GUANTANAMO BAY, CUBA—There’s a solemn ritual that takes place at the end of every week’s 9/11 war crimes hearings, held inside a portable at “Camp Justice.”
Family members of Sept. 11, 2001, victims sit on padded blue chairs and meet the lawyers defending the detainees most of those relatives have spent the last 15 years hating.
James Connell III has faced them often. Connell represents Ammar al Baluchi, the Kuwaiti-born captive of Pakistani heritage who is accused of financing the attacks and who is the nephew of Khalid Sheikh Mohammed, the alleged mastermind.
“Victim family members approach being down here in this dark place from all sorts of perspectives,” says Connell. “They’ve all suffered and there’s a full range of human reaction from, ‘I’m so happy you’re doing what you’re doing, it’s good for America,’ to famously, ‘Go f–k yourself.’ ”
The meetings, like the job, are never easy. This remains one of history’s most vexing trials. Death penalty cases are rarely straightforward — but one of this magnitude, with five defendants charged with the murder of 2,967 people under military law that didn’t exist at the time of the crime and who were held and tortured for years at secret CIA black sites, is particularly complicated.
Aside from legal complexity, the lawyers also face issues unique to Guantanamo — including the FBI attempting to turn a defence team member into a confidential informant and the fear that Camp Justice, built upon a former airstrip, is environmentally hazardous and is literally making them sick. At least seven people who have worked here have been treated or died from cancer, including Navy Lt.-Cmdr. Bill Kuebler, a former lawyer for Canadian Omar Khadr who lost his battle with an aggressive cancer in 2015. He was 44.
Then there is the sheer duration of the trial. Fifteen years have passed since the crime and some say it will take another 15 before the case is fully litigated.
One of the defence lawyers just turned 72, another is nearing 70.
Connell didn’t need this job. He had a successful death penalty practice in Virginia when he was approached to lead al Baluchi’s defence. The Obama administration, in amending the Military Commission Act in 2009, stipulated that each legal team must have “learned counsel,” an attorney experienced in trying capital cases.
It has become an all-consuming effort. For the last five years, al Baluchi has been Connell’s only client, aside from assisting pro bono in a case about cellphone surveillance.
“Truthfully, I never knew the sheer amount of federal and military bureaucracy that I was going to be doing. Having been essentially my own boss for 10 years it was a rude awakening,” he says.
Once a month, sometimes more, he is here meeting his client for seven hours a day. They have struck up an unlikely friendship and discussed everything from Connell’s Buddhist faith to al Baluchi’s love of the satirical publication The Onion.
Of the five defendants, al Baluchi is the most educated and well-versed in American culture. He asked Connell if he could get copies of the Sundance Channel series Rectify because he had read about it. (Connell, coincidentally, is the legal consultant for the program.) When they first met it was his name that was the topic of conversation. “People from other countries are always interested about my name because I’m James Goodman Connell III … he would joke, ‘Are you a king?’”
During his arraignment — a marathon hearing in 2012 that lasted 13 hours — al Baluchi spent much of the time reading the Economist. A year later, he famously came to court with a copy of Fifty Shades of Grey, saying the guards gave it to him. Connell told the judge it was some type of “disinformation campaign” to discredit the pious nature of the accused. Al Baluchi, Connell said, thought it was funny.
All five accused face different allegations over the level of their involvement. Connell believes his client had no knowledge of the 9/11 attacks and only learned about them “on TV, just like all of us.”
But despite their friendship, Connell says he is not just fighting for al Baluchi’s life. He is also challenging the validity of Guantanamo’s military commissions. That’s what motivates him to keep going.
He feels the role has taken on greater urgency under the Trump administration and the possibility that these trials could become more frequent — meaning civilians, normally charged criminally, would increasingly be brought before military courts.
“This case will have a huge impact on whether we keep chipping away at democracy,” says Connell.
“Is this going to become normal, especially with this administration? Or is it going to remain this one weird footnote to history? Frankly, I hope it remains one weird footnote.”
Alaina Wichner hadn’t been on the job long when it was revealed that a member of her defence team had been approached on his way home from church by two agents with the Federal Bureau of Investigation.
Wichner represents Ramzi bin al Shibh, along with death penalty attorney James Harrington. Bin al Shibh, a native of Yemen, shared an apartment in Hamburg, Germany, with 9/11 hijacker Mohammad Atta. The Pentagon alleges that he applied to receive flight training in the U.S. but having repeatedly been denied a visa wired money to plotters already on American soil.
The FBI had launched an investigation into some of the lawyers themselves in 2014 and questioned defence team members. In at least one instance, it had a contract team member sign a nondisclosure agreement, seeking to turn him into a secret informant. The revelation had a “chilling effect” on the defence team.
“I recall that moment so well: it was a rainy day and we have to walk down a ramp and into a garage to enter our building and I just stopped in that moment and I thought, ‘All right Alaina, you have to decide whether you’re in or you need to walk away,’ ” she says.
She recalls being paranoid about what would come next. “I was literally wondering, does a black SUV and men in suits grab me off the street?”
The fear spread to the other legal teams, too. David Nevins, who represents Mohammed, cancelled a fact-finding mission to the Middle East following news of the FBI investigation. The hearings were halted for months.
