From January 28 to February 3, 2018, I had the opportunity to travel to Guantanamo Bay, Cuba to serve as an observer for pretrial hearings against suspected terrorists. The trials against these individuals have been convened by a military commission, which is a military court of law, authorized by the President of the United States, for the purpose of trying violations of the law of war and other offenses.1 In this most recent iteration of the military commission, other offenses has been defined broadly to include engaging in hostilities against the United States or its coalition partners or purposefully and materially supporting such hostilities, and individuals who are subject to the jurisdiction of a military court have been explicitly defined to include those who were part of al Qaeda at the time of an alleged offense.2

There are currently three active cases pending trial at Guantanamo Bay: one involving the alleged masterminds of the 9/11 attacks on the World Trade Center in New York and the Pentagon in Washington, D.C.; one involving conspiracy to attack the USS Cole; and one alleging that the accused was a senior member of al Qaeda and in that role, led several attacks in Afghanistan. I was in Guantanamo to attend hearings in the third case, which is the only case among the three in which the prosecution is not seeking the death penalty. As readers will discover, the military commission was in session for just a few hours during the week that I was there. But the drama that unfolded before me spoke volumes. I learned from the experience that the manner in which hearings are conducted at Guantanamo Bay leads to absurd results. Yet the absurdity goes largely unnoticed by the American public.  In this blog post, I invite you to experience Guantanamo Bay along with me. 

Travelling to Guantanamo Bay

Getting to Guantanamo Bay is an adventure in and of itself.  For each hearing, everyone – observers, reporters, attorneys, paralegals, clerks, and in some cases, family members of the victims – must be flown in.  Flights leave from Andrews Air Force Base in Maryland, and are generally commercial jets chartered for the purpose.  There is one flight in, and one flight out, so the hearings must take place within the confines of that schedule. My flight was scheduled to take off at 10:00 a.m. on Sunday, and there would not be nearly enough people to fill the 757.  Nevertheless, there was a strict protocol for checking in and boarding the plane.  NGO Observers and media first, then defense, then prosecution, and then judiciary (which included the judge and judicial staff). Check in was to occur in waves, so my call time was 6:00 a.m.  But on this day, the computer system was not working, so the carefully planned schedule soon broke down as the groups found themselves mingled together in line. Eventually, the military staff switched to a manual check-in system, and the line began to move. 

The purpose of the initial check-in was to obtain boarding passes and to drop off checked luggage.  A few hours later it was time to go through security.  The men in fatigues who had staffed the check-in desk switched places and began to man the metal detector and screening machine for our carryon luggage.  Everyone proceeded through that line in the same order as before: observers, media, defense, prosecution . . . etc. We took up position in a second waiting room and waited for a bus to take us out to the plane. A while later, the men who had staffed the main check-in counter and then the security scan now took up position in the second waiting room.  One called us to board while another drove the bus.  By this time it was comical, and I felt like I was watching a scene from an old movie.  Would these men turn out to be our pilots as well?  Thankfully, no. 

Getting to Guantanamo Bay is an adventure in and of itself.

It was a quick ride to the plane parked on the tarmac.  On the way, we passed Air Force One, which had just returned President Trump from Switzerland the night before.  We exited the bus, boarded the plane, and took our seats.  Media furthest back, observers next, etc. Those from the judiciary, including the judge, were kept separate, boarding the plane last so as to minimize contact with others in the party (and thus maintain impartiality in the proceedings).  As we prepared for takeoff, the flight attendant made the usual announcements.  But it was surreal when she said “with service from Andrews Air Force Base to Guantanamo Bay.” We landed a few hours later, and emptied from the plane in the reverse order of boarding. It was here at the airport that we first met our escorts. They said hello and then rushed to get us into a van and over to the ferry.  The airport for the naval base is on a strip of land that is across the bay from the base. The ferry would be leaving soon, and it was important that we be on it.  The ferry was an industrial looking vessel painted in gun-metal gray.  The bulk of the space was taken up by vehicles, but there were two seating areas on board.  We were told to stay away from the seating area where members of the judiciary were seated, and decided to stand along one side of the boat where we could take in the view. 

