Now passing its tenth year of pre-trial, the 9/11 military commission involves five men on trial for war crimes and terrorism in relation to the attacks against the USA on 11 September 2001. This article examines specific issues regarding the relationship between the prohibition against torture, national security and the right to a fair trial that have arisen in the pre-trial phase of the case. The most obvious connection between the prohibition against torture and the right to a fair trial has traditionally played out in the context of the exclusion of evidence obtained through torture. However, the frenetic nature of engagement between the defense and the prosecution in the courtroom reinforces that the US government’s efforts to hide the torture of the defendant victims diminishes the further range of protections that make up the right to fair trial, in particular this article examines various components of the right to an effective defense. In analysing these issues, the article contributes to the legal literature and understanding about the interrelated nature of torture and fair trial in the Guantánamo military commissions by demonstrating how efforts to conceal torture using the guise of national security prevents the defendants from fully engaging their rights to a fair trial in the 9/11 military commission.

Introduction

The military commissions taking place in Guantánamo are the culmination of numerous missteps taken by the USA in its post-11 September 2001 counterterrorism campaigns. In pursuit of national security objectives, the USA violated the prohibition against torture and cruel, inhuman or degrading treatment in contravention of international humanitarian law (IHL) and international human rights law (IHRL). The ongoing case of US v Khalid Shaikh Mohammed, et al. (9/11 case) highlights a key question about how, in pursuit of national security objectives, the US government’s infliction of severe physical and mental suffering amounting to torture challenges the fundamental right to fair trial. It demonstrates how the breach of a fundamental norm of international human rights law—the prohibition against torture—leads to the violation of other human rights.

Now passing its tenth year of pre-trial, the 9/11 case involves five men on trial for war crimes and terrorism in relation to the attacks against the USA on 11 September 2001 (September 11).1 Set against traditional doctrinal sources, this article examines specific issues regarding the relationship between the prohibition against torture and the right to fair trial that have arisen in the pre-trial phase of the case. The analysis relies heavily on the author’s observations accumulated while observing 10 rounds of pre-trial proceedings and examination of the associated military court filings and transcripts. However, it is only in bearing witness to the live proceedings that the US government’s persistent recourse to national security is recognized as an excuse for its failure to address the well-documented instances of torture against the defendants. The spectre of torture permeates every aspect of this military commission and, in turn, has corrupted the delivery of fair trial rights. The most obvious connection between the prohibition against torture and the right to fair trial has traditionally played out in the context of the exclusion of evidence obtained through torture. However, the scenes that unfold during each courtroom session reinforce that the US government’s efforts to hide the torture of the defendant victims further diminish the range of protections that make up the right to fair trial. In analysing these issues, the article contributes to the legal literature and understanding about the interrelated nature of torture and fair trial in the Guantánamo military commissions by demonstrating how efforts to conceal torture using the guise of national security prevents the defendants from fully engaging their rights to fair trial in the 9/11 case. It also provides a window into the complexities associated with prosecuting alleged terrorists under the US military commission system in Guantánamo under the Military Commissions Act of 2009 (MCA).2

The US government’s failure to directly address the issue of torture of the 9/11 case defendants undermines the capacity of the military commission to deliver justice in concert with accepted interpretations of the right to a fair trial. As will be revealed below, the enduring physical and psychological effects of torture impacts on these defendants in variable, insidious ways. To date, the government prosecutors and the military court have refused to consider how the systematic torture, and ongoing grievances stemming from torture, impact on the defendants’ fair trial rights. To develop this argument, Section 2 introduces the concise history that led to the 9/11 military commission in Guantánamo. Section 3 examines the general application of the right to fair trial in the military commissions and provides a brief overview of how the prohibition against torture was breached in relation to the five defendants whether applying customary international law, the Geneva Conventions,3 the International Covenant on Civil and Political Rights4 (ICCPR) or the Convention against Torture5 (UNCAT). Section 3 further explores the impact of the US torture programme on the Guantánamo military commissions in the context of select components of the right to a fair trial recognised in ICCPR Article 14. The prohibition of the use of evidence obtained through torture is addressed initially followed by three auxillary issues relating to ensuring the right to fair trial, all of which are shaped by the government’s unremitting national security mantra. Specifically, the article directly engages with issues surrounding interference with the right to prepare an effective defense, including: the ability of the defense to gather and challenge evidence as part of the right to equality of arms; the ability of the defendants to participate in their own defense;6 and, finally, the repeated government intrusion into the lawyer–client relationship, ranging across the invasion of the lawyer–client privilege, harassing present and past defense team members and planting intelligence operatives on defense teams. The article concludes that the illegality of US actions in the torture of defendants, the consistent use of national security to impede the effectiveness of the defense teams and the lack of meaningful redress for such actions seriously impede the government’s capacity to prosecute the defendants in line with fair trial standards.

Guantánamo, Torture and the Military Commissions

In the wake of the September 11 terror attacks on US soil the Bush Administration worked quickly to develop a two-tiered campaign using convoluted legal argumentation to dismantle the long-understood parameters of the prohibition against torture.7 First, the US disavowed the application of the prohibition by invoking exceptional circumstances cloaked in post-September 11 victimhood. Second, the US attempted to renegotiate its obligations under international treaties by redefining key legal terms and debates in both US law and international law relating to torture and heretofore unrecognised categorised adversaries (‘alien unprivileged enemy belligerents’).8 The rationalisation developed along the lines of what Cohen describes as ‘implicatory denial’—that the use of torture was justified because those tortured were terrorists and poised to cause further imminent harm to the USA.9 The actions taken were consistently framed as necessary to national security. Alternatively, the USA also argued that ‘enhanced interrogation techniques’ (EITs) did not rise to the level of actions amounting to torture. The campaign to defend US national security was realised in part through extraordinary rendition, detention and interrogation (RDI) operations across the globe.10

