It's no secret that the Guantanamo Bay detention center is a huge government money-suck. It costs more than $7.5 million to house each of the 59 detainees remaining there every year -- and that's not counting the enormous expense of running a whole separate court system on the base. As President Obama put it in a speech at MacDill Air Force Base in Florida on Tuesday, "we're wasting hundreds of millions of dollars to keep fewer than 60 people in a detention facility in Cuba. That's not strength."
The Guantanamo military commissions alone were estimated to have cost some $700 million by December 2014. And so far they've completed only eight cases, three of which have been completely overturned, and another partially overturned, due to fundamental legal problems.
Of course, the case against the five alleged masterminds of the September 11 attacks is still ongoing. It's been in pretrial hearings for nearly five years. And at each hearing, observers get a glimpse into how much more money is wasted by the government and its multiple teams of lawyers, not only because they all have to be flown back and forth from Andrews Air Force Base to Cuba, along with their support staff, translators and observers, but also because of all the confusing rules the court has created. Even the judge, it turns out, isn't sure what they all mean.
On Tuesday morning, for example, we heard lawyers argue over how a judge's order, issued four years ago, applies to the lawyers' ability to use expert consultants to defend their clients. The issue arose because Walter Ruiz, a Navy Reserve officer who's the lead attorney for Mustafa al Hawsawi, had wanted to show his client's medical records to an expert that the government had refused to pay for. Still wanting to help out, the medical expert had agreed to review the documents at no cost. But Ruiz said the judge's "protective order" -- designed to protect against the unauthorized dissemination of evidence -- unfairly prevented him from sharing evidence with any expert that wasn't being paid by the government.
The result, Ruiz said on Monday, was that Hawsawi was denied the opportunity to have an independent expert assess his medical status. Instead, he could rely only on the opinion of the Guantanamo prison doctor assigned to the high-security camp but who was not an expert in Hawsawi's particular ailments. (Hawsawi is recovering from rectal surgery to remove painful hemorrhoids, a problem he's had ever since he was subjected to medically unnecessary "rectal feeding" and "rectal rehydration" in a secret CIA prison.) That left Ruiz -- who repeatedly reminded the court his client had been forcibly "sodomized" in a U.S. prison -- dependent on the government witness for his expert testimony. That witness had refused to speak to Ruiz before the hearing, however, citing an unspecified "fear" for himself and his family.
On Tuesday, all five lead defense lawyers addressed the judge about the challenges of the protective order. There were at least three different interpretations of the order among them.
Khalid Sheikh Mohammmed's attorney David Nevin said he read the order to allow a pro bono (volunteer) expert to look at evidence, but not to retain it. A medical expert could therefore review a medical record, for example, but he couldn't receive or keep a copy.
That interpretation presented the lawyers with a whole other set of logistical problems -- and expenses. If the lawyer is located in Idaho, say, as Nevin is, and his expert is in Florida, he'd have to fly to Florida, medical records in hand, to personally show them to the expert. He couldn't send or e-mail or fax him a copy. He'd then have to fly back home, with the documents. Needless to say, that's not only extremely inconvenient, but very costly.
Prosecutor Clayton Trivett acknowledged the challenge, but defended the order in court as necessary to ensuring that sensitive evidence doesn't get into the wrong hands. "I get it's harder," he told the court, "but when they raised their hand to do their job they knew the case would be down in Guantanamo."
Meanwhile, Judge Pohl couldn't quite remember why he'd crafted the order the way he did, since he'd issued it, at the government's request, four years ago. "I'm sure there was a very good reason I wrote it that way," he guessed on Tuesday morning.
This complication may seem relatively minor, but it's just one of many reasons why -- as President Obama himself noted on Tuesday -- complex terrorism cases are normally brought in civilian federal courts on U.S. soil. It's why this one should be there, too. As anyone who regularly observes them knows, the military commissions have no clear rules, and absolutely no precedent for how to conduct a trial, let alone a trial of the five most notorious alleged terrorists in U.S. history.
This trial is particularly complex because these defendants were subjected to torture and other forms of cruel, inhuman and degrading treatment in secret CIA prisons -- what the CIA euphemistically called "enhanced interrogation techniques." The defendants are still suffering from that experience, and call attention to it whenever they can. That's because the government is seeking their execution. Due to the extreme nature of the punishment in a death penalty case, the defendants can put forward "mitigating evidence" that includes their treatment in custody to persuade a judge or jury to sentence them to life in prison rather than death.
In federal courts, there are clear rules for handling all of these challenges. Classified evidence and expert consultants and witnesses are par for the course in most terrorism cases. The federal courts have successfully completed more than 550 of them since the September 11 terrorist attacks. If this one had been brought in a civilian federal court, it surely would have been over long ago.
Instead, we're left watching what often feels like a slow train wreck. On Tuesday morning, the attorneys spent hours discussing with the judge which team of specially-assigned federal prosecutors would address arguments over the impact of the federal government's investigation of defense team members, which was discovered more than two years ago and still hasn't been resolved. To this day, it's not clear what the government was investigating or why. And now, a newly-assigned set of government lawyers, who aren't allowed to communicate with the regular prosecutors, claims that some defense team members had unauthorized access to sensitive evidence in a government computer system. "A glitch" in the system allowed them to review that information, said one of the new prosecutors, who demanded the defense attorneys "remediate" the problem by returning all unauthorized information they obtained.
But if the information was available to them on a government computer, how would they know it was unauthorized? The defense lawyers asked. They insisted they need more time to investigate. The judge gave them till January.
And so it goes. More than fifteen years after the September 11 attacks, the military commissions are still limping along in year five of pretrial hearings, spending countless taxpayer dollars to argue over who can see what evidence, and according to what timeline; which documents guards can or cannot remove from detainees' cells; and other basic rules of pre-trial procedure and prison camp life for death penalty defendants. The lawyers and the judge all seem to be trying to do a fair job. But because it's so hard to figure out how things work at Gitmo and in the military commissions, everything moves at a snail's pace. We've seen no apparent progress.
On Tuesday afternoon, the lawyers were once again arguing a motion about document classification that was filed more than four years ago. Judge Pohl didn't seem to think he had the authority to rule on it, and at one point he got so frustrated listening to the different lawyers' arguments -- including one over whether a particular attorney could even mention an unclassified document in open court -- that he abruptly adjourned the hearing and walked off the podium. When he returned, he decided they could all address the matter later, in a closed session. The issue, like so many others in the Guantanamo military commissions, remains unresolved.