The military commission operates in temporary buildings situated atop an old runway at one end of the naval base: Camp Justice.  It is surrounded by barbed wire and large orange blockades. Our escorts maneuvered the van around these blockades to deliver us to our accommodations. The observers stay in large canvas tents with plywood floors, which are kept very cold to discourage the iguanas and scorpions from taking up residence within them. Each tent is equipped with several beds and dressers and a small refrigerator filled with bottles of water.  The tents are set up in rows, and a few rows away, there were tents containing laundry facilities, latrines, and showers.  The latrines were glorified outhouses, with plywood exteriors. And the showers consisted of a water line hung atop multiple stalls surrounded in thick vinyl or plastic sheeting.  The showers were either on or off; the water either lukewarm or scalding. The observers also had a work tent that contained several work tables, office chairs, and Ethernet cables for connections to the outside world. 

After settling in, we went to get our badges, which would be required for entry to the court building. Though we were already in a complex by virtue of being in Camp Justice, the actual courtroom building and several trailers around it, were like another complex within the complex, situated behind additional fencing covered in a dark mesh material, which we were later told was in place to guard against snipers. The courthouse was unassuming from the outside; having been built out of corrugated metal, it looked like an airplane hangar.  We went into a trailer to have our photos taken and badges made, and afterwards, the gentleman who did so gave strict instructions as to which areas of Camp Justice could not be photographed, bringing up images from the surveillance cameras around Camp Justice as he spoke.  Buildings and infrastructure were off limits.  But views of the ocean and the bay were good; he even told us where to find the best views.  As we returned to our tents, I took in my surroundings, and as I looked back towards the courthouse, I imagined the gentleman who had given us our badges watching our every move.  I would have this feeling each time I ventured to the latrine in the middle of the night; would someone be watching and wondering why I was walking the base at such an odd hour? 

Visiting Camp X-Ray

On Monday after our arrival, the court was in closed session, so we asked for and received permission to visit Camp X-Ray, where the first detainees at Guantanamo Bay were held for several months in 2002. Our escorts were given permission to take us there, but we were strictly admonished not to take any photographs. On the one hand, this admonishment was ridiculous because pictures of the camp are widely available on the internet. But once I saw the site, I could see why the military would want to constrain photography; if photography were permitted then every group of observers would post pictures of this place, and in this way, its image would be continuously in the nation’s consciousness. 

Camp X-Ray was a crudely built temporary holding site for detainees.  We were permitted to see it only from a distance at an overlook on Sherman Avenue, the main street cutting through the base.  The structure itself consists of rows of open-air holding cells made entirely of chain-link fencing.  Most of the cells were covered by simple wooden roofs, but some were not.  The entire complex was surrounded by a fence topped with barbed wire, and on each of the four sides there was a crudely built guard tower.  The entire camp evinced an air of haste and temporariness.  And indeed, the camp was intended to be temporary – a quick and rough solution for the military while more permanent quarters were being built for the detainees.  But the appearance of the camp speaks volumes about the attitude with which the detainees would be held.  It has the appearance of a dog kennel.  How could any detainee being held there be seen as anything other than guilty by the military personnel assigned to guard it? The space itself dictated that they were guilty.

As we drove away from the camp, I took in the surroundings with more detail.  The camp itself was located in an open field in a more remote section of the base.  But within view from the campsite was a junk yard.  And just beyond that junk yard was a housing subdivision consisting of simple, but smart, pale pastel duplexes.  Were military personnel living there in those houses when the first detainees arrived on the island? Were they aware of their new neighbors and the conditions in which they were kept?  It has been reported that at least one detainee was later returned to Camp X-Ray for a marathon interrogation session involving allegations of torture.3 Were there families in these houses going about their lives – taking the kids to soccer practice, checking out the offerings at the outdoor movie theater, debating whether to get take out for dinner – while the interrogation took place? This juxtaposition of the ordinary with the extraordinary would be the hallmark of my stay.

