Sweating Out Guantanamo’s Pitfalls With Brig. General

     GUANTANAMO BAY NAVAL BASE, Cuba (CN) – The brigadier general gunning for the suspected plotters of the Sept. 11, 2001, attacks goes to great lengths – on a roughly 5-mile run around the Caribbean naval base – to convince skeptical reporters that he is steering the reputed “trial of the century” at an appropriate forum.
     Though he is prosecuting some of the most notorious men on the planet, the fractured history of the military commissions has made it curiously difficult for Brig. Gen. Mark Martins to find positive press or goodwill for his mission.
     Five chief prosecutors before Martins have resigned or been ousted from their positions within eight years. There have also been five terrorists convicted, not including the two overturned on appeal.
     As a leader of President Barack Obama’s Interagency Policy Review Task Force in 2009, Martins helped with the third revision to the legal structure of the military commissions. His retooled military code provided access to death-penalty lawyers in capital cases, guaranteed that Guantanamo captives would be able to access federal courts, and barred the admission of coerced confessions.
     Though below a federal court’s standard, the legislation marked an improvement over the Military Commissions Act of 2006, which Congress hastily passed after the Supreme Court struck down the Bush administration’s executive order.
     For eight years, Martins’ predecessors had been criticized as going after al-Qaida’s smaller fish such as Osama bin Laden’s driver, Salim Hamdan, and propagandist Ali al-Bahlul.
     Nobody could lodge the same accusation at the brigadier general, who is seeking the execution of Khalid Sheikh Mohammed, or “KSM,” the alleged “mastermind” of the attacks on the World Trade Center and the Pentagon, and four suspected co-conspirators.
     Martins is also pursuing the accused U.S.S. Cole bombers in parallel proceedings expected to reconvene for December.
     KSM and his alleged accomplices had tried to plead guilty once before, but ironically, it was unclear whether the military commissions code would grant the death-penalty punishment that they then requested if they did not go to trial. Proceedings languished as Attorney General Eric Holder sought removal of the case to the Southern District of New York, where such an admission would have been quickly accepted.
     When political furor stood in the way of trying the men in the shadow of Ground Zero, Brig. Gen. Martins restarted the case last year back in Cuba.
     Before proceedings could resume, a former chief prosecutor, retired Col. Morris Davis, jeered that the “reformed” commissions – his scare quotes – were trying to make “a silk purse out of a sow’s ear of justice,” in a Salon article.
     This gave Gen. Martins two tasks: prosecuting the case and winning over the skeptics by keeping grueling hours, improving access to the commission proceedings and granting interview after interview with bar associations, human rights groups and journalists.
     Martins, a Rhodes scholar and magna cum laude graduate of Harvard Law, typically fires off a flurry of legal citations and military statutes at press conferences, and encourages journalists to read the fine print. He makes a habit of handing out an updated DVD of the docket at press conferences, and highlighting what he views as the commissions’ accomplishments: the total hours of proceedings, numbers of motions resolved and pages of discovery handed over to the defense. Transcripts usually are made available on the same day, but other filings go through a 15-day classification screening. All of these documents eventually appear, with occasional redactions, on the commissions website, under the heading “Fairness * Transparency * Justice.”
     Like everything else about Guantanamo, the website carried a heavy price tag: $487,639, the Miami Herald reported.
     Running with reporters in Cuba is a far newer tradition for the general, and it’s understandable to be skeptical of the practice. Gen. Martins was the legal adviser and close friend ex-CIA Director Gen. David Petraeus, who was legendary for hoofing it with fawning reporters before an extramarital affair forced his resignation.
     “Runner’s World” even did a profile of the nation’s former top spy.
     National security journalist Spencer Ackerman, then working for Wired, later wrote a mea culpa saying that his jaunt with Petraeus produced more of a “crazy workout story” than journalistic insight.
     But there are good reasons to look at Gen. Martins’ practice differently.
     For one, Martins has never extended an invitation for reporters to join him on his very early runs in Cuba.
     Journalists have asked to accompany him – twice.
     The first time, the Toronto Star’s Michelle Shephard taped an interview of her jog with him for her e-book: “Justice on Trial,” an account of the pretrial hearings to date against Mohammed and his four alleged accomplices.
     Anyone thinking that privileged access meant more favorable coverage would have been sorely mistaken. Shephard’s synopsis of proceedings remained neutral as to whether the military commissions would be a “modern-day Nuremberg” or a “show trial.”
     Another reason not to scoff at the new chief prosecutor’s literal exercise in transparency is obvious: taking part in it is very, very hard.
     With roughly three weeks to go until I faced my first marathon in Philadelphia, I asked Guantanamo’s public affairs officers, or PAOs, to be the second journalist to go on this type of mobile interview.
     Spokeswoman Capt. Andi Hahn sent the email confirmation with instructions to meet Martins “tomorrow morning at 0430 at the flag pole on top of the hill that you see outside this MOC,” short for the media operations center in a former airport hangar.
