Over the last year, I have been working as a defense attorney in Guantanamo Bay, Cuba. I am part of the John Adams Project, which was formed to provide experienced defense attorneys to assist the military attorneys assigned to defend the detainees in Cuba charged with the most serious crimes, including the attacks on the World Trade Center and the Pentagon on Sept. 11, 2001. In Cuba, I was counsel to Walid Bin Attash, who was charged, along with Khalid Sheikh Mohammed and others, with conspiring to commit the Sept. 11 attacks. I had previously served as court-appointed counsel to Zacarias Moussaoui, the al-Qaida member who was tried and convicted in Alexandria, Va., in 2006 for his role in the same attacks.
Moussaoui’s trial was one of the first to deal with the novel legal challenges of a post-9/11 world, and many thought of it as a barometer of the ability of the United States to provide justice to terrorism suspects. In contrast, the defendants at Guantanamo have been classified as “enemy combatants” in an ongoing war; thus, the trial system at Guantanamo resembles neither a military court martial nor a federal trial. Instead it is a system in which the rules are being invented as we go along.
The court complex in Cuba is unlike any I had ever seen or imagined. It sits on an abandoned runway in southern Cuba, surrounded by 10-foot-tall fences crowned with razor-enhanced ribbon wire. Photographs of the complex are prohibited because the government believes that that could compromise national security.
Inside the court, there are five tables for the defense and two for the prosecutor. There is no jury room. During the trial, I sat in the second row next to Bin Attash while Khalid Sheikh Mohammed sat immediately in front of me. The proceedings are conducted at a snail’s pace because translation is slow. Khalid Sheikh Mohammed, who speaks English, often interjects with alternative translations. Fifteen to 20 uniformed men and women silently watch over the defendants.
The courtroom itself is entirely sealed; there is plate glass between us and the small gallery, which contains family members of victims of the attacks and members of the press. It feels as if the trial is being held in a terrarium. The proceedings are broadcast to the gallery through a speaker system with a 45-second delay that ensures that no classified information is disclosed. A man sits next to the judge with a button that he can push if he, or others in the room, believes that something touching upon national security is about to be said. When that happens, a red light blinks on the bench, the lights dim and the sound is cut off.
Once when Khalid Sheikh Mohammed began to rant about Richard Nixon, the security officer cut the power. I was surprised that the court would deem these statements detrimental to national security and was also troubled by the apparent censorship.
By contrast, the Moussaoui trial was held in U.S. District Court in Alexandria, where the family members and press sat in the same open room that included a jury of Virginians and the defendant. Though the security was tight, it did not have the trappings of a military base. Anyone was free to observe the trial, which served the educational and constitutional purposes of public trials.
There are, however, common elements to both trials—the problems raised by representing a person who is a sworn enemy of the United States who has publicly indicated both that he is guilty and that he is prepared to die for his cause. In Guantanamo, the defendants seek to plead guilty for crimes they want to take credit for—they want to be executed and become martyrs. In Alexandria, Moussaoui bragged that he was an al-Qaida member involved in planning the attacks, pled guilty, taunted family members, interfered with his defense and all but asked the jury to order his execution. He testified that he was slated to fly a fifth plane into the White House. I argued to the jury that my client was a liar making up a role in history for himself and should not be made a martyr.
Sometimes it seems like the only people in the room who want these defendants to live are their attorneys. An attorney is trained to put personal feelings aside and to fight for the rights of even the most despicable defendants charged with the most heinous of crimes. Cases like these put us all to a test. Thankfully, the attorneys in these cases have received incredible support from many of the family members of victims of terrorism.
I think words that Moussaoui himself wrote after his trial demonstrate the value of our court system especially as we seek justice, not just for the defendants but also for the victims of the Sept. 11 attacks.
Moussaoui, like many others, was shocked when the jury in Alexandria did not order his execution. Upon reflection, he asked for a new trial. Here is part of what he wrote:
“I had thought that I would be sentenced to death based upon the emotions and anger towards me for the deaths on September 11, but after reviewing the jury verdict and reading how the jurors set aside their emotions and disgust for me and focused on the law and the evidence that was presented during the trial, I came to understand that the jury process was more complex than I assumed.
Because I now see that it is possible that I can receive a fair trial even with Americans as jurors.”
It is my sincere hope the rest of these cases—wherever and however they are tried—will demonstrate to citizens and detractors alike the quality and fairness of our judicial system.