Observing Hearings

On Tuesday and Wednesday, we were able to observe open court sessions, each lasting a few hours. Observers are required to show up to court an hour before proceedings are scheduled to begin. We go through metal detectors at two locations before entering the building in which court is held, so our escorts advised that we should only bring a pad of paper and a pen which with to write.  We sit in a viewing gallery, closed off from the courtroom by a wall with large glass viewing panes.  The rules are strict: no doodling (this is the one rule posted on the wall inside the gallery), no standing at the glass, no falling asleep, no leaving or staying without an escort.  We are watched over by three men in military uniforms who sit in the room just adjacent to the gallery and can view us on the cameras aimed at our activities.  The guards are very friendly – taking the time to talk with us and make jokes about the process – but I sense that their mood will quickly turn if we fail to follow the rules.

The sound from the proceedings is piped into the gallery via a closed-circuit TV, which is on a 40-second delay to shield us from hearing any classified information that is accidentally spoken aloud. Because of the delay, the entire process becomes a surreal experience where you can see what is happening well before you can comprehend what you see.  We take our cues to rise for the judge from the actions of those in the courtroom, but do not hear the commands to do so until well after the events have passed.  Each time the judge leaves the courtroom – and this happens many times – we are held in suspense as we wait for the delay to pass so that we can determine whether he is leaving for a short recess or if court is over for the day. 

The main topic for the hearing on Tuesday was whether the court should abate (i.e., suspend) the proceedings.  Over the preceding several months, the defendant in the case – Abd al Hadi al-Iraqi (which we would later learn means “the guide from Iraq”) – had undergone four spine surgeries, and his lawyers argued that he was in intense pain and therefore in no condition to attend court or to participate in his defense. He appeared in court in a neck-to-waist brace that held his posture erect and sat in a padded medical chair designed to allow him to recline to take the pressure off his spine.  The judge searched for information upon which to make his decision about the abatement.  We learned that during the closed hearings on Monday, the judge had requested that the Senior Medical Officer (SMO) for the base appear in court on Tuesday to testify as to the defendant’s condition.  But the SMO defied that order and never showed up for court, supposedly because the SMO had just recently arrived on base, and did not have any information to offer. We then learned that part of the reason we were all in the dark about the defendant’s condition was that his medical records were classified.  Before the records could be turned over to the defense, they had to go through a review process, which the prosecutor testified was taking 30 to 45 days.  Thus, the only official medical information the defense attorneys could offer to the court was over a month old.  Based solely on what their client told them about his pain level, the defense attorneys argued for abatement, or in the alternative, that the judge order certain accommodations and that the proceedings consist of short sessions with frequent breaks.  The judge put off deciding the motion and acquiesced to the conditions.  The defendant was scheduled to get an MRI that evening, so presumably there would be more information the next day.

After that, court proceeded normally for about an hour.  The defense argued a motion to compel evidence, the prosecutor opposed the motion, and the judge took the matter under advisement. By the time the argument was over, the defendant reported that he needed to stop for the day, so court adjourned until 1 p.m. Wednesday.  The late start was ordered to accommodate the defendant’s need for rest after the MRI scheduled for late that evening.  

[O]n Guantanamo, there is pressure to make the most of the time when everyone is present.  After all, there’s no plane leaving the island for a week, and it’s uncertain when all assembled will next be able to return.

