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As Pandemic Halts The Military Court At Guantánamo, Critics Call For Its Closure

May 22, 2020
Originally published on May 22, 2020 8:43 am

The coronavirus has not spared the U.S. military court and prison at Guantánamo Bay, Cuba, where legal proceedings have come to a virtual standstill due to the pandemic. That has critics of Guantánamo, which has cost taxpayers more than $6 billion despite finalizing only one conviction in nearly two decades, saying this is a chance to shut it down for good.

Guantánamo has had at least two cases of COVID-19: one in a sailor at the U.S. naval base on the island and a second in the guard force that oversees its prisoners, which include Khalid Sheikh Mohammed, alleged mastermind of the Sept. 11, 2001, terrorism attacks.

The U.S. Department of Defense said that for security reasons it will not say whether there have been additional positive diagnoses at Guantánamo, but because of the pandemic all court hearings have been canceled since mid-March and are not scheduled to restart until late July.

In addition, the facility is subject to health safety measures such as social distancing and the mandatory wearing of masks and gloves when near prisoners. There is also a 14-day quarantine for anyone arriving on the island, which has basically halted court travel because Guantánamo lawyers must also quarantine for 14 days upon returning to the U.S., turning even a short trip into a monthlong commitment.

Even before the pandemic, problem-plagued Guantánamo had been hit with more dysfunction than usual, including the departures of several key personnel. Among them were the judge in the Sept. 11 case, Air Force Col. W. Shane Cohen, who left in April after announcing he was taking early retirement after less than a year on the job, and the head of the military court, Christian Reismeier, who moved to a different court role after being in his position for less than a year. Two of the lead attorneys for the Sept. 11 defendants have also stepped aside in recent months.

All of that leaves the Sept. 11 case trial, scheduled to begin jury selection next January, in limbo.

"It's definitely not going to come off as a January 2021 trial — that's perfectly clear," said Bobby Chesney, a law professor at the University of Texas at Austin who specializes in national security law and has followed Guantánamo closely since it opened in 2002.

"There's just no telling when this might get underway," he added. "But we certainly know this — that as long as COVID-19 is raging and these detainees are located in Guantánamo, there are going to be basic practical difficulties getting a single thing done."

To Georgetown Law School professor Abbe Smith, who traveled to Guantánamo in January to watch hearings in the case against Abd al-Rahim al-Nashiri, accused of orchestrating the USS Cole naval warship bombing, the recent upheaval calls for a radical reset at the court.

"You have to try these men or release them. Try them or release them," said Smith, who argues that indefinitely holding Guantánamo's 40 remaining prisoners, most of whom have never been charged with a crime, is illegal and immoral.

"And, yes, I understand the anger and I understand the grief of those who have lost people or who have people who were terribly injured as a result of these acts of terrorism," added Smith, who after returning from her trip wrote a piece for the National Law Journal titled "It's Time to Rethink Guantánamo Bay Military Commissions."

"But it's unbelievable what we're paying to maintain this system that hasn't accomplished anything," she said. "I mean, especially post-COVID, imagine what we could do with that money," a reference to Guantánamo's $6 billion cost since opening.

New York City resident Colleen Kelly, whose brother died in the World Trade Center attacks on Sept. 11, has made more than a dozen trips to Guantánamo to watch court proceedings. She, too, said the shutdown caused by the pandemic and the recent personnel departures present an ideal moment to question business as usual at the military court.

"My basic thought is that this is kind of the perfect time to change everything about Guantánamo," Kelly said. "The time for plowing ahead really is over. This is never-ending, so why not really shake things up?"

Kelly advocates removing the Guantánamo cases from military court and instead trying them in U.S. federal court, which has extensive experience handling terrorism cases, or negotiating guilty pleas with the prisoners.

However, the U.S. government has given no indication that it is inclined to change the status quo at Guantánamo.

In a statement emailed to NPR, a Defense Department spokeswoman said the military is trained to do rotations and will continue rotating personnel in and out of Guantánamo. She also said Guantánamo's cases have no fixed timeline.

Still, said Kelly, "I feel like the 9/11 trial is mired as deeply as the war in Afghanistan and the never-ending wars in the Middle East, so why not take a fresh look?"

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STEVE INSKEEP, HOST:

The pandemic has almost completely stopped operations at the U.S. military court and prison at Guantanamo Bay, Cuba. It is hard to conduct court proceedings amid social distancing and a virtual halt on travel to the base. Now, as you hear this news that the Guantanamo courts are stopped, you could be forgiven for asking a question - weren't those courts pretty much stopped even before the pandemic?

