‘I want to look evil in the eyes’

As she sits in the military court in Guantánamo Bay, Linda Gay holds a photograph of her late husband, Peter, and eight-year-old daughter. The photo was taken on September 9th, 2001.

Peter Gay flew to Los Angeles every Tuesday for his work as an executive at a company that made weapons for the US military. He was on the American Airlines Flight 11 that hijackers flew into the north tower of the World Trade Center on September 11th, 2001.

Gay is among family members of 9/11 victims and those injured in the attacks who are attending the latest pretrial hearings of Khalid Sheikh Mohammed, the self-described mastermind of the September 2001 attacks, and of four other alleged co-conspirators at the US naval base in Guantánamo, in Cuba, this week.

This is her first time seeing the men accused of the deaths of her husband and of 2,975 other people. “All I want to do is look evil in the eyes,” she says beforehand.

Mohammed is the first of the five defendants whom two US soldiers lead into the purpose-built courtroom before 9am on Monday. Much thinner than the photograph of the dishevelled man captured in his native Pakistan in 2003, he wears a green camouflage jacket over his white salwar kameez – traditional Pakistani clothes – marking him out as a military combatant.

Mohammed is said to place great importance on his appearance. In earlier court hearings he complained about how a courtroom sketch artist had drawn his nose. More distinctive than his clothes is his burnt-orange beard, which he dyes using berries and fruit juices from his meals in the CIA-run Camp Seven at Guantánamo.

Mohammed is followed into court by the four other accused, each accompanied by two soldiers. The accused are Walid bin Attash, who is from Yemen; Ramzi bin al-Shibh, also from Yemen; Ammar al Baluchi, a Pakistani citizen; and Mustafa al Hawsawi, from Saudi Arabia. A chain bolted to the floor lies below their chairs in case they become unruly. Previous hearings were characterised by outbursts from the men. One defendant tore off his clothes.

As the hearings progess, the men behave differently. Mohammed is alert and focused, consulting regularly with his lawyer. Bin Attash appears introverted, hiding most of the time under his white head-dress and occasionally thumbing through a magazine.

Bin al-Shibh, who is accused of being a 9/11 organiser, veers from attentive to bored. Behind him, al Baluchi, Mohammed’s nephew who allegedly acted as a money courier to the hijackers, talks constantly with his lawyers. In the back row, al Hawsawi, whom prosecutors believe sent money to the hijackers, seems aloof, at the opposite end of a desk from the one lawyer representing him.

Each man wears mostly white, except for the military attire worn by the front three. In the fluorescent-lit courtroom the bright clothing stands out against the washed-out greys of more than a dozen soldiers guarding them.

They are respectful of the proceedings, but not enough to recognise the authority of the military judge. Each time Col James Pohl leaves the courtroom everyone except the five men stands.

The court accommodates their prayer time, usually over a lunchbreak. On Thursday the men pray on their mats in court. The audio feed broadcast to the public gallery is on a 40-second delay, so the judge can censor any classified or secret details revealed suddenly in court. On Thursday the feed briefly picks up one man reciting “Allahu Akbar” – “God is greater” in Arabic – as he prays.

Watching from the public gallery on Monday, Glenn Morgan stands transfixed. For the first time he can see the men accused of planning the attacks that killed his father. Richard Morgan was on an emergency-response team working with the New York fire department when he was killed. Glenn says he is staring because he wants to log as much detail as possible in that moment. The demeanours of the men remind him of a group of high-school students, each with his own distinct personality, he says.

Al Fuentes, a New York firefighter who was injured when the Twin Towers fell, also stands spellbound in the gallery, gazing at the accused through three panes of soundproof glass. “I was trying to get a memory,” he says afterwards. “I got a lot of details.”

'Fight Club'
No one at Guantánamo, the naval base leased from Cuba for more than a century, will talk about Camp Seven. "Camp Seven is Fight Club," says a US navy spokesman, Capt Robert Durand. "We can't talk about Fight Club."

The camp contains the US military’s so-called high-value detainees. They include the five men charged with the 9/11 attacks. It is just over a year since the five were charged through the military commission system, a court last used to try German war criminals after the second World War.