Guantánamo Bay Naval Station, Cuba (Guantánamo), evolved from a little thought of naval station to an infamous counterterrorism detention facility in the midst of crisis law and policy responses following the September 11.11 Most of the men detained in Guantánamo suffered ill treatment and many were tortured on CIA black sites before or after their arrival in Guantánamo.12 This treatment had a profound effect on the way in which the USA began to decouple national security from the right to fair trial. As the months and years that followed the first arrivals in Guantánamo revealed, the attempted suspension of habeas rights was the beginning of a consolidated effort by the government to deny basic human rights to suspected terrorists. Through a series of cases13 the denial of habeas was determined a violation of the US Constitution as were subsequent legislative efforts to engage the Suspension Clause and suspend the writ of habeas corpus.14 What followed was an expanding legal and political narrative of the post-September 11 US engagement with torture. This included litigation against private contractors working on behalf of the US government15 and successful claims before the European Court of Human Rights against European countries facilitating the RDI programme.16 A number of complaints against the USA also were raised before UN human rights bodies.17 In 2014, the US Senate finalised a 6000 plus page summary report of the Senate Intelligence Committee Study on the CIA Detention and Interrogation Program18 (SSCI Report) documenting the CIA’s systematic use of ‘enhanced interrogation’ techniques widely recognised as torture—the ‘original sin’ in its counter-terrorism campaign.19 Subsequently declassified memorandums clearly demonstrate that the US government anticipated that it would be using interrogation techniques the world would view as torture and, as a result, expended great efforts to develop a ‘a novel application of the necessity defense to avoid prosecution of U.S. officials who tortured to obtain information that saved many lives’.20 Despite the documentation of government efforts to prepare for the backlash against government-sanctioned torture in the SSCI Report, the US government, particularly the US Congress, has maintained an exceptionalist approach to this period of malfeasance and denied redress to victims of torture and ill-treatment carried out through the RDI programme.21

A. The Torture of 9/11 Military Commission Defendants

Five Guantánamo detainees are being tried in the 9/11 military commission for variable charges in relation to the September 11 attacks.22 The case is governed by the MCA, which authorises the president to establish military commissions to try ‘alien unprivileged enemy belligerents’ for violations of the laws of war and other terrorism-related offences.23 Despite the reliance on the military offensive pursued outside US territory to capture these ‘unprivileged belligerents’, from the outset the USA denied the applicability of the Geneva Conventions to anyone associated with al Qaeda.24 The MCA attempts to amalgamate different aspects of the laws of war, military law and national criminal law while excluding any consideration of the many years of arbitrary detention, torture and ill-treatment of the individuals detained even before the MCA was enacted. The persistent refusal to consider redress for the torture and ill-treatment inflicted upon the defendants expressly violates the US’s international legal obligations to ensure redress under the Geneva Conventions, ICCPR Article 2(3) and UNCAT Article 14.

Despite US assurances that it would ‘treat [detainees] humanely … and in keeping with the principles of the Geneva Convention’, detainees deemed of ‘high value’ experienced far different circumstances.25 Each of the five defendants was held incommunicado at various classified black sites for over two years prior to their transfer into the custody of the US Department of Defense in Guantánamo. During those years, the CIA—an agency of the US government—subjected each of the five men to a sustained programme of torture in direct violation of both USA and international law. Though the CIA and members of the US Department of Justice attempted to reframe their actions as something less than torture, the systematic treatment revealed by the SSCI Report supports a finding that regardless of the government’s nuanced approach to terminology, the abuse against these men was torture.26 In the context of the 9/11 case the key question is whether acts amounting to severe pain or suffering, whether physical or mental, were intentionally inflicted for the purposes of obtaining information or a confession with the consent or acquiescence of a public official and how this impacts upon an ongoing trial. Although the ICCPR does not demand the element of specific intent, this dimension of UNCAT Article 2 has been an ongoing debate in the military commissions as the US reservations to the convention outline that ‘to constitute torture, an act be specifically intended to inflict severe physical or mental pain or suffering’.27

From the SSCI Report, it is clear that the lead defendant in the 9/11 case, Khalid Shaikh Mohammed, was assaulted brutally by CIA operatives within minutes of his transfer into CIA custody in Afghanistan at the black site known as ‘Cobalt’ in March 2003.28 He was subjected to combinations of EITs equating to torture, such as stress positions, sleep deprivation, water dousing29 and rectal rehydration (while a recognised medical procedure, it was a much feared power exercise over detainees),30 producing physical stress and harm in contravention of the torture prohibition as interpreted in customary law or under the UNCAT, the ICCPR and the Geneva Conventions. Furthermore, capitalising on Mohammed’s knowledge that two of his young sons had been taken into custody at the same time, an interrogator threatened that he would ‘cut his son’s throat’ if he did not provide requested information in a timely manner.31 Geneva Convention III prohibits threats against a detainee for failure to provide information as does the US Torture Statute.32 The US reservations to the UNCAT further clarify that ‘in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from … the threat that another person will imminently be subjected to death, severe physical pain or suffering’.33 Examined individually, each of these EITs was designed to inflict severe physical or mental suffering in order to induce compliance and malleability to questioning. As noted in the SSCI Report, they were applied cumulatively in order to establish ‘total control’ over the victim.34 Mohammed was then transferred to black site ‘Blue’ in Poland35 and the techniques applied to him intensified as he was subjected to waterboarding, described as ‘a series of near drownings’, and periods of sleep deprivation lasting up to 180 hours.36 He was ultimately water boarded 183 times over 14 days,37 despite an early observation that it ‘[was] not working in gaining [Mohammed's] compliance’.38 He was transferred to Guantánamo on 4 September 2006 for the purposes of prosecution—over three years after the intense waterboarding sessions.39 The techniques applied by the CIA to Mohammed with the consent of the Bush Administration were unequivocally inflicted to cause severe physical pain and suffering or mental suffering for the purposes of obtaining information, as detailed over many pages of the SSCI Report.40 He has never been outside of US control since his capture in 2003.