     Resting up for an early rise inside the media tents meant tuning out the incessant roar of the air conditioning that chilled the rooms below 70 degrees. We were told that the temperature helped keep out bugs, mold and banana rats, a groundhog-sized rodent reputedly named for the shape of its feces. Journalists were advised to bring earplugs to sleep through the noise, but I couldn’t do that if I wanted to hear a 3:45 a.m. alarm.
     After managing to catch a few hours of sleep, I put on running shorts, a T-shirt and a reflective vest in the wee hours of Thursday morning and headed out. Though the MOC was a short walk away, Sgt. Cody Stagner, a college-age National Guardsman from Kentucky, told me to climb into a white government van and drove me to the flag on top of the hill, located next to a faded yellow building called the “Crow’s Nest.” It used to be the site of the commissions, but it now serves as office space for lawyers and a lookout for security guards.
     Echoing in my mind was the spokeswoman’s warning: “He’s a fast runner so good luck to you!”
     As the start time for the run came and went, I began to wonder whether the general stood me up. Stagner, whose chiseled face accentuates his youth, assured me that Martins was a very busy man and possibly had some last-minute paperwork he had to sort out before the day’s hearing. I decided to make the most of this exercise time anyway as long as I was awake, and asked the escort for directions to Cable Beach, a route he said would be roughly 5 miles there and back. I started running shortly after he drove off.
     After what seems like less than a minute into my trek, I saw that white government van again.
     “I found the general,” Stagner shouted, inviting me into the passenger seat.
     Stagner explained in the van that Martins’ instructions got botched somewhere down the chain of command, or to quote a common military expression, “down the flagpole.” The general apparently wanted to meet at the flag in front of the sign for Camp Justice, between the tents and the so-called Expeditionary Legal Complex, the courthouse where the commissions are held. The sergeant dropped me off at a security gate that hadn’t yet opened. Since he couldn’t pass through, he told me to sprint about 100 meters to catch up.
     It seemed that the escort undercalculated by a few hundred meters. I dashed down a hill, headed to my right as instructed and booked it as fast I could down this unfamiliar, dark road in Cuba until I eventually spotted the rough outlines of two runners. I shouted out, “Hello?” and then wondered whether yelling down an otherwise empty road in one of the world’s most highly secured and controversial military bases was a wise idea.
     The two shadowy figures turned around and ran until they reached me. I was relieved to recognize the 53-year-old Martins, his 6-foot-3 frame clad in running shorts, a dark T-shirt and a reflective belt. His assistant, Army Capt. Khalil Tawil, a muscular soldier who goes by the name “KT,” ran by his side.
     We exchanged some small talk about the Cuban countryside and marathon training until we reached Cable Beach, which churned up small waves unlike some of the stiller bayside shores.
     As we turned back, Martins quipped that the mix-up wasn’t a ruse to keep me from asking questions. I took this joke as an opportunity to ask to tape an interview. Since he agreed, I pulled out my iPhone and hit record.
     In its March 2013 profile of the general, the ABA Journal had called him “the Man Who Would Save Guantanamo,” but Martins was quick to downplay the honorific.
     “I don’t think it really fits the story,” he told me. “And it’s not a reflection of our government’s policy. So I’m not sure, if ‘would save’ is intended to indicate my state of mind, that’s just inaccurate. I suppose there’s other interpretations of that kind of headline, but I’m dedicated to the policy of our government, which is to responsibly close Guantanamo.”
     At this point, Martins added that he was speaking about the “detention facilities,” not the base, which has been operating since 1898, the year the U.S. seized it during the Spanish-American War.
     Cuba has wanted it back since Fidel Castro took power during the revolution. Castro claimed to have accidently cashed one of Uncle Sam’s lease checks – a little more than $4,000 – once, and refused to deposit any more after that.
     Closing Guantanamo won’t shut down the military commissions, Martins said.
     “That’s an important distinction,” he said. “Nowhere in the Military Commissions Act is the word ‘Guantanamo.’ It’s a forum. It’s not a location.”
     Guantanamo supervisor Jim Imhof told reporters during a tour earlier last week that the military considered moving the legal complex several places in the United States.
     When I asked Martins about this, the general responded: “The complex is not built out of brick-and-mortar, and it’s termed an ‘Expeditionary’ legal center. Meanwhile, of course, the current state of law is that people at Guantanamo, detainees, are not going to be moved to the United States.”
     Congress effectively blocked spending any money transferring Guantanamo detainees to U.S. soil in a defense authorization bill in 2010.
     A year earlier, Martins participated in discussions for moving the commissions to the U.S., but he said he wouldn’t reveal the locations that were considered during that “deliberative process.” He noted how President Obama had revealed this past May that he asked the Department of Defense to again explore moving the commissions.
     We passed a couple of banana rats scampering at the side of the road, and headed back up to the hill to the security gate, which by this time was manned with soldiers. The flagpole at Camp Justice, which would mark the end of our run, lay ahead.
     Saving one of the touchier questions for last, I asked whether the confessions of KSM, the self-professed “mastermind” of the Sept. 11 attacks, would be admissible in court.
     Though Martins declined to discuss what he would introduce into evidence, he emphasized that the commissions code barred statements obtained by “torture or cruel, inhuman or degrading treatment.” Federal law nevertheless allows a judge to consider the “totality-of-the-circumstances” to determine whether a statement is voluntary, he said.
