ALBUQUERQUE, N.M. — Only 19 organizations in the entire world are permitted to look in on the secretive Guantanamo Bay military commissions to witness the United States’ legal proceedings against alleged terrorists. The University of New Mexico School of Law is one of only five colleges or universities on that list.
The defendants are accused of carrying out some of the worst crimes imaginable against Americans. They include men who have admitted planning the Sept. 11, 2001, terrorist attacks and those who may have bombed the USS Cole in October 2000 in Yemen.
Nearly 3,000 people died in the 9/11 attacks; the bombing of the Cole resulted in the loss of 17 sailors.
Law Professor Dave Sidhu was the first legal observer from UNM to fly down to Guantanamo Bay Naval Base in Cuba – sometimes called GTMO or Gitmo – where the alleged terrorists are imprisoned and may face trial.
Since Sidhu’s visit to observe the commissions in June 2013, eight UNM law students have made the trip. There is no shortage of students who would like to view the proceedings, the professor said.
UNM’s first student to go to Guantanamo was Martin Juarez, who has since graduated. He called his August 2013 journey to Cuba “a life-changing experience.” Juarez attended pre-trial hearings in the case of Khalid Sheikh Mohammed and four others charged with plotting the 9/11 attacks.
“One of the most unique moments was when the defendants began praying during court,” Juarez said in a report following the trip to Cuba. “I had never seen proceedings halt in a federal or state courtroom to allow the defendant time to pray. Apparently, the detainees do not pray in court often. Our escort later told me that he had never seen the defendants pray in any of his 20 previous trips to the base.”
Currently, two commissions are active. The case against Abd al Rashim al Nashiri, the alleged leader of the USS Cole bombing, is further along than that of Khalid Sheikh Mohammed and the others accused in the 9/11 case, which Sidhu said is “in its very early stages.”
Matthew Bernstein was a law student when he traveled to Guantanamo in February 2014 for hearings in the al Nashiri case. Today he is a staff attorney for Albuquerque’s Pegasus Legal Services for Children. Like the other observers contacted for this story, Bernstein came away feeling that justice was not being served in Guantanamo.
“Keep in mind that these are pretty bad people,” he said of the accused. “The families who want justice don’t get it. The system creates more injustice.”
The commissions, established soon after 9/11, have been criticized from the start for everything from the way they were set up, the exclusion the Justice Department in planning them, and the U.S. government’s involvement in torturing some of the defendants.
“Many people don’t realize that there is a better chance for true justice if the trials were held in federal court,” Bernstein said. “In my opinion, Khalid Sheikh Mohammed wouldn’t be alive today if he had been tried in federal court.”
The United States has occupied the Guantanamo base since 1898 and used it as a prison since 2002. As of March, it held 122 detainees. Since 9/11, only three have been convicted. Seven currently face charges.
Besides viewing a few hearings during their four-day stay, Bernstein and other observers got to speak with attorneys and were shown around some areas of the base. They were not allowed to see the facilities where the prisoners are held.
Al Nashiri, Bernstein said, appeared to be a pathetic, broken man, not the mastermind of a terror attack, but “a mid-level follower, not a leader, slumped in his chair.”
Student Krista Garcia observed al Nashiri in November of last year. Previously, from media accounts, she believed he was a vile terrorist who deserved to die. “I didn’t have much compassion for him at all,” she said. However, like Bernstein before her, in person she found al Nashiri “beaten” and “tired.” She noted that he “walked into the court like a normal human.”
In one hearing, prosecutors fought to prevent an MRI scan on al Nashiri to determine whether the torture he suffered had caused brain damage. If so, the chance of a capital sentence would be greatly diminished.
Garcia said the hearings and the general aura of Guantanamo Bay changed her mind about the alleged terrorists – particularly in regards to such niceties as human rights and legal violations.
“I think I was very close-minded,” she said, referring to her feelings before the trip to Cuba. “It was very eye-opening (to see) how it’s all been jerry-rigged.”
Despite the best efforts of everyone involved, she does not believe the tribunals are fair. In fact, she said, “they’re inherently unfair. … The system is broken.”
Another criticism of holding the tribunals at the base in Cuba is the tremendous expense to the government of transporting the entire court back and forth between Andrews Air Force Base in Maryland and Guantanamo. Estimates for the round-trip flights vary from $80,000 up to $250,000.
Hooman Hedayati, a naturalized U.S. citizen originally from Iran, went to Guantanamo for four days in December, the same month he graduated from UNM and two months before he passed the New Mexico Bar exam. Onboard were the judge, defense teams, prosecutors, staff, translators, technicians, a dozen legal observers, five journalists and victims’ family members – among others.
His overall view of the commissions hasn’t changed, he said. If anything, he “came back with a more critical opinion” than he previously held. “The government spent $250,000 just on a chartered flight to transport about 200 people for a hearing that was canceled hours after arrival, he said. “At the current pace the hearings are going, there most likely will not be a trial until 2018 at the earliest. I don’t see this as justice for the victims’ family members (assuming that all five individuals are guilty).”
Some observers may feel differently, but those contacted for this report agreed that justice is not being served and that the U.S. legal system’s reputation, like the system itself, is suffering because of the tribunals.
“I believe in 50 years, we will look back at this moment as a dark point in our history, just as we did with the Japanese (American) internment camps,” Hedayati said.