The other four defendants were treated similarly. Ramzi Bin al Shibh was subjected to EITs for approximately 34 days and kept in social isolation for almost 2.5 years following his capture on 11 September 2002.41 He was moved around various classified detention facilities from his time of capture until his transfer to Guantánamo on 4 September 2006. As will be discussed below, the severe mental and physical pain he suffered has had enduring effects that impact his ability to engage with the military commission process. Pakistani authorities arrested Khallad bin ‘Attash and Ammar al Baluchi together in April 2003 and upon transfer to the CIA a few days later they were immediately subjected to EITs over a period of months.42 They were held on various black sites until their transfer to Guantánamo on 4 September 2006, again for the purpose of prosecution for terrorist activities.43 The CIA waterboarded Mustafa al-Hawsawi and further subjected him to rectal abuse to such a severe extent that he suffered irreparable physical damage.44 The Human Rights Committee (HRC) and the Committee against Torture (CAT) both recognise rape and other forms of sexual violence as a form of torture.45 The SSCI Report details of the abuse inflicted upon al-Hawsawi easily fit within the definition of rape whether under the current US definition or international definitions.46 Despite having been noted as being ‘in good health’ upon his arrival in Guantánamo, the physical scars of torture have impacted him every day since his transfer to the top-secret detention facility in 2006.47

Much of the evidence of what happened to the defendants on the black sites remains classified or has been destroyed by the government, despite defense efforts to preserve this crucial information. While the unavailable evidence is necessary to construct an accurate account of who perpetrated which illegal acts against their clients, the SSCI Report delivers enough of a picture of the treatment of the 9/11 defendants that the conclusion that torture as well as other cruel, inhuman and degrading treatment was committed is not difficult to reach.48 The testimony of James Mitchell, one of the ‘architects’ who both designed the RDI programme and administered EITs, confirmed many instances of torture documented in the SSCI Report.49 While the US legal definition of torture is not as expansive as the UNCAT definition, the USA has recognised its obligations under the UNCAT, stating that ‘officials of all government agencies are prohibited from engaging in torture, at all times, and in all places, not only in territory under U.S. jurisdiction’.50 As discussed below, the US government continues to conceal evidence of its wrongdoing despite widespread acknowledgement of the treatment that occurred on black sites. None of the perpetrators of torture against these defendants have been prosecuted nor have the defendants been provided with rehabilitation pursuant to UNCAT Article 14 despite international calls for justice.51 Due to the documented abuse of the men detained in the RDI programme, this analysis acknowledges that not only instances of torture but also the widespread, prolonged use of lesser prohibited treatment recognised as falling outside the strictest definition of torture also contributes to the issues raised below in the context of the impact on fair trial. The next section turns to an examination of how the failure to redress violations of the torture prohibition has played out in the 9/11 military commission pre-trial proceedings.

The Right to Fair Trial in the 9/11 Military Commission 52

This section examines how the enduring effects of torture and ill-treatment of the alleged September 11 plotters have corrupted fundamental aspects of the right to fair trial in the 9/11 military commission. Despite the prohibition against torture’s status as a jus cogens norm of customary international law, it is clear that torture continues to take place across the world. Impunity for torture has an undeniable impact on other human rights, the rule of law and the effective carriage of justice. Much like a house of cards, if a breach to a fundamental norm occurs, other human rights protections will often fall. This reflects the interrelatedness of human rights and reinforces the difficulty in limiting the collateral impact of a breach of the prohibition against torture.

Prosecution is an essential feature of the administration of justice. The administration of justice is the sine qua non for the rule of law. Therefore, it is necessary to consider what minimum standards are required to ensure prosecutions comply with the rule of law. The military commission is arguably not the correct forum for prosecution of the 9/11 case and exacerbates the risk to fair trial rights.53 However, despite the problems this extraordinary court raises, this issue is outside the scope of this article, which instead focuses on incremental interferences with the right to fair trial. The right to a fair trial and the range of guarantees that fall under this umbrella right are viewed as fundamental to the rule of law.54 It would not be possible to scrutinise every element of fair trial in the context of the 9/11 case in a single academic article. Therefore, the present analysis addresses a handful of the most visible fair trial issues raised as a direct result of the illegal torture of the defendants by US agents. This visibility is obscured in the thousands of black and white military commission filings. It is only in observing the live military commission proceedings that the string of incremental fair trial violations can be reconciled with the (often) mundane written word. The next subsection sets out the legal parameters of the right to fair trial. This is followed by an examination of the exclusion of evidence in the aftermath of torture. Next, three issues that interfere with the ability of the defendants to mount an effective defense will be explored, including: the lack of equality in arms between the prosecution and defense; the defendants’ abilities to physically or mentally participate in their trials; and invasions of lawyer–client privilege.

A. Establishing the Right to Fair Trial in the Military Commission

In the 9/11 military commission, the right to a fair trial suffers in direct response to prosecuting defendants subjected to systematic torture in the CIA RDI programme. The effort of the US government to conceal the full story of the torture of the defendants while in CIA custody has generated the bulk of the 10 years of pre-trial litigation. The following analysis illustrates the connection between the breach of the torture prohibition and subsequent interferences with the right to fair trial using the pre-trial proceedings in the 9/11 case. Reflecting the reinterpretation of the torture prohibition by those that facilitated the legal basis for its use,55 the following argues that the manipulation of the various components of the right to fair trial by the government in the military commissions is equally disingenuous. The implementation of fair trial standards varies across different national criminal, military and international criminal legal systems, with a large amount of the international literature focusing on variable international criminal trials, the Rome Statute of the International Criminal Court56 and its practice. This article focuses on the Geneva Conventions and the ICCPR for the simple fact that the USA is not party to the Rome Statute. However, common standards or points of reference across the variable international agreements will be noted for the purpose of establishing a baseline international conception of fair trial guarantees.

Despite the military commission being an extraordinary court, the right to fair trial should still apply.57 The MCA is a relatively untested legal framework that pieces together half-articulated military law, national law and international law, ultimately delivering incomplete responses to a range of procedural and substantive matters raised in the proceedings.58 The MCA has been described as having ‘more punitive legislative history’ than any other law in history.59 It exemplifies what happens when a State partially acknowledges it has breached human rights, in this instance the prohibition against torture as documented in the SSCI Report, but facilitates continued impunity. At the same time, the State must try to construct a response that will fulfil notions of justice for victims of the crimes charged in line with the law as understood prior to the breach. Unfortunately, the effort made with the MCA only thinly veils the illegalities that lay beneath. The difficultly in navigating such an incoherent maze of laws is demonstrated in the over 10,000 filings that exist in year 10 of the 9/11 case pre-trial hearings.60

The loss of the exigency that normally accompanies the extraordinary use of military commissions demands that another layer of legal norms be applied—that of IHRL. The right to fair trial is comprised of a mix of substantive and procedural guarantees, as outlined in ICCPR Article 14. The guarantees are designed to ensure that every individual charged with a criminal offense is able to operate equally within the law. The HRC has further refined the minimum fair trial standards through its jurisprudence and there is a range of literature on the broad concept.61 Much of the literature that exists in the context of the Guantánamo military commissions focuses on the issue of habeas corpus,62 though fair trial in the context of terrorism more broadly has also been given due attention.63 In contrast, this article teases out the content of some aspects of the right to fair trial to demonstrate that even if habeas protections are preserved, there remains a host of other issues that can render a judicial process impotent when the defendants are also torture victims. Unlike much of the literature, this analysis focuses on the pre-trial proceedings in an ongoing case that is the largest criminal justice trial in US history.