     “Under such a test, there may be circumstances in which a statement of an accused is admitted despite having been made some time after an instance of coercion,” Martins explained in a follow-up email. “This is well-known criminal procedure as attenuation-of-the-taint doctrine, and the leading Supreme Court case for this doctrine in the context of accused statement is Oregon v. Elstad.”
     It takes some historical background to unpack this answer.
     In 2002, Al Jazeera’s Yosri Fauda reported that he landed an interview with KSM and alleged co-conspirator Ramzi bin Al-Shibh before their capture, and the former allegedly boasted about his role in what he called “Holy Tuesday.”
     Both of the interviewees were captured shortly after that, and spent three years in CIA custody before reaching Guantanamo Bay in 2006.
     A declassified CIA report revealed that Mohammed was water-boarded 183 times by the agency.
     In 2009, the Pentagon released a 29-page transcript from Mohammed’s Combatant Status Review Tribunal hearing. It records KSM as stating, “I was responsible for the 9/11 operation, from A to Z,” and claiming responsibility for more than 30 other plots, including the beheading of journalist Daniel Pearl and attempted assassinations of Pope John Paul II, Pervez Musharaf and Bill Clinton.
     At the time, Human Rights Watch’s Kenneth Roth expressed skepticism about what he reportedly called the “purported confession,” and even Time Magazine noted that The 9/11 Commission Report described the so-called “mastermind” as “prone to exaggeration and self-aggrandizement.”
     Nevertheless, KSM continued to stand by his statements regarding the Sept. 11 attacks in particular during subsequent military commission hearings.
     David Nevin, of the Boise-based firm Nevin, Benjamin, McKay & Bartlett is expected to argue that his client Mohammed “sought retaliation against the U.S. for its actions against their people,” the ABA Journal reported.
     Defense attorneys have also challenged a war court rule that classifies everything their clients said, including their memories of interrogation in secret prisons. Claiming violations of the Convention Against Torture, a treaty the United States signed in 1988 and ratified in 1994, these lawyers have said that any trial would not be truly transparent without access to records of their clients’ treatment.
     The White House’s National Security Council spokeswoman Caitlin Hayden has since announced that the Senate Select Intelligence Committee and the CIA expected to declassify an updated report uncovering these details “in whole or in part.”
     After the run, I entered into the men’s shower tent with a sign warning those entering not to drink the “NON POTABLE WATER – NOT FOR HUMAN CONSUMPTION!!!” At 0630, I had a tour of Camp X-Ray, so-named because the open-air prison, which has not housed prisoners in 11 years, is made only of metal fences and razor coil.
     With the sun rising as we approached it, the prison was, in the most literal sense, transparent, save for the wooden-walled medical center, interrogation huts, guard housing and other structures. Metal-fenced cages measuring 8-by-8-by-8 housed the captives with one bucket that served as a bathroom, another they used for water, a prayer mat, a Quran, and few other small items.
     Carol Rosenberg, widely considered to be the dean of the Guantanamo press corps, reported that this prison held roughly “800 foreign men and boys,” in an article about a court order to preserve the detention center for FBI inspection. Though still intact, the camp is now overgrown with weeds and other vegetation.
     On our tour of the prison, the other reporters and I passed a shed snakeskin, a small deer skull and dozens of banana-shaped droppings.
     Camp X-Ray is the site of the one of the most wrenching images to make it past Guantanamo’s censors: depicting shackled detainees kneeling down a narrow corridor wearing orange jumpsuits, blackout goggles, and soundproof earmuffs as a couple of soldiers tower over them.
     In 2009, former Vice President Dick Cheney pronounced Guantanamo’s 240 remaining captives the “worst of the worst,” long after this camp had shuttered.
     The Guantanamo Review Task Force determined a year later that more than half actually had been “cleared for transfer,” to quote the Pentagon’s language in the final report. That remains true today, with 164 detainees still at Guantanamo, of whom 84 have been “cleared for transfer.”
     From the watchtower at the end of the tour, we heard the amplified tones of the “five-minute warning,” reminiscent of a bugle at the start of a horserace. That prepared listeners for reveille, which at Guantanamo is marked by the playing of the National Anthem at 0800. We headed back to the military escorts to be driven back to the MOC to view Thursday’s hearings.
     On the whole, the Camp X-Ray press tour tries to convey it as a relic of the bad old days of Guantanamo.
     Meanwhile, media are typically allowed to tour Camps Delta, 5 and 6, just not while the commissions are being convened. Press materials pitch Camp 5 as Gitmo’s first “modern state-of-the-art” facility and Camp 6 as a “maximum-security facility modeled after others in the U.S.”
     Left unmentioned is the secret Camp 7, where the Sept. 11 suspects and other “high value detainees” are reportedly being held.
     During the ride back, the tour guide told the driver to stop the van when the anthem played. Afterward, we headed back to the press room to observe the hearings of men suspected to be the perpetrators of the worst terrorist attacks in U.S. history.
     It was an eventful morning, to say the least, and it had barely begun.

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