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GUANTÁNAMO BAY, Cuba – For hearings in the Cole bombing case this month, the Guantánamo court martial was mostly empty. A skeletal team for the prosecution and defense sat in a cavernous room, silently watching an 80-inch screen on the witness stand.
The lawyers argued and witnesses testified from a secret courtroom 1,300 miles north outside Washington.
A former CIA interrogator showed a military judge how Saudi prisoners were imprisoned in a box in a “black site” in Thailand. A former FBI agent testified about collecting the remains of 17 sailors killed in an Al Qaeda bombing of a Navy warship in Yemen in 2000. Forensic psychiatrists denied the lasting effects of torture.
Judges and defendants watch live video.
After the September 11th attacks, the George W. Bush administration established the war crimes tribunal at Guantánamo so that it was beyond the reach of US courts. But now, increasingly, lawyers cross-examine witnesses and make arguments in a remote annex — four miles from the Supreme Court and 10 miles from CIA headquarters in Langley, Va.
The attachment was set during the coronavirus pandemic when the Navy base commander placed all members of his legal staff under 14-day quarantine upon arrival at Guantánamo Bay. Everyone going to court is confined to a cramped metal trailer, with soldiers and security cameras monitoring their every move.
Remote rooms are a necessity. Witnesses reluctant to travel to Cuba cannot be forced to do so, but they can be subpoenaed for attachment, in Crystal City, Va. Someone can testify and go home the same day instead of spending weeks in language between online shuttles.
Having most staff members and witnesses participate remotely, as was the case during this month’s hearings, also eases the stress placed on the court’s 6,000-member base. Guantánamo, behind the Cuban minefield, depends on the United States for services – from communication through fiber optic cables from Florida to health, food, fuel, household goods, even entertainment.
But some lawyers worry that remote testimony and the presentation of evidence are becoming too sterile. Nuance has been lost, he said, undermining prisoners’ right to confront their accusers – a question the US Supreme Court asked in an appeal of a bank fraud conviction that featured testimony by videoconference during the pandemic.
In Guantánamo, the trial in Cole’s case has not yet begun. The judge was listening to witnesses as he considered whether hearsay evidence could be used against the defendant, Abd al-Rahim al-Nashiri, who is accused of planning to bomb a warship on October 12, 2000.
Some lawyers also argue that the Guantánamo trial’s reliance on video streamed testimony from the United States undermines one of the reasons the Bush administration established the trial at the base: to keep it out of reach of the Constitution.
Because the federal-military hybrid court is not on sovereign US soil, one untested theory is that foreign prisoners tried there do not have the same protections as criminal defendants in the United States – even in death penalty trials such as Mr. Nashiri’s.
The Guantánamo Tribunal was established to try foreign prisoners captured around the world during the war against Al Qaeda. gathering intelligence was a priority; trials were almost an afterthought. Prosecutors at the military court relied on unusual evidence, including overseas interrogations of detainees who had previously been tortured or subjected to other cruel and degrading treatment.
“Having a portion of the process conducted in the U.S. could undermine the government’s claim that the process is outside the scope of the Constitution because it happened in a foreign country,” said David Glazier, a law professor at Loyola Law School in Los Angeles who spent two decades in the Navy. before becoming a lawyer.
He also asked whether remote testimony does not undermine the fact finder, in this case a judge and later a jury of military officers. “It seems that the panel should be able to assess the credibility of witnesses for themselves,” he said. “It’s definitely harder to do it on video than in person.”
Michel Paradis, who for years handled civilian court appeals in the Guantánamo Bay case, said the use of courtroom annexes “falsifies what has become a legal fiction” – because the US military court is in a corner under American control. of Cuba, “The Constitution does not impose important restrictions because the proceedings are conducted on foreign soil.”
Former prosecutor, Brig. General Mark S. Martins, has long argued that a military commission trial could take place in the United States if Congress allowed the transfer of detainees at Guantanamo to US soil.
Either way, live testimony has increasingly shifted from Guantanamo to a satellite room, a classified conference room and a $2.5 million hearing-implanted facility to mirror that courtroom, minus the jury box and judge’s bench. It has tables for five separate defense teams for five inmates accused of being conspirators in the hijacking that killed nearly 3,000 people on September 11, 2001.
The trial had not yet begun; after years in pretrial hearings, plea negotiations took place.
The attachment is not limited to members of the public, who can watch from the conference center at the Pentagon, a room at the Fort Meade military base in Maryland or in person if they arrive at Guantánamo.
In May 2021, the prosecutor promised “some technological equipment that allows the integration of remote participation.” The legal team will be “virtually involved in all aspects of the commission process,” he wrote in the request.
On the third day of the testimony of John Bruce Jessen, a psychologist who waterboarded prisoners for the CIA, the virtual participation was like this:
People in the Guantánamo room watched on screens as defense attorneys set up a 30-inch-tall plywood box before cameras in a distant courtroom. Dr. Jessen showed how he used it in the case of the defendant Cole. The role of Mr. Nashiri was played by one of his lawyers, Annie Morgan.
“Annie, you can’t help,” said Dr. Jessen. “We’ll give you time to think about it. Get in the box.”
Ms. Morgan sat on the floor, slid inside the box, ducked her head and wrapped her arms around her knees. Someone was playing guard to close the door.
Judges and observers at Guantánamo could watch in real time, on screens showing the crowded Virginia room, the demonstration and others showing how interrogators arrested and slapped Mr. Nashiri in 2002.
But on at least six other occasions, security officers triggered the mute button during Dr.’s testimony. Jessen, to prevent observers from hearing anything that could be classified.
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