Witness to historyAttorney asked to observe legal hearings for 9/11 defendants
This past December, Brian J. Farrar had an opportunity to witness first hand a part of what will in all likelihood be the largest and most complicated hearings for a criminal trial in United States history.
Farrar, a seasonal resident of Block Island whose parents have a home on Corn Neck Road, is a New York-based attorney who was selected to observe the most recent hearing involving the five primary defendants that have been accused of masterminding the terrorist attacks of Sept. 11, 2001.
Farrar traveled to Guantanamo Bay, Cuba, stayed for a week, and was able to record his impressions of the defendants, the attorneys on the prosecution and defense sides, as well as the judge, from both a legal and personal standpoint.
The five defendants are Khalid Sheikh Mohammed, Waleed bin Attash, Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi and Ali Abd al-Aziz Ali.
The hearing involving the five defendants is one of two that are currently being held in Cuba. The other hearing is for Abd al-Rahim al-Nashiri, a Saudi Arabian who allegedly orchestrated the 2000 suicide bombing of the USS Cole in Yemen.
In an interview with The Block Island Times this week, Farrar said his overall impression was that, no matter what our personal feelings may be for those who allegedly perpetrated one of the most devastating and deadly assaults on U.S. soil, the process of putting these individuals on trial has been intensely thorough and fair.
Farrar works in the Special Federal Litigation Division of the New York City Law Department. “We defend the city of New York, mainly the police department, in federal civil rights actions,” Farrar said. Because of his professional background, Farrar was nominated, and eventually selected, as a member of the most recent contingent invited to observe the military hearings at Guantanamo Bay. He wanted to be clear that he was not acting as a representative of New York City, but attended as a private citizen. His opinions and observations are his own.
“When the decision was made by the government to try these individuals in Guantanamo, and in a military setting as opposed to a civil court, the government likely realized the commissions would have a transparency problem,” said Farrar. “The average person can’t walk in and watch the proceedings, while any person can walk in and watch what’s going on” in a federal or municipal courtroom.
Because of that, Farrar said, “the government set up an observer program.” In addition to the media, pre-approved organizations can nominate people within those organizations to observe the hearings. Among the many organizations that have observer status are the American Bar Association, the American Civil Liberties Union, Amnesty International, as well as several law schools.
“We observe what happens and supplement the media coverage,” said Farrar.
According to Farrar, the five defendants are accused of murder in violation of the law of war, terrorism, providing material support for terrorism, destruction of property and conspiracy to commit war crimes. The legal sufficiency of the conspiracy charge is currently being debated and may soon be decided by the United States Supreme Court, Farrar said.
The trip began last Dec. 14, when Farrar boarded a chartered plane at Andrews Air Force Base in Washington, DC. Accompanying him were every single participant in the proceedings, outside of the defendants. On the plane were the judge, Col. James Pohl, and his staff, all of the defense lawyers, the entire prosecution team, and about a half dozen family members of the victims of the attacks. Farrar was one of 13 observers.
“We landed in Guantanamo on a Saturday afternoon and once you’ve landed it’s clear you’re on a military base. The base is entirely separated from Communist Cuba; there are watch towers and land mines on the other side of the fence. It’s a very secure military base,” he said.
United States Naval Station Guantanamo Bay — popularly known as Gitmo — was originally built as a naval base in 1903. In 2002, former Defense Secretary Donald Rumsfeld established the Guantanamo Bay detention camp where dangerous detainees could be held. Members of the Army, Navy, Coast Guard and Marines were brought in to assist with the detainees.
“It was a new mission for the old navy base,” said Farrar.
Accommodations at the camp were not luxurious.
“We were staying in tents in a place on the base called Camp Justice. We slept in tents, showered in tents — it felt like camping,” said Farrar. The courtroom complex was about 200 yards from where they were staying.
Farrar said the complex had been built specifically for the trial of the five defendants at a cost of about $12 million.
“Inside the walls [of the complex] are several trailers, a trailer for the defense, the prosecuting team, a trailer for the security force, and in the courthouse there are individual holding cells for each of the defendants — metal boxes that stand alone and are not attached to anything,” said Farrar.
The courthouse itself, he said, “looked like no other courthouse I had ever seen: a windowless building surrounded by barbed wire and covered in mesh netting. There was no sign that said it was a U.S. court house.”
Inside, “each of the defendants has his own cell. I was always curious how they were brought there — even if I was up early before dawn, I never saw a caravan. It might have been sometime during the night. The cells are air-conditioned, they have a bed, and an arrow on the floor painted east so they could pray.”
Farrar said that no pictures of these facilities are allowed for security reasons.
Farrar explained the purpose of the hearings. “In any trial, whether criminal or civil, all issues need to be decided before a jury is empaneled,” he said. “The bigger the case, the more complex the issues.” That was when Farrar said the hearings occurring at Guantanamo are “the largest investigation in the history of the country. There are so many issues [that need to be resolved] before going to trial.”
Farrar said “we’re still over a year before the jury is selected. There’s a target date of January 2015, that’s when the government set it, but some feel that’s too optimistic. It’ll probably be the second part of 2015 before they can begin the trial.”
The jury will be made up of 12 military officers and two alternates. In order for any of the defendants to be sentenced to death, the jury’s decision needs to be unanimous. For a sentence of 10 years or more, it must be a two-thirds majority vote, and a sentence of less than 10 years requires a simple majority.