Sacha Pfeiffer of NPR's investigations team covers Guantanamo, and she's on the line. Good morning.

SACHA PFEIFFER, BYLINE: Good morning.

INSKEEP: How many prisoners are at Guantanamo, Sacha?

PFEIFFER: There are 40 people left. That's down from almost 800 over the years. And these were people rounded up after the September 11, 2001, terror attacks. The ones remaining include Khalid Sheikh Mohammed, the alleged mastermind of 9/11 and his four co-defendants.

INSKEEP: OK, so at least some prominent defendants - not too many have been put on trial. So how has the coronavirus outbreak affected Guantanamo?

PFEIFFER: There have been at least two COVID-19 cases there - one in a sailor at the U.S. naval base on the island, a second in the guard force that oversees the prisoners. Now, the U.S. Defense Department says for security reasons, it will not say if there have been additional cases. But because of the pandemic, as you said, all court hearings canceled. They're not scheduled to restart until late July. Also, the whole facility is subject to safety measures, like wearing masks and gloves. There's also a 14-day quarantine for anyone arriving. That's basically halted travel there because the Guantanamo lawyers would also have to quarantine for 14 days when they returned from Cuba. So even a short trip would consume a month of their lives.

INSKEEP: Bad as this sounds, wasn't this already - I mean, it's a glacial process. We're talking about possible trials for 9/11, almost 20 years ago.

PFEIFFER: Yes, absolutely. The 9/11 trial was supposed to begin next January. That always seemed overly optimistic to anyone who knows how slow the Gitmo legal process is. I mean, there's been just one finalized conviction in almost two decades. But now it seems impossible. I asked a law professor at the University of Texas at Austin about this - Bobby Chesney. He studies national security law and follows Guantanamo closely. And here's what he said.

BOBBY CHESNEY: We certainly know this - that as long as COVID-19 is raging and these detainees are located in Guantanamo, there are going to be basic practical difficulties getting a single thing done.

PFEIFFER: And Steve, even before the pandemic, Guantanamo had been dealing with more dysfunction than usual recently. The 9/11 judge basically quit last month. He suddenly announced he was taking early retirement after less than a year on the job. The head of the military court was also replaced last month after less than a year on the job. And two of the lead attorneys for the 9/11 defendants stepped aside in recent months. That just keeps pushing the 9/11 date further down the road as new people get up to speed.

INSKEEP: It almost sounds like the pandemic just reinforced what was already happening or, rather, not happening.

PFEIFFER: Yes. And I spoke about that with Georgetown law school professor Abbe Smith. She went to Guantanamo in January to watch some hearings. She later wrote a piece for The National Law Journal called "It's Time To Rethink Guantanamo Bay Military Commissions." She's of the belief, as many people are, that holding those 40 remaining prisoners indefinitely, with many of them never having been charged with anything, is illegal and immoral.

ABBE SMITH: It's unbelievable what we're paying to maintain this system that hasn't accomplished anything. I mean, especially post-COVID. Imagine what we could do with that money.

PFEIFFER: The amount of that money, by the way - U.S. taxpayer dollars - $6 billion since 2002.

One person who's made more than a dozen trips there to watch the hearings is Colleen Kelly. Her brother died in the World Trade Center attacks. She says the delays caused by the pandemic and all these recent personnel turnovers is an ideal moment to question business as usual at the military court.

COLLEEN KELLY: My basic thought is that this is kind of the perfect time to change everything about Guantanamo.

PFEIFFER: She thinks one way to resolve the cases is to instead try them in U.S. federal court, which has lots of experience with terrorism cases, or negotiate guilty pleas with the prisoners in exchange for life sentences.

KELLY: I feel like the 9/11 trial is mired as deeply as the war in Afghanistan and the never-ending wars in the Middle East. So why not take a fresh look?

INSKEEP: Is anybody in authority inclined to take a fresh look?

PFEIFFER: It doesn't sound like it. I asked the U.S. Defense Department that. No one would talk on tape, but a spokeswoman emailed me a statement saying the military is trained to do rotations so it will continue to rotate personnel in and out of Guantanamo. And it said the Guantanamo cases have no fixed timeline. So it gave me no indication that any changes are coming.

INSKEEP: NPR's Sacha Pfeiffer with an update. Sacha, thanks for the careful reporting. Really appreciate it.

PFEIFFER: You're welcome, Steve.

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