WASHINGTON — The Pentagon is building a second war crimes courtroom in Guantanamo Bay that will bar the public from the chamber, the latest move toward secrecy in the nearly 20-year-old detention operation.
From 2023, two military judges will be able to conduct proceedings simultaneously in the new courtroom.
On those occasions, Khalid Shaikh Mohammed and the four other men accused of plotting the September 11, 2001 attacks would have hearings in the existing chamber, which has a gallery for the public.
Smaller cases would be held in the new $4 million room. Members of the public wishing to attend this procedure in Guantánamo would be shown a delayed video broadcast in a separate building.
It is the latest pull from transparency in the already secret national security affairs at the base, where the military and intelligence services have restricted what the public can see. That includes banning photography from sites once routinely shown to visitors and banning both populated and empty war prisons from reporters.
In Guantanamo’s current wartime courtroom, which opened in 2008, members of the public watching the proceedings live will hear the audio with a delay of 40 seconds, giving the judge or a security guard time to mute the sound if they suspect that something classified said.
As a result, onlookers in the gallery in January 2013 were able to see the astonished look of a military judge after the CIA cut off video footage of the proceedings remotely. Another time, only observers in the room saw guards bring an uncooperative suspect into the court, strapped to a security chair, followed by a soldier with his prosthetic leg.
In 2018, guards set up a hospital bed in the courtroom for a disabled defendant who was not seen on video footage.
But the new courtroom, in what has been described as a cost-cutting measure, has no such gallery. Only people with secret clearance, such as members of the intelligence community and specially authorized guards and lawyers, are allowed to enter the new room.
As a temporary solution, the court staff are designing a “virtual gallery with multiple camera angles at once,” said Ron Flesvig, a spokesman for the Bureau of Military Commissions. The public would be escorted there to watch the proceedings, streamed with a 40-second delay.
During breaks in the current courtroom, lawyers and other court participants often engage in conversation with reporters and relatives of terror attack victims, routine contact that would be lost with the “virtual gallery.” So is a draftsman’s ability to observe the procedure live.
The building plan illustrates the ongoing improvisation at Camp Justice, the courthouse in Guantánamo, where the military has been using modular structures and tents since 2007 to avoid building more permanent structures, which require congressional approval.
The second court was designed before President Biden took office with the aim of ending detention at the Guantanamo Bay base. It is being built in the United States for assembly at Guantánamo and is expected to be operational by mid-2023, Mr Flesvig said.
Meanwhile, workers can be seen on the court grounds preparing a space adjacent to the existing courtroom for the new one. But Defense Department officials have yet to decide where to place the virtual gallery, or calculate its cost, he said.
The new court will seat just three defendants, too small for the September 11 case, unless the judge separates some of the five defendants from the joint death penalty trial.
However, the plan envisages a scenario of two death penalty cases being tried simultaneously. In the September 11 case, reporters and victims would watch live. But family members and shipmates of the 17 sailors killed in the 2000 Qaeda suicide bombing of the Cole destroyer off the coast of Yemen, who routinely attend hearings, are said to be kept away from the courthouse along with other observers watching video footage.
It appears to be tailor-made for the conspiracy to murder three men who were recently charged with two terrorist bombings in Indonesia in 2002 and 2003 that killed more than 200 people. Attorney James R. Hodes, representing the lead defendant, Encep Nurjaman, known as Hambali, said even at the current court, access has been far from open.
The public viewing during Mr Hambali’s arraignment in August was tightly controlled by the military, which decides which reporters, law students or human rights defenders can board a Pentagon charter plane to travel to the base. The military also controls access to two remote video sites in the Pentagon or Fort Meade in Maryland.
“I’ve seen processes in Mongolia that were more transparent than this,” said Mr. hats.
To be sure, some secrets have been released, especially in the death penalty cases, which have been under investigation for about a decade.
A medical expert recently testified in public court about the post-traumatic stress of a prisoner who was waterboarding by the CIA in 2002. Previously, the doctor’s descriptions of the trauma would have been sent to a secret hearing that excluded both the public and the inmate.
Separately, the intelligence community allowed a public discussion of something defense attorneys had known for years: Under a secret agreement, the CIA requisitioned nine FBI agents and temporarily assigned them to interrogate detainees in a network of black sites where the CIA used torture. at his interrogations. The agreement is still secret, but intelligence agencies allowed its existence to become known last month.
But the new courtroom reflects a trend toward what at times appears to be a quirky pick-and-choose transparency..
For example, for 17 years, the military routinely took visiting journalists to the detention centers where most of the detainees are held, but requires them to remove photos showing cameras, gates and other security procedures. The military then carried out a consolidation that relocated Mr. Mohammed and other detainees held by the CIA from an undisclosed location to the maximum-security area of the once-displayed facilities — declaring the entire detention zone off-limits to journalists.
Their empty, formerly CIA-controlled prison is also off limits to reporters. Defense attorneys seeking a custody order at the site describe it as a rapidly deteriorating facility that was clearly unsuitable for the inmates and their guards. A military lawyer who recently visited there described carcasses of dead tarantulas in the empty cell blocks.
In 2019, a Navy judge, prosecutors and lawyers discussing a new triple wheelchair-accessible cell at the court used the phrase “jumbo cell” — derived from a Miami Herald article — 30 times in a single court hearing.
Security officials then said the cell’s nickname, essentially a description of a security measure, was banned from being spoken in court. The ban continues, although the military showed reporters the new jumbo cell before a hearing on the 20th anniversary of the September 11 attacks.
“This is an ad hoc classification system,” said James P. Anderson, the security specialist on Abd al-Hadi al-Iraqi’s defense team, who spent nights in the courthouse cell. “Things that were previously unclassified are classified only because the person viewing them is uncomfortable using them. It defies all reasonable logic.”
On the evening of October 28, an anonymous government official sent a judge to censor a paragraph from a statement a prisoner was about to read to a military jury about his torture by the CIA.
The judge considered the request and declined, noting that the statement was unclassified.
In it, inmate Majid Khan quoted Jose Rodriguez, the CIA’s former counter-terrorism director, who said in a newspaper article that “mistakes were made” in the operation of a particularly creepy CIA prison known as the Salt Pit. mr. Khan was tortured there in 2003.
In November, US Marines escorted reporters and others to the fabled Northeast Gate, a passageway into Cuban-controlled territory.
Before this visit, tourists were told they were allowed to take selfies at the oft-photographed gate, but were not allowed to post or publish them.
To reach the gate, motorists drive past the remains of Camp X-ray, Guantanamo’s first wartime detention site, now a weed- and rodent-infested labyrinth of cells made from wire mesh fencing. Military officials for a time banned reporters from filming there, citing unspecified security reasons. A senior official intervened. Now reporters who are at the base on January 11 can take photos there – 20 years before the arrival of the first Camp X-ray inmates.