Over a decade ago Schmid set out a method for determining the fundamental elements of the right to fair trial regardless of the defendant’s status under international law in direct response to the growing number of individuals detained and charged with terrorism.64 Relying on the principle of consistency, her method suggested looking across the different regimes, including IHL, IHRL and customary international law, to see what common minimum standards for due process exist. From a positivist perspective, the concept of fair trial, even in the context of armed conflict, is one that has been reiterated in a vast range of international agreements.65 As prior to charges being rendered against the 9/11 defendants the USA argued their detention as of right under the laws of war, the Geneva Conventions offer a good starting point for this analysis. Geneva Conventions Article 3(1)(d) provides the basis for the right to fair trial in IHL: ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples’ (emphasis added). Additional Protocol I to the Geneva Conventions (Protocol I) Article 75 defines the ‘fundamental guarantees’ necessary to protecting human rights during armed conflict which should be relevant to the 9/11 defendants in light of the US assertion that they ‘are all law-of-war detainees (and have been so since their captures in 2002 and 2003)’.66 Though the USA is not a party to Protocol I, this elaboration is instructive for determining which elements of the right to fair trial are ‘indispensable’ in the context of IHL. Arguably, the following Protocol I elements should be included: ‘all necessary rights and means of defence’ (Article 75(4)(a)); ‘the right to attendance and examination of witnesses on his behalf’ (Article 75(4)(g)); ‘the [defendant’s] right to be tried in his presence’ (Article 75(4)(e)), each of which are discussed below.67 Article 85(4)(e) of Protocol I further adds that depriving a person of fair trial is a ‘grave breach’ of the Conventions, not just the Protocol.68 Notably, in 2011 the US confirmed that ‘Article 75 is a provision of [Protocol I] that is consistent with our current policies and practice and is one that the United States has historically supported’.69 Article 75 has also been argued to represent customary international law.70 In light of the ratification of the Protocol I by 174 states, the US recognition of the applicability of Article 75 protections and the support for its rules representing customary international law, the combined guarantees of Common Article 3(1)(d) and Article 75 should be understood as forming the basis of the ‘indispensable’ elements of the right to fair trial in IHL.

After determining the IHL fair trial guarantees the analysis then must consider the core of ICCPR Article 14 in light of its quasi-derogable nature. The USA never formally derogated from the ICCPR, which reinforces the use of ICCPR Article 14 as a reference point. Formal derogation aside, it is worth considering the relationship between the States’s right to derogate from the ICCPR and the right to fair trial in order to clarify a response to any departure from fair trial rights. The derogation provision of ICCPR Article 4 does not list fair trial as a non-derogable right. However, the right to derogate under Article 4 was developed with the idea that emergencies triggering a State’s right to derogate could be predicated on some form of armed conflict or terrorism.71 Therefore, ‘any derogation must not circumvent the protection of non-derogable rights’, such as the prohibition against torture.72 When a government prosecutes an individual that it has subjected to torture in violation of its international obligations, it follows that the defendant has an extraordinary right to remedy in an attempt to rectify that illegality in order to ensure that fair trial guarantees are protected. In 2001, the HRC outlined that Article 14 is never derogable in death penalty trials, such as the 9/11 case.73 More recently, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism has explained that complete derogation from the right to fair trial could never pass the proportionality test.74 The culmination of the IHRL interpretations of the right to fair trial leans heavily toward full adherence to ICCPR Article 14 in the 9/11 case where the defendants were tortured, have been detained by the USA for close to two decades and are facing the death penalty for their alleged crimes.

Due to the long duration between the initial detention (2002–2003) and charge of the defendants in the ongoing 9/11 case (2011) as well as recognition that human rights standards can be applied in concert with IHL standards,75 particularly once a conflict has ended,76 the right to fair trial will be examined predominantly through the lens of ICCPR Article 14. As de Londras notes, unlike national laws, IHRL appears to have resisted the panic response to September 11, thus fair trials standards have been more consistent in international forums.77 Trials for terrorism in exceptional courts have been identified as a ‘grave concern’ by the Office of the High Commissioner for Human Rights, which gives further impetus to maintain a clear baseline for the consideration of fair trial rights.78 Though the ICCPR is not directly applicable in US courts, each of the components of the right to fair trial is recognised as part of US law either directly or as derived through customary international law. This article demonstrates how claims that the military commission proceedings comply with basic elements of the right to a fair trial, particularly as it stood prior to September 11, ring extremely hollow. The remainder of this article details how variable components of the right to fair trial are immeasurably corrupted as the US Government fumbles with reconciling the right to fair trial with its well-documented breaches of the prohibition against torture.

The following sections explore the components of the right to a fair trial based upon a review of the case filings, trial transcripts and personal observations of the 9/11 case pre-trial proceedings. First, the most obvious link between torture and fair trial—the prohibition of evidence extracted through torture—will be considered in relation to UNCAT Article 15, which has also been recognised as part of the corpus of the ICCPR prohibition against torture. Next, the analysis turns to ICCPR Article 14 to develop a number of the ‘indispensable’ aspects of the overlapping fair trial protections offered by the Geneva Conventions. Under the multifaceted right to develop an effective defense, three issues will be examined: equality of arms between the prosecution and the defense; the ability of a defendant to participate in their own defense; and lawyer–client confidentiality. Ultimately, this work contributes to understanding the relationship between torture and the right to fair trial demonstrating that victims of systematic torture can never fully realise their right to fair trial when national security is consistently used as a lever to erode the rule of law.

