process, speedy trials or constituted cruel and unusual punishment.
Also unanswered is whether the Guantánamo war court practice of shielding the identities of potential witnesses from both defense attorneys and the alleged terrorist for national-security reasons violates a war court defendant’s right to confront his accuser or the evidence against him.
The prosecution has argued that the protections provided by Boumediene stop at habeas corpus. Defense attorneys argue that the reasoning of the Supreme Court in Boumediene would apply to criminal defendants in Guantánamo.
If there are convictions, and those kinds of questions reach the Supreme Court, some war court critics argue, the fact that the judge held portions of the hearings on U.S. soil strengthens their argument that a US. military commission can’t strip defendants of basic constitutional protections.
At the 9/11 trial, then-Judge James L. Pohl chose in 2013 not to offer an opinion on what portions of the U.S. Constitution governs the Guantánamo war court.
At the prosecutors’ urging, he said he would rule on “discrete sub issues” as they arise. Pohl also briefly considered holding closed 9/11 hearings near Washington. But he dropped the idea after failing to find a suitable venue. Dozens of defense and prosecution lawyers are assigned to the case of the five men accused of conspiring with the 19 hijackers who slammed passenger planes into the World Trade Center, Pentagon and a Pennsylvania field on Sept. 11, 2001, killing 2,976 people.
A war court judge has held a hearing in the Washington DC area before. Earlier this year, the judge in the non-death penalty case of an al-Qaida commander met with prosecutors and defense attorneys near the Pentagon before the cross-examination of a Saudi captive whose testimony might be used at the trial.
For the November hearings, Parrella noted that the defendants are “not required” to be at those sessions. The five accused terrorists have been universally excluded from closed national-security sessions at Guantánamo since their arraignment in May 2012. Prosecutors say this has happened in federal court practice but defense lawyers have argued for their inclusion, particularly when what is being discussed is about the accused terrorists’ treatment in the CIA prison network.
“I think the arguments were already strong that the Constitution already applies under the Supreme Court’s opinion in Boumediene,” said American Civil Liberties Union attorney Hina Shamsi, director of the ACLU’s National Security Project. “Holding hearings in the United States makes those arguments even stronger.”
But she wondered whether the public would know about these stateside hearings. “Does everyone get notice of these secret sessions in the same way that we do down at Guantánamo?,” she said. At Guantánamo, the judge announces in open court what legal motions lawyers will discuss before he excludes the public and defendants, notice that in at least one instance allowed news organizations to challenge a closure.
The core issue confronting the post-9/11 war court in its latest form is “what due process applies to military commissions,” said attorney Charles Swift, who as a Navy lawyer took the case of Osama bin Laden’s driver to the U.S. Supreme Court in a challenge to the war court, and won.
Federal courts, he said, will likely eventually decide the question of whether the classified aspects of the war crimes trials violate the Constitution.
One issue could be the exclusion of the accused from classified discussions, notably those that discuss the CIA’s black site prisons. Defense attorneys want that information, and to develop it in consultation with the accused terrorists, to argue that the CIA practice of waterboarding, sleep-deprivation and physical abuse deprives the United States of the moral authority to execute them, if they are convicted.
Also at issue could be whether alleged monitoring at Guantánamo of the defense lawyers’ ostensibly confidential meetings with their clients violates due process, Swift said.
“Those questions were there before. But I think it will be more difficult to avoid the questions if some hearings were held in or near Washington D.C.,” Swift said. “The prosecution will have lost the argument that this is purely outside the United States and that some of the constitutional norms that apply in other courts don’t apply here.”
Judge Parrella ordered prosecutors to find the stateside site days after his first week of 9/11 hearings, cut short because a hurricane headed for North Carolina threatened to strand court participants at Guantánamo.
University of Texas law professor Stephen Vladeck, a veteran war court watcher, said he understood the attraction of holding hearings in the United States given the difficulties in getting to and from the Caribbean island.
But shifting portions of the pretrial hearings to a site far away from Guantánamo prison would also highlight the fact that the defendants can’t attend portions of their own trials — and would bolster any appellate argument, Vladeck said, that military commissions trials “violate the confrontation and due process clauses” by not allowing the accused to participate in portions of their own hearings.