They were originally charged at the military tribunal late in the presidency of George W Bush. In December 2008 they indicated that they would be willing to plead guilty without a trial. Bush's reason for setting up the Guantánamo military commissions – that prisoners would be unable to challenge their detention at the naval-base camp – was found to be unconstitutional by the US supreme court in 2008. This derailed the efforts of Bush's wartime court to prosecute captured enemies in his borderless "war on terror".

In one of his first acts as president, in 2009, Barack Obama, who had made a pre-election promise to close the Guantánamo prison, halted the military commissions. Obama wanted to move the 9/11 case to a federal court in New York, which would have led to the trial being heard just blocks from the site of the attacks, but fears about costs and security scuppered that plan.

Obama came up with a halfway measure for the accused in Guantánamo. Where possible, they would be prosecuted in a civilian court in the US; where not, they would be tried in a revised military commission in 2009 that had extended rights for defendants. Evidence obtained using torture or cruel treatment would be prohibited, though the effect of torture remains an issue in the 9/11 case.

Since 2010 Congress has blocked further transfers out of Guantánamo, leaving in limbo 86 prisoners who were approved for transfer to their home countries, along with another 46 considered too dangerous to release and impossible to prosecute because of insufficient proof or evidence tainted by torture.

A mass hunger strike among 104 of the 166 remaining Guantánamo detainees in recent months has heaped pressure on Obama. Last month he rekindled efforts to close the camp.

Death-penalty case
Amid this hiatus the 9/11 death-penalty case drags on. The fourth series of week-long pretrial hearings since the charges were brought in May 2012 is dominated by defence lawyers examining an admiral who ran the military commissions and a former Guantánamo prison commander. They are being questioned about restrictions imposed on communications between the accused and their lawyers.

The CIA looms large throughout the five days of proceedings, although it is referred to only as the “agency” or the “agency that shall remain nameless”.

When the CIA or its work is referred to, particularly in the defendants’ “rendition, detention and interrogation”, which one defence lawyer says is a euphemism for torture, the judge brings the proceedings into a closed session, shutting off the audiovisual feed to the gallery and excluding the defendants.

The flurry of legal motions, the private sessions and an unreliable video link to witnesses in the US reflect the complex nature of a case that is breaking legal ground while grappling with the secrecy about how five men were treated by the CIA for a decade. The two sides are fighting over the rules of a game long before the game can be played.

On Thursday, Jim Harrington, bin al-Shibh’s 68-year-old lawyer, passes a note to his 49-year-old co-counsel, Lieut Cmdr Kevin Bogucki of the US navy. “I’ll be dead six years before this trial is over,” it reads. Later, as the hearings drag on further, he scratches out part of the note, telling Bogucki: “You’ll be dead six years before this trial is over.”

Frustrated by “unworkable” practical problems in the 9/11 case, Harrington estimates that it will be 2015 at the earliest before the trial begins.

The case is beset with complications: the defence doesn’t know if the US constitution applies in the Guantánamo military tribunals because the judge hasn’t ruled on it, he says; every pretrial motion is litigated with witnesses being called, unlike in a federal court; the naval base is isolated and takes time to travel to. This, along with the security issues in the case and the classification of secret information, adds to the slowness of the process.

“If this was a terrorism case in the US we could bring whatever materials to the case that we wanted and talk about what we wanted,” says Harrington, whose parents came from Bere Island, in Co Cork, and from Tullow, in Co Carlow. He sees the potential precedents set by the military court as “very dangerous”.

“It will be more dangerous if they are proven right by the supreme court,” he says. “It will undermine the constitutional fabric of the country.”

Mixed feelings
The 9/11 family members and those injured in the attacks who visited the pre-trial hearings last week have mixed feelings about whether Guantánamo was the place to try the men. Glenn Morgan had hoped the trial would take place in New York.

“We have to be very proud of our judicial process in the US. It would have been a nice opportunity to showcase that,” he said.

Still, he has faith in the Guantánamo court. “This is not some kangaroo court — this is serious; it is not rushing someone through a process,” he said.