Farrar said that the hearings will resolve a number of issues. “The defense has made motions so they can get the charges thrown out,” said Farrar, “but primarily their motions involve two things. One is access to their clients — arguments about access or lack thereof. They are claiming that the government is not allowing them to get face time with their clients.” Farrar added that the defendants are “claiming that the conditions at Guantanamo Bay and the very nature of these proceedings are interfering with [the defense lawyers’] ability to adequately represent their clients.”
The second major issue focuses on what role torture plays in all of this. “If it is believed that they [the defendants] were held in CIA black sites and subjected to intense interrogation techniques — whatever word you want to call it — the defense lawyers want to raise this issue by saying the person has been punished already and doesn’t deserve more punishment, or at least doesn’t deserve the death penalty,” Farrar said.
Farrar described this latter issue as the “big back and forth with many layers of national security issues.”
Each defendant is assigned his own team of military Judge Advocate General (JAG) officers. These are lawyers from all branches of the military. In addition to the military legal team, Farrar said, each defendant is allowed to “choose one civilian lawyer — or what is called ‘learned counsel’ — that tend to be experts in the most serious criminal cases.”
“It’s interesting that there’s a mix there — military and civilian lawyers on the same team — there’s not a lot of precedent for this,” said Farrar.
The biggest surprise, he said, was to witness firsthand the interaction between the defendants and their military counsel.
The five men are, without doubt, among the most reviled people in the history of the United States; accused of heinous crimes that resulted in 3,000 deaths on Sept. 11 and the ensuing wars in Iraq and Afghanistan. But they are being represented by members of the American military, men and women who have sworn to defend, and even give their lives, for this country, Farrar said.
“I was impressed how seriously these JAG officers took their jobs. They were fighting extremely hard on behalf of their defendants,” Farrar said. “They were extremely professional and really wanted what was best for their clients, even if that means an ultimate acquittal.” Farrar also said the conversation between client and lawyer seemed free of tension. “They would be seen smiling and talking together,” said Farrar.
In the courtroom, each of the five defendants has his own table. The defendant sits on the far left side of the table, and the defense team sits on the far right of the table. Khalid Sheikh Mohammed sits at the table closest to Judge Pohl.
Across from them is the prosecuting team.
Leading the prosecution is Gen. Mark S. Martins.
“He’s a fascinating guy. Graduated first in his class in West Point and went on to Harvard Law School and served on the law review with a guy named Barack Obama,” said Farrar. “If you picture a high-ranking officer who is very determined, very passionate about a cause, he’s that guy who fits that impression. He takes this job very seriously, who cares a lot about the overall fairness of the commission.” Martins is also a Rhodes Scholar.
Farrar said Gen. Martins “spent a lot of time with us, answering our questions and making himself available.”
One day he asked the observers if any of them wanted to go running. “I volunteered. I met the general and one of his aides at 4:30 in the morning. It was still dark out, and my bunkmate elected to go with us,” said Farrar. “The four of us went running before dawn. It was one of the most intense runs of my life. Uphill, in the hot Caribbean heat, an incredible experience.”
As for the five defendants, when they enter the courtroom there are soldiers lining the room. During his period of observation, four of the five were wearing fatigues. “Khalid Sheikh Mohammed came in with a long beard dyed red, it looked bizarre, and he had on a camouflaged jacket,” said Farrar. “He looked like [Osama] bin Laden in those videos from the cave that were repeatedly shown on the news.”
One of the defendants, Ali Abd al-Aziz Ali, who is one of the alleged 9/11 financiers, wasn’t wearing camouflage. He was wearing traditional garb. “I asked his lawyer why he was not wearing fatigues like the other defendants, and he told me that his client doesn’t buy into the whole soldier mentality.”
“It was an intense experience to be there, to see these guys on a sort of human level,” said Farrar. “We’ve heard impressions of what they were like, but seeing them act like regular people, just to see that was incredible. It wasn’t that they did anything unusual; it was that they didn’t do anything unusual.”
The reason Farrar pointed this out was to articulate a feeling that he had. The interactions between the five defendants and their attorneys, as well as with their guards, “seemed very courteous. It didn’t seem like they were afraid of one another, not terrified of their current surroundings,” he said. “I did not get the impression that the defendants were in any way being mistreated or living in constant fear.”
Probably the most drama Farrar saw was when defendant Ramzi Binalshibh had four outbursts over two days. The first day the judge addressed each defendant and told him his rights and asked each defendant whether or not he was present in the courtroom. Binalshibh said he “couldn’t answer because he was being kept awake at night,” meaning he was exhausted and confused, said Farrar. “His lawyer said the guards were banging on his cell, and the judge said he was not going to address those issues now” and asked Binalshibh to simply acknowledge whether he was present or not.
Then Binalshibh claimed he was waterboarded, and the judge declared that he was being disruptive and was then escorted out. After Binalshibh was brought back into the courtroom later, he called the judge a war criminal and Binalshibh was escorted out a second time.
After his week in Guantanamo, Farrar said he was impressed with what he saw.
“I think [the defendants] are getting a lot of process. People who believe that we’re just going to convict them and sentence them to death — in my opinion, that’s not what’s at all going on there. They are getting so much assistance through the court, the [Guantanamo military] commission, the judge; they are all bending over backwards to give them a fair hearing.”
Farrar said the he felt “there are very real challenges to a fair trial.” There are some allegations — such as the charge of the federal government surreptitiously recording conversations — “that need to be taken seriously.”
But that, said Farrar, is “part of the process” that he had been asked to observe.