B. The Prohibition of Evidence Obtained through Torture

The most obvious connection between torture and fair trial relates to the exclusion of evidence obtained through torture against the torture victim, as reflected in UNCAT Article 15 and the combined reading of ICCPR Articles 14(3) and 7.79 Recognition of this rule is so entrenched that its discussion here should seem a foregone conclusion, yet, the over 40 9/11 pre-trial hearing rounds have endured a tumultuous relationship with this essential element of the prohibition against torture.80 This relationship is addressed first in light of the scene-setting value for the broader purposes of evaluating fair trial features in the Guantánamo military commissions. Section 948r of the MCA codifies UNCAT Article 15, the exclusion of evidence obtained through torture. In Rochin v California, the US Supreme Court opined that ‘coerced confessions offend the community’s sense of fair play and decency’,81 which supports the international position on the exclusion of confessions coerced through torture or other prohibited treatment. At first glance, the MCA appears to reinforce the commonly accepted prohibition against the admission of such evidence. However, there is a crucial exception codified in the MCA, which permits the military commission judge to admit statements gathered through or incident to torture of the accused if ‘the totality of the circumstances renders the statement reliable and possessing sufficient probative value’ and the statement was made incident to lawful conduct and the ‘interests of justice would be best served by admission of the statement into evidence’.82 This potential exception has been the focus of the HRC in its periodic review of the US as the Committee has reiterated that no statements or evidence ‘obtained in violation of [the Article 7 prohibition against torture] may be invoked as evidence in any proceedings covered by article 14, including during a state of emergency’.83 This exceptional US position is the focus of another military commission process that has yet to be settled at the time of writing.84

The ubiquitous interpretation of the prohibition firmly reinforces that torture can never be pursuant to ‘lawful conduct’ and the SSCI Report reiterates that CIA conduct during the RDI programme violated US and international law.85 The MCA exception suggests that its drafters gave extensive consideration to the use of information extracted during the RDI programme using EITs, despite consistent findings that the extracted information was of little or no value in determining the existence of future terrorist attacks.86 While the information extracted may have been of little intelligence value, for the purposes of prosecuting the conspiracy behind the September 11 attacks, confessions are extremely important since the actual perpetrators of the hijackings died alongside the victims. The MCA exception suggests coordination between the US legislative and executive branches of government to maximise statements not necessarily derived through torture on the black sites but that could be described as ‘coerced’ due to the defendants’ inability to separate their continuous detention by the USA based on the different detaining arms of the US Government, the CIA or the Department of Defense. Pushback against the MCA exception is also necessary in light of the prolonged and uninterrupted nature of the US control of the defendants between their torture and statements they made following their transfer to Guantánamo. The allegedly incriminating statements made following their transfer are a key reason that torture is a constant theme of the proceedings.

In line with UNCAT Article 15 and MCA section 948r, the government has indicated in open court and in case filings that due to the coerced nature of statements made on black sites it would not introduce statements made by the defendants prior to their transfer into Department of Defense custody in Guantánamo.87 Questions latterly arose about statements taken early in 2007 by the US Federal Bureau of Investigation (FBI) after the defendants were transferred to Guantánamo in order to obtain statements that were admissible for the purposes of prosecution. The government argued for several years that the statements were ‘clean’, in other words, no coercion was used to pressure the defendants to give false evidence and they were thereafter referred to as the ‘Clean Team Statements’.88 In light of the multiple years under complete control by the USA it is unlikely that any of the defendants would consider the simple fact that a different US agency was questioning him to be a definitive indicator that he would not be tortured again. Thus the suggestion that the statements were not a ‘fruit of the poisonous tree’ is a point of controversy despite the US government’s complete eschewing of this line of reasoning. Furthermore, defense investigation, declassification of further documents and testimony by a small number of key witnesses have revealed glimpses of FBI collusion with the CIA during the period that EITs were applied. These revelations called into question the ‘cleanliness’ of the Clean Team Statements, which were subsequently referred to as 'Letterhead Memorandum Statements' so as to avoid preconceived determinations of admissibility. As defense teams continued to pursue the extent to which this relationship may have tainted the statements, increasing restrictions on their abilities to effectively investigate were placed on them at the bidding of the government in the name of national security.89 In line with the prohibition on the use of evidence obtained through torture, in summer 2018 the Clean Team Statements were excluded by the original judge in the case as derivative evidence.90 Suppression of the statements was a direct remedy to the narrowing investigatory powers requested by the government on the basis of national security rather than a remedy acknowledging the years of torture and ill-treatment of the defendants.91

However, in the bizarre procedure and chronology of the 9/11 case, the ruling of the first judge was challenged through a motion for reconsideration when a second judge arrived in the autumn of 2018. Rule for Military Commissions 905(f) permits the military commission to reconsider any ruling prior to the authentication of the record of trial; this includes decisions by judges who leave the case.92 Almost immediately after the original judge’s departure, the government petitioned for, and was granted, reconsideration of the suppression order with the second judge noting that suppression of the Clean Team Statements was premature.93 But, in the roller coaster of the military commissions, this was not the windfall anticipated by the government. A third judge was appointed after the nine-month temporary tour of the second military judge and in a bid to move the proceedings closer to an actual trial date, the new judge fast-tracked witness testimony on the relationship between the FBI and the CIA RDI programme, arguably not the outcome the government had intended in light of the many motions to curtail defense access to the very witnesses being called.

Testimony given in the autumn of 2019 and going back at least as far as December 2017 revealed that the FBI had been involved in the shaping of CIA interrogations performed on black sites and, inevitably, in conjunction with torture.94 Thus, defense counsel continues to argue that for the purposes of admissibility, the statements are intimately linked to the systematic torture endured by the defendants at the hands of the CIA.95 The only consistency on this particular trial issue is that the government refuses to consider that the defendants could never give testimony that is not coerced despite the compounding factors of torture, ill-treatment and incommunicado detention during the years they spent in US custody prior to the 2007 statements.

At the time of writing, this issue remains unresolved but demonstrates how the procedural rules and tenuous, reversible nature of military commission rulings under the MCA impede progress in the trial.96 As the 9/11 defendants were detained ostensibly in connection with the conduct of an armed conflict, the finite details of normal procedure in a US criminal case are not an equivalent comparison. However, for the purposes of adhering to the prohibition against torture recognised under any of the international legal regimes the details are important. The basic threshold notions of justice suggest that the multi-year duration of torture and black site detention of the defendants would imply that any statements by the defendants were coerced. Even if adopting the government’s attenuation approach to the defendant’s so-called Clean Team/Letterhead Memorandum Statements, which ignores the proposition that these defendants could never give voluntary statements, revelations about FBI involvement with the CIA interrogations result in insufficient attenuation between the EITs applied and any statements given outside the presence of their lawyers. The government’s assertion of attenuation is further debased by revelations that the FBI was undoubtedly feeding into the interrogations of individuals on black sites even after its alleged parting of ways with the CIA in July 2002.97 It is also worth noting that the admission or suppression of the Clean Team/Letterhead Memorandum Statements links directly to a number of further exemplars that demonstrate how the failure to address the torture of the 9/11 defendants seriously impedes fundamental aspects of the right to fair trial.