Joe Torrillo, a New York firefighter who was buried twice when the Twin Towers fell, can’t understand why the US government is paying for the men’s defence lawyers. “That would be like my wife picking out a dress for me to take my girlfriend to a Broadway show,” he says.

An emotional Linda Gay also finds this hard to accept. After composing herself for a courtesy meeting with a military lawyer defending one of the 9/11 accused, she says she told them not to forget her husband’s name, nor that he worked for a weapons company that helped them win a lot of wars.

Judging by the pace of this week's hearings, it will be some time before this legal war is even fought, never mind won.


Prisoners protest: 104 of 166 Guantánamo detainees are on hunger strike
"No food – no problem" reads a plaque on the wall of the McDonald's on the Guantánamo US naval base. The "Hanging in There" award honours staff for times when supplies to the remote US outpost, on the southeastern tip of Cuba, have run out.

At the other side of the base, on the heavily fortified seashore, is the controversial Guantánamo prison where 104 of the 166 prisoners have been on hunger strike since February. They are protesting about their indefinite detention and the ruffling of personal items, including Korans, during prison searches.

This week 44 prisoners were force-fed to stop them starving to death. The US department of defence refers to the medical term “enteral feeding”, a policy backed by US federal-prison protocol.

The prisoners receive a nutritional drink called Ensure. It comes in chocolate, strawberry and vanilla flavours, and is administered through a 3mm gastric tube that is inserted through the nose to the stomach after prison guards restrain them. Some take the drink voluntarily.

Prisoners must miss nine consecutive meals for the US military to class them as being on hunger strike. The decision to force-feed is based on a prisoner’s body mass index and on medical condition. Medics administer the twice-daily feeds. Thirty-seven staff have been added to the camp’s medical team to deal with the increase in the number of hunger strikes in the past two months.

“We believe it necessary and humane, and we have an obligation to preserve life and prevent deaths of detainees [by suicide],” says Lieut Col Todd Breasseale, a US defence department spokesman, in Guantánamo.

Some detainees fight back. Guantánamo’s prison spokesman, Capt Robert Durand of the US navy, says a nurse was punched twice a few weeks ago when a detainee managed to loosen a restraint. Guards have had “cocktails of urine, faeces, blood, semen [and] spit” thrown on them on a daily basis, he says.

For some prisoners the strain of indefinite detention has been too great. Seven have taken their own lives since January 2002.

Ahmed Zuhair, a former prisoner at Guantánamo, who stopped eating in June 2005 and remained on hunger strike until he was sent home to Saudi Arabia in 2009, told the Associated Press last week that the effect of force-feeding was “so excruciating” that he is unable to sleep at night because of the pain in his throat.

The Democratic senator Dianne Feinstein, head of the powerful senate intelligence committee, told the US defence secretary, Chuck Hagel, this week that the force-feeding ran counter to international standards, medical ethics and practices at US prisons. She called for a more humane treatment.

Lawyers for Mustafa al Hawsawi, one of five men accused of planning the 9/11 attacks, asked the court last month to block any future attempt to force-feed him, saying he had a right to refuse food.

“Guantánamo Bay is the new Devil’s Island,” his filing says. “A prison that owes its existence to political expediency; it is in a class with British prisons where alleged members of the Irish Republican Army, in desperation at their own hopeless imprisonment, resorted to hunger strikes.”

Tommy McKearney, a former IRA prisoner who spent 53 days on hunger strike in Northern Ireland between October and December 1980, says hunger striking is “an absolute last resort” for a prisoner.

“They are sending a message that the Americans can do what the Americans like, that they have no power and that the Americans are immune from any sort of moral suasion,” he says.

McKearney, who was convicted of killing a part-time Ulster Defence Regiment soldier, says most of Guantánamo’s detainees have been held without charge for more than 10 years and that this will force them to take up the last weapon available to them; to try to starve themselves to death.

“They have calculated that they have no other option,” he says. “They don’t have a support base within the US. Their only hope is that they are putting their lives at the mercy of the international community and hope that it does something to shame people into doing something.”