Meetings an issue in 9/11 case
WASHINGTON — In a bid to restore some access to Guantanamo’s isolated detainees, prosecutors in the trial over the Sept. 11, 2001, attacks are proposing weekly video meetings between the five defendants and their lawyers, which would require both sides to work around social distancing protocols mandated during the coronavirus pandemic.
Lawyers for Khalid Sheikh Mohammed, the lead defendant in the death penalty case, had asked the trial judge to let him speak with his lead lawyer, Gary Sowards, who is in self-quarantine in New York City. In making the request, they agreed that the conversation could be monitored.
In response, prosecutors proposed hourlong videoconferences, a far more complicated and risky endeavor. That would require guards moving the defendants across the base to the courtroom to speak to their lawyers one by one through a secure video link to war-court headquarters in Alexandria, Va.
To accomplish that, Sowards would need to obtain a waiver from the Defense Department to travel from New York City, a coronavirus hot spot, to the Pentagon. At 70, he is considered at higher risk for the illness and has been working from home under government guidelines.
The effort at a workaround in the slow-moving attempt to bring the case to trial comes as the 40 prisoners at Guantanamo have been increasingly isolated during the pandemic.
The court has been closed since Feb. 25, and judges in the two capital cases have canceled hearings because the prison, in an effort to limit the virus’s spread, has imposed restrictions on access to the detainees. One rule requires hearing participants, who commute to the court from the United States by a Pentagon air charter, to arrive two weeks early and remain in their quarters to see if they become symptomatic.
The International Committee of the Red Cross disclosed last week that it had canceled its quarterly visit to the prison, which was scheduled for May 22 to June 5, because of the virus. The organization, which helps families connect with prisoners around the world, has been meeting the Guantanamo detainees and prison leadership at least four times a year since the prison opened in 2002.
A spokeswoman for the International Committee of the Red Cross, Elizabeth Shaw, said it had canceled a quarterly visit only once before, in 2012 for administrative reasons, and that a visit in late August is scheduled.
At Guantanamo, 26 prisoners have been allowed to call their lawyers for years. But those who had been held at secret CIA prisons overseas before arriving at the base, notably Mohammed and the other men accused of conspiring in attacks orchestrated by al-Qaida, are allowed to communicate only through in-person meetings and legal mail.
A week ago, the military judge in the 9/11 case, Col. W. Shane Cohen, ordered prosecutors to explore the possibility of offering defendants “some type of telephonic or other access by audio or video means to their counsel.” The coronavirus had caused the case to stall and affected communications between the defendants and their lawyers, he said.
It was Cohen’s last order in the case. He is retiring from the Air Force.
On Friday, the chief judge of military commissions, Col. Douglas Watkins of the Army, temporarily assigned himself to the case for as long as the travel and work restrictions are in effect.
A lawyer for defendant Ramzi Binalshibh since 2012, James Harrington, who is leaving the case this summer for health reasons, said the video-link plan was problematic because there were no assurances that the CIA or other people would not be listening.
He also said moving defendants outside the prison carried risks.
“These guys are in a very vulnerable position,” Harrington said. “If one of them gets it, these guys are in a lot of trouble.”