C. Preparing an Effective Defense in the Aftermath of Torture

Adequate time and means for preparing a defense is a principle guarantee recognised in ICCPR Article 14(3)(b), Geneva Conventions Common Article 3(1)(d)98 and Protocol I Article 75(4)(a), which is equally part and parcel of US Constitutional protections.99 The HRC continues to reiterate the importance of adequate trial preparation in ensuring the guarantee of a fair trial.100 The five men charged with war crimes and terrorism under the MCA undoubtedly have received far less protection than individuals charged and tried in the US domestic legal system. This article does not argue that distinctions cannot be made across different legal regimes in terms of the application of fair trial rights. However, in line with the consistency principle espoused by Schmid, there are a number of fundamental legal protections that must never be breached regardless of the different applicable legal regime.101 Here I examine three aspects in the preparation of an accused’s defense in the aftermath of torture that are intended to ensure the fundamental nature of the right to fair trial: equality of arms; the ability of the defendant to participate in the proceedings; and sanctity of the lawyer–client relationship. In terms of the ability of defense lawyers to actually be effective in their roles there are no doubt a number of further elements to consider but these are not examined here due to space limitations. The sections below highlight how these fair trial issues arise as a direct result of the CIA torture programme and the government’s constant recourse to national security as a means of obfuscating fair trial guarantees. Torture happened but that is not the end of the story for the 9/11 defendants. In unpacking the elements of what protections constitute a fair trial, the intent is to query to what extent are breaches of individual components of the right recoverable in the context of a prosecution. In other words, at what point do the weights of incremental infractions of variable significance accumulate to topple the scales of justice?

(i) There can be no equality of arms for torture victims

Essential to any democratic conception of the pursuit of justice in a trial proceeding is a level playing field or, at the very least, equality of arms between the opposing sides as well as the protection of the defendant’s individual rights.102 The HRC has detailed that equality of arms under ICCPR Article 14 demands ‘that each side be given the opportunity to contest all arguments and evidence’.103 The principle is also reflected in Protocol I Article 75(4)(a and g). In a criminal trial this requires an assessment of the defendant’s physical and psychological wellbeing, particularly when they are known victims of systematic torture. For the 9/11 defendants, this determination demands access to their medical and detention history for the many years in which they have been held in US custody. Not only does this type of information help paint an accurate picture of treatment the defendants experienced in US custody, it also speaks to the complicity and accountability of multiple US sanctioned actors and agencies in post-September 11 counterterrorism efforts. Access to evidence relating to treatment of the defendants on black sites as well as to the defendants’ continually developing medical records has been, for the many years of pre-trial, a one-sided access contest that was led by the government. This has made an appearance of ‘equality of arms’ difficult to achieve.

Despite all defense team members in the 9/11 case holding the requisite security clearance to access the classified documents necessary to defending their clients as well as to discuss the experiences of their clients while in CIA custody the government continues to withhold countless files and bits of information from defense teams on the basis that access would be detrimental to national security.104 When the prosecution withholds information and testimony about activity that may have impacted the defendant’s health, well-being or detention history, the defense is deprived of equality of arms with the prosecution. Trechsel notes that there is a comparative element in the determination of whether a defendant has been disadvantaged.105 Assessing the physical and mental fitness of a defendant is crucial for developing the basis of the lawyer–client relationship, discussed below, but also for determining the defendant’s ability to contribute to the development of their defense. On paper, the MCA reinforces ‘[t]he opportunity to obtain witnesses and evidence … comparable to the opportunity available to a criminal defendant in a court of the United States under article III of the Constitution’.106 While the prosecution and defense examinations do not require ‘mathematical equality’, there must be some basic level of proportionality between the opportunities afforded both sides.107 Nonetheless, in the Guantánamo military commissions the government wholly controls the defendants’ access to materials that could aid them in preparing their defense therefore depriving them of equality of arms. The alleged complexities stemming from national security concerns are constantly working to derail justice due to the imbalance of power and access to information between the government and defense teams.

Lawyers have a duty to investigate the facts and evidence presented against their clients. However, a range of issues hamper the 9/11 defense lawyers’ abilities to fulfil this obligation in a meaningful way. At the outset of the 9/11 case, the government sought and was granted a protective order to ensure that classified information was protected throughout the case for the purposes of ensuring national security.108 The same protective order was subsequently amended four times and supplemented by increasingly restrictive guidance. The successive restrictions resulted in severe limitations on the opportunity for defense counsel to access witnesses or evidence relating to the RDI programme.109 Much of this evidence relates to the physical condition of the defendants upon their arrival in Guantánamo as well as ongoing treatment administered, or not administered as the case may be, in the top secret detention facility where the defendants are held. Restrictions placed on defense teams in the name of national security have variously included: unilateral prohibitions on compelling interviews without government approval;110 unilateral use of pseudonyms for medical personnel preventing corroboration of redacted medical records;111 unilateral blanket prohibitions on interviews of any former personnel associated with the RDI programme without government consent,112 and the list continues to expand. As a result, the gaps in information severely limit the ability of the defense to gain a complete account of what happened to their clients during the time they were disappeared into CIA custody and how that treatment impacts their physical and mental conditions today. In response to the government’s unwillingness to produce medical witnesses, defense counsel repeatedly argues that the failure to produce the requested witnesses denies their clients’ rights to the due process of law, to full and effective assistance of counsel, and to be free from cruel and unusual punishment, succinctly summarising the conclusion that all of these issues are comingled.

As discussed in the previous section, the flip-flopping approach to the Clean Team/Letterhead Memorandum Statements and the increasing restrictions imposed on defense investigatory powers will ultimately require some form of remedy to try and re-calibrate the inequality of arms in this particular case. The remedies requested so far include dismissal of the case, removal of the death penalty and suppression of evidence. It is clear from the lengthy pre-trial phase of the litigation that each of the above issues, none of which has been resolved, is a long-running feature of the defense effort to develop a record for the actual trial. These particular instances of inequality of arms between the prosecution and the defense to challenge evidence are merely indicative and represent a small fraction of the examples that exist in the 9/11 case pre-trial litigation.