On Wednesday, Ahmad al Darbi, a Saudi Arabian citizen who had plead guilty to terrorism in 2014, was brought to court. It was expected that Darbi would implicate Hadi as an al Qaeda commander in deposition testimony the following week.  Darbi had already completed his direct testimony in an earlier proceeding, and all that was left was for the defense to cross-examine him. But before the proceedings could commence, the defense wanted to call the court’s attention to a letter Hadi had written, explaining his ill treatment on the preceding day.  Hadi’s letter detailed that he had been placed in a holding cell with no running water and thus could not use the restroom; the guards had seized papers given to him by his lawyers for review; and the handcuffs used by the guards were allegedly so tight that they cut into his skin. The prosecutor called a senior administrator to the stand to provide a different view of the facts. Amidst all of this drama, the defense explained that the defendant was again experiencing a great deal of pain. The court knew that the defense intended to argue a motion to compel production of Darbi’s psychiatric records – a move to gain information with which to discredit Darbi’s testimony. With Darbi and his lawyers present, it was clear that the court was eager to move forward with the proceedings, so the judge quickly resolved the complaints, ordered that maintenance address the running water issue, and again acquiesced to the prospect of short hearings with multiple breaks.  The court then shifted to hearing arguments on the defendant’s motion. The defense made the motion, the prosecution objected, and Darbi’s lawyer took the podium to argue against the motion.  But just minutes into the argument, the defense informed the court that Hadi could continue no longer.  Court was placed in recess until Thursday morning.

Thursday morning, we were back in the gallery awaiting the proceedings scheduled to begin at 8 a.m.  But it soon became apparent that Darbi was the only defendant present. Hadi had refused to leave his cell because he was in too much pain to attend the proceedings.  The defendant’s absence created a new kind of stress for the court. Hadi had the right to be present. And if the proceedings were held on the mainland, it would be a simple matter for the defense to request a continuance until a later date.  But in proceedings on the mainland, the government hasn’t paid thousands of dollars to fly in all of the attorneys, court personnel, witnesses, and observers.  On the mainland, the parties can go home and come back another day.  But on Guantanamo, there is pressure to make the most of the time when everyone is present.  After all, there’s no plane leaving the island for a week, and it’s uncertain when all assembled will next be able to return.  And in this case in particular, there was a unique pressure. Darbi had already pled guilty, but his sentencing had been delayed until he could carry out his end of the bargain and testify against others. Darbi had depositions scheduled in two cases over the next two weeks, and after that he was slated to leave Guantanamo to serve out his sentence in a Saudi prison.  If the proceedings were abated in the Hadi case, the entire deposition process, and therefore his transfer, would be delayed indefinitely. The arguments in court that day devolved to the court once again asking for official information about Hadi’s medical condition and the prosecution suggesting that the defendant could waive his presence so they could proceed. With no movement on either front, the proceeding was placed on hold.

Ironically, no one knew what it meant to place the proceeding “on hold.”  At first, the attorneys lingered in the courtroom, and the guards informed the observers that we were to wait in the gallery.  Then slowly, everyone started to leave. The gallery is extremely cold, so we asked our escorts if we could wait outside, and they obliged us.  We sat there for a long time, chitchatting with the guards, and waiting for word to come from the court as to whether we were done for the day.  But no word came.  Eventually, the attorneys began to leave the complex . . . only they were no longer dressed in their uniforms; instead they were dressed for a casual day in a sunny paradise.  It soon became apparent that it was absurd to continue waiting.  The attorneys clearly were not planning to return to court that day. We pushed for a firmer answer to whether we could leave, and were finally told that we could go, and that our escorts would be contacted if court were to resume that day. It never did.

On Friday, the defense team for Hadi hosted a barbecue and invited us to attend.  This was our first chance to speak directly with any of the lawyers involved in the case. We were able to speak with the lead attorney, the attorney who had argued the motion to compel discovery on Tuesday, an investigator, the individual responsible for understanding the classification of materials in the case, a paralegal, attorneys from other cases who were in Guantanamo to meet with their clients, and others. It was fascinating to hear about their experiences on the case, but what stood out to me was the drama that was unfolding with regard to their client.  We learned soon after arriving that a neurosurgeon was on base to examine another client.  The court was hopeful that he could examine Hadi (or at least his medical records; it was unclear which) and provide the court with some much-needed information about the defendant’s ability to proceed. A closed session had been scheduled for 10 p.m. that evening to receive this information and to determine if court would be in session the next day, which was Saturday, the day the observers were scheduled to leave. The prospect of this late-night hearing created a sort of electricity in the air as the entire team waited to learn whether the doctor had agreed to see their client. I could not help but be struck by the absurdity of the situation.  The court had been relegated to seeking the opinion of a random physician rather than the defendant’s own physician in order to make use of the time afforded by everyone’s presence on the island. As it turned out, the late-night hearing would not occur, and there would be no court on Saturday.  But by Sunday, the court would be back in session, and the physician would testify that Hadi could indeed carry on with the proceedings without incurring further risk to his health.