But Wichner had decided to stay. “If I walk away from something I don’t think is right, well shame on me. Someone else is going to try to come along and fix it?”
It wouldn’t be the last time her team faced possible government interference in the case. In 2015, the hearings were again put on hold when bin al Shibh told the judge he recognized the new courtroom interpreter sitting at his defence table from the CIA black site where he had been held.
The Pentagon confirmed a few days later that he had indeed worked for the CIA, but would not say where.
Then there was the smoke detector saga. Defence lawyers alleged that the government was eavesdropping on their meetings when it was discovered that devices that looked like smoke detectors were in fact “Louroe AP-4 audio surveillance units.” The judge subsequently ordered them removed from the meeting rooms.
Wichner, like the others, now lives a strange double life, here and in the United States, travelling back and forth each month. “It takes its toll — you don’t have weekends because if you happen to be (home), you’re either packing or unpacking,” she says.
Everyone has their coping mechanisms while in Guantanamo Bay. For Connell, it is meditation. For Wichner, it’s trying to care for the island’s feral felines.
After falling in love with one affectionate cat she spent more than $1,000 getting him vaccinated and flown to the U.S. When her older cat objected to the new roommate, Gitmo, as the cat is named, went to live with Harrington’s family.
Michael Schwartz is often asked why he keeps doing what many say is a thankless job. Especially given that his client, Walid bin Attash, takes every opportunity to tell the judge he doesn’t approve of his legal team. The Pentagon alleges that the Yemeni ran an Al Qaeda training camp in Logar, Afghanistan, where two of the 19 hijackers were trained.
“I have every reason to not stay on it … especially when your client keeps saying on the record he doesn’t trust you,” Schwartz says.
Schwartz was a captain with the U.S. air force when he began the case. He was offered a transfer elsewhere — a “dream job” he says — but decided to leave the military a year ago so he could continue the case as a civilian. When you’ve gone this far, was his reasoning, how can you walk away?
“The continuity of counsel — whether (bin Attash) is happy with it or not — is essential in this case.”
But Schwartz comes to hearings reluctantly due to the unresolved questions about environmental concerns. Many on his team stopped travelling here last summer. “We’re leaving behind military lawyers, paralegals, civilian analysts who normally would be in court. I just don’t believe I can put somebody in that environment and sleep well at night. Whether it’s safe or not, we’re all entitled to a proper answer that makes everybody comfortable.”
Camp Justice sits on an abandoned runway that was a jet fuel dumping site, surrounded by older buildings that contain asbestos. Schwartz says there is no evidence atmospheric carcinogens have caused the high levels of cancer — and yet there isn’t sufficient evidence to show it hasn’t.
As a former military officer, he says he is willing to absorb risk if required while working in an “expeditionary legal complex,” such as those set up in Iraq or Afghanistan. But options in war zones are limited, whereas Camp Justice could be moved elsewhere on the base.
“This isn’t a Guantanamo or not Guantanamo issue,” he says. “This is an abandoned runway that contains toxins that are known to cause serious disease and death.”
Connell has represented a lot of terrible people, not uncommon for a death penalty attorney working with some of the worst of humanity.
John Allen Muhammad, the leader of the Beltway sniper attacks that left 10 people dead in Maryland, Virginia and Washington in 2002, was “not a nice person,” he says. “Difficult to be around. Never sat down, just stood over me and shouted at me for hours at a time. It was very unpleasant.” (Muhammad lost his appeal and was put to death in 2009.)
In the meetings with family members of 9/11 victims, Connell says he is sometimes asked: “I want you to be completely honest with me: is there anything human or redeeming about these people?”
“I’ll ask them first, ‘How honest do you want me to be?’ And if they say, ‘Honest’ then I tell them, ‘Yes, they are very human with a full range of their own reactions.’”
For many relatives that’s hard to hear — for others, it’s a small comfort. Everyone processes grief differently. There are varying opinions of what justice in this case should look like.
What will happen to Guantanamo under Trump is still unclear, despite his campaign pledge to load it up with “bad dudes.” A draft of an executive order stated that there could be more trials held here — and that scares Connell, coming at a time of “Muslim bans,” an increase of xenophobic and dictatorial rhetoric and intolerance for dissent.
“There are a lot of unpopular people — me as a defence lawyer, you in the media — who in history were hauled before military tribunals for pushing back against whatever policy of the government was,” he says. “The idea of substituting military tribunals for civilian justice, to me is the single most important precedent this case will set.”
While Connell has never been a service member, he comes from a military family. His father, James Connell Jr., was in the navy and was a Russian language professor at the height of the Cold War. Connell’s father still works with the U.S. Department of Defense and often gets his son’s email. “He’ll forward it to me,” Connell says, “usually with comment or suggestion at the top.”
Connell remembers his father having cocktail parties with Russian friends when he was a kid growing up in Valdosta, a small town in Georgia. Neighbours often looked at them suspiciously.
“I have often wondered why from such a young age I was interested in the ideal of liberty. I don’t come from a family of activists or anything like that,” he says. “But perhaps that experience of maintaining disconnect between people and politics led me focus on the individual and their rights.
“You could be interested about the people who were the enemies of the United States at the time, without hating the people themselves.”
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