(ii) Participation in one’s own defense with the scars of torture

This section considers how the psychological and physical effects of torture both hamper the ability of individual defendants to participate in the actual courtroom proceedings as well as their ability to engage with their lawyers in the preparation of their defense. The right to participate in one’s defense is protected by the 6th Amendment to the US Constitution, ICCPR Article 14(3)(d), and Protocol I Article 75(4)(e) and is instrumental to the right to a fair trial. As a starting point, we must recognise that the defendants in the 9/11 case do not have a right to counsel of their own choosing, these defendants have government-assigned and military-detailed defense counsel pursuant to the MCA.113 This reality amplifies the need to ensure the security of the lawyer–client relationship and build a trust relationship between strangers. As this was the decision taken by the US Congress and is the status quo for the particular case under consideration, there is little value in examining this in detail here save to explain that this fact in many ways predetermines other substantial challenges to delivery of a fair trial. This is simply one further element adding to the multidimensional impediments to the fulfilment of the right to fair trial that beleaguers the long-running proceedings in Guantánamo.

It is well documented that torture creates both physical and psychological scarring.114 For this reason, UNCAT Article 14 demands that victims of torture be rehabilitated as part of a redress package. For the 9/11 defendants, each of whom suffered prolonged, systematic abuse in CIA custody, the failure of the US to acknowledge their status as torture victims or to rehabilitate the US-inflicted injuries prevents certain defendants from regularly attending court proceedings. The details of some of the abuse suffered are clearly presented in the SSCI Report and were briefly outlined above. It is sufficient to recall that the physical and psychological after effects of waterboarding, walling and forced rectal penetration variably impede the abilities of the defendants to meaningfully participate in their defense for a number of reasons.

As foreshadowed above, the psychological effects of torture come to bear on the ability of a defendant to participate in his own defense in that at least one of the 9/11 defendants believes he is still being tortured. In the case of Bin al Shibh, this has materialised as possible psychosis in the form of consistent complaints that he is still being tortured or, at the least, subjected to cruel and abusive mistreatment by military guards in the top-secret detention facility.115 He has argued that ‘the use of sounds and vibrations’ in his cell and frequent episodes where he has sensations of being bitten by insects in the night prevent him from sleeping.116 If true, the treatment would no doubt be a violation of the international prohibition against cruel, inhuman or degrading treatment codified in the Detainee Treatment Act and prohibited by the US Constitution, as well as in both IHL and IHRL.117 Resolving issues regarding Bin al Shibh’s mental health is all but impossible due to the defense’s inability to interview medical personnel about his medical records, discussed above, records which could contain information about the extent to which torture may have resulted in permanent physical (brain damage) and or psychological damage causing him to imagine cell vibrations and sharp pain sensations.118

Despite numerous court filings and arguments attempting to get to the bottom of this issue, it seems that he suffers from advanced paranoia or psychosis as a result of his years in black sites, a suggestion that he adamantly denies. His behaviour is not uncommon to torture survivors, as ‘detainees who were subjected to the CIA's enhanced interrogation techniques and extended isolation exhibited psychological and behavioural issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation’.119 The psychological after-effects of torture are compounded by the inability of the court or his lawyers to put an end to what he argues is ‘intentional [sic] subject[ion] to cruel and abusive treatment through sounds introduced’ by prison staff.120 This perpetual psychological torment puts constant strain on his relationship with his lawyers.121 This has manifested on multiple occasions as unwillingness to meet with his lawyers and the cessation of the alleged activity becoming his all-consuming focus. After over 10 years in this military commission process and with a trial date anticipated to be set in 2022, it will be difficult to deliver an effective defense where the client is unable or unwilling to participate. While Bin al Shibh’s agitation is well-documented, an investigation into the possibility that he may be suffering hallucinations as a result of post-traumatic stress disorder following his torture on black sites has yet to be fully realised. This results from the illogical nature of the governing law and procedure of the military commission which is embodied in the reluctance of the government to permit certain defense witnesses, its refusal to approve funding for experts and, not to be forgotten, the fact that the military judge actually has no power to enforce any of the rulings in the detention facility.122

A number of the 9/11 defendants have had brain scans intended to detect the extent to which beatings and the asphyxia caused by repeated walling and waterboarding during EIT sessions has damaged their brains. However, specialist technicians are required to read the scans and though early comment on the scans suggest variable levels of brain damage, at the time of writing, the government has refused to allocate funds to pay for qualified technicians to read the medical data. The cumulative effects of the half-measures and lack of enforcement of the military judge’s orders have trapped Bin al Shibh in a vortex where physical and mental realities symptomatic of torture severely impair his ability to exercise his right to participate in his own defense.

In addition to possible brain damage, further physical indicia of torture prevent at least one defendant, al-Hawsawi, from consistently attending trial. He was subjected to ‘rectal rehydration’ to such a brutal extent that he suffers enduring physical symptoms that do not allow him to sit for prolonged periods. When he does attend trial, he must sit on a therapeutic pillow. It took numerous years of litigation for his lawyers to get the government to provide him with a very basic surgical procedure designed to offer him some relief; he finally underwent this procedure in October 2016. Five years after the operation, al-Hawsawi continues to suffer a myriad of health problems that his lawyers argue relate to the torture techniques applied to him.123 As of yet, however, the military commission seems unwilling to recognise the link between the torture he endured and his behaviour, nor does it seem willing to deliver any meaningful remedy.

(iii) Lawyer–client privilege, torture and trust relationships

The government’s desire to protect further revelations about torture on the black-sites in the name of ‘national security’ is also undermining lawyer–client privilege, another key component to the right to fair trial. As explored above, in an adversarial system the demand to maintain an equal playing field is high. The ability to adequately prepare a defense for those accused of a crime must include prompt access to counsel and confidential lawyer-client communications.124 The exclusion of prompt access is something so foreign to the Guantánamo proceedings that for the purposes of this analysis it will not be considered. Defense lawyers are not permitted to speak with their clients using secure systems from the continental USA, they may only meet face to face at the detention facility on Guantánamo.125 This requires civilian and military counsel to travel to Guantánamo using the available military transport, which is neither straightforward nor reliable.126 Even when the lawyers are given access to the naval station, they have often been denied access to their clients.127 Without immediate communications systems available between counsel and their clients, they are at the mercy of detention facility go-betweens to ensure messages regarding lawyer-client visits are delivered and done so in an accurate and timely manner.

As noted by the HRC, lawyer–client privilege demands that ‘lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter’.128 Even though not expressly outlined in ICCPR Article 14(3)(b) or Protocol I Article 75(4)(a), both of which speak to the right to counsel, the principle of confidentiality is a widely recognised feature of the lawyer–client relationship.129 Confidentiality exists not only to encourage a trust relationship but also to protect the client. In the 9/11 case, the defendants’ only access to the outside world is through their legal teams, save the limited and irregular International Committee of the Red Cross facilitated interactions with family members through video recordings or letters.130 As a result, the lawyer–client relationship in the 9/11 case holds a heightened level of importance for the defendants as their legal teams are their only human contact aside from detention facility or commission personnel and one another.

Prohibiting both overt and covert interference with lawyers and other experts involved in the preparation of a defense is fundamental to the protection of the right to fair trial and goes directly to lawyer–client privilege. On numerous occasions, however, the issue of government invasion of the sacrosanct lawyer–client relationship has been raised in relation to hidden recording devices in the courtroom and meeting rooms,131 intrusion into defense team emails132 and potential intelligence gathering operatives on defense teams,133 among other things. This has resulted in countless defense motions seeking relief for inappropriate government activity in direct relation to the conduct of the 9/11 case. Notably, interference in the defense teams is not necessarily at the behest of the prosecution but so far has not been attributed to a specific US agency. It is thought that these invasions of privilege relate to the government’s desire to know what information being exchanged between the defendants and their attorneys with respect to their treatment on black sites, much of which is classified and speaks directly to mitigation of punishment in the event that any of them are convicted.

Interference with the lawyer–client privilege beleaguered the 9/11 case even prior to arraignment of the defendants and allegations of interference have been a common theme throughout the proceedings.134 On 28 January 2013, during open court, the audio and video feed of the proceeding was shut down by an unidentified source not in the courtroom. In all of the military commission proceedings, a Court Information Security Officer (CISO) is tasked with cutting the audio and video feed in order to prevent classified information from being released into the public domain but until then it was understood that only the CISO could trigger the transmission break. As no one in the courtroom was found to have triggered the break, it was deduced that an unidentified party outside the courtroom had the capacity to listen to the audio transmission and control the transmission feed. The possibility of an unidentified party having the capacity to monitor the audio in the courtroom was highly problematic as on many court days the lawyers meet with their clients to discuss their cases in the courtroom. Thus, the spectre of a potential external interference with the lawyer–client privilege raised the alert for the defense teams. Three days later the five defense teams jointly moved for abatement of the proceedings based on breach of the ‘Fifth, Sixth, and Eighth Amendments to the US Constitution, Section 949 s of the Military Commissions Act of 2009, and Common Article 3 of the 1949 Geneva Conventions’135 because they had ‘substantial reason to believe that the government [was] monitoring privileged communications consistent with the government's focus on gathering intelligence’.136 Subsequently, the existence of recording devices in attorney–client meeting rooms outside of the courtroom was put on record by counsel for Bin ‘Attash.137 Regardless of whether the prosecution had knowledge of the monitoring capabilities, the US Government controls every aspect of the physical existence of the defendants as long-time Guantánamo detainees and is the ultimate duty-bearer in terms of ensuring adherence to the rule of law. Though the different agencies of the government may not brief one another on all movements, the US justice system has never permitted interference with the lawyer–client privilege in this way. But potential surreptitious recording is not the only way in which the government appears to have inserted itself into the lawyer–client relationships.

Intermittently, defense team members, hired by the government, have been discovered to be, or potentially be, informants for different US government agencies. While it sounds like something out of a spy novel, the reality is that it has happened in the 9/11 military commission. In April 2014, a defense team member was asked to feed information to the government138 and former team members have been monitored and questioned by counterintelligence agents.139 In another dramatic example, 9/11 defendant Bin al Shibh noted issues with participation in the process in court: ‘I have some problem to get the translations, complete translations [of court documents], so I have my interpreter, [name redacted]. But the problem is I cannot trust him because he was working at the black site with the CIA … .’140 Bin al Shibh displays classic symptoms of a torture victim, as discussed in the previous section, and reintroducing one of the witnesses and co-conspirators to his torture has great potential to disrupt any meaningful engagement with the trial process and also instill the idea that those responsible for his torture are always nearby. Ultimately, this episode revealed that the government had placed a former CIA black site interpreter in what is meant to be a position of confidence with the defendant. As every member of the defense team, from the analyst or translator to the paralegal or Learned Counsel, has a role to play in developing the client relationship, this type of interference is a particular affront to fair trial guarantees and clear interference with lawyer–client privilege.141 In the same session, defendant Bin’Attash also ‘relayed … that there is somebody in this courtroom who was participating in his illegal torture’.142 In both instances, this draws the defendants’ torture experiences into their ongoing trial with the potential for reliving trauma since they have had no rehabilitation in their almost two decades in US captivity. As explained in court four years later, Bin al Shibh ‘had relied upon that interpreter in translating attorney-client privileged documents’ which represents a serious ‘invasion into the [lawyer]-client privilege by a person who had formerly been employed by the CIA’.143 While these examples go against basic ethical standards it is unclear that the military commission is willing to contemplate any meaningful relief for the ‘ongoing infiltration of the defense teams’ either as individual or collective instances of breach of the lawyer–client privilege.144

D. Remedies for Breaches of Fundamental Rights

The torture of the five 9/11 case defendants is widely documented. In line with the negative obligation to not torture, there is a positive obligation incumbent on States to investigate and prosecute allegations of torture under the ICCPR and the UNCAT.145 The HRC has outlined that at a bare minimum an effective remedy demands that the State conduct a thorough, prompt and impartial investigation into allegations of torture and compensate victims of any human rights violations.146 As the CAT has explained, ‘redress should cover all the harm suffered by the victim, including restitution, compensation, rehabilitation of the victim and measures to guarantee that there is no recurrence of the violations’.147 Rehabilitation ‘should be holistic and include medical and psychological care as well as legal and social services’ and ‘include acknowledgement of the facts and acceptance of responsibility’.148 The US has failed to deliver any form of remedy, redress or rehabilitation to