Reflecting on the Experience

It is easy to get caught up in the drama of the courtroom. And if it were my goal to detail the case, I could provide much more information about the arguments for the motions to compel discovery.  But after a while, I realized that the details of the case were unimportant.  I would never learn the outcome of the motions because, even though the orders would probably be deemed not to be classified, there would be such a significant delay before they were made available on the military commission’s website, that I would have forgotten about them long before that happened.  Instead, I realized, the larger point was that these proceedings have been largely forgotten.

The Guantanamo Bay Naval Base is situated on a tropical island, with beautiful beaches, providing access to clear blue waters. Life on the base is peaceful and ordinary. There are schools, an outdoor movie theater, and a McDonald’s.  Yet there are also suspected terrorists being held in a secret detention camp located on some unknown part of the island. The military commission operates in temporary buildings behind large orange blockades.  Its presence is very obvious, but its existence is largely undiscussed by those living and working on the base. Indeed, the observers were admonished to be discrete in discussions outside of Camp Justice.  And it soon became apparent to me that this is indicative of the way in which Guantanamo has been pushed to the back of the American conscience.  Guantanamo Bay exists, but it is largely ignored.  Though observers are sent each time court is in session, the faces of those who shuffle in and out change too frequently for there to be a collective consciousness about what goes on in Guantanamo Bay.  The only media outlet committed to covering the proceedings is the Miami Herald.4  The paper’s dedicated reporter, Carol Rosenberg,5 is probably the most informed American citizen about the Guantanamo proceedings, but hers is just one voice.  A telling moment occurred when I went for my own MRI the Monday after returning from Guantanamo, and when it came up in conversation where I had just been, the technician said to me, “Are there still people down there?”

 At last count, there were 41 detainees being held at Guantanamo Bay.  Only 7 have been charged.

Indeed there are.  At last count, there were 41 detainees being held at Guantanamo Bay.  Only 7 have been charged.  The rest exist in a kind of purgatory.  They are deemed too dangerous to be released, but there is presumably not enough evidence with which to charge them. The U.S. Constitution forbids this behavior towards U.S. citizens. What does it say about the United States that we permit individuals to be held indefinitely just because they are non-citizens? For those who are charged, the proceedings are absurd, as demonstrated by the search for medical evidence in the Hadi case.  No one doubts that all who are charged will be found guilty. Yet the proceedings are protracted, discovery is withheld or inadequate, and the costs are mounting. Some would argue that given the death and destruction these men are alleged to have caused, it does not matter how they are treated.  But I would argue that as a nation we are judged by the treatment we afford to the worst among us. Our treatment of the detainees fuels the hatred of Americans. I too want justice for all who were killed or injured, Americans and others, in the 9/11 attacks and in other acts of terrorism against the United States. But in order for justice to be meaningful, it must be swift and fair. So far, it appears we have neither.

• 1. 10 U.S.C. § 948b (2018).
• 2. 10 U.S.C. § 948a (2018).
• 3. https://www.nytimes.com/interactive/2014/09/01/us/guantanamo-camp-x-ray-ghost-prison-photographs.html
• 4. The Miami Herald posts extensive coverage about the proceedings at Guantanamo Bay and other related content at http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/.
• 5. Carol Rosenberg regularly tweets about her experiences at Guantanamo Bay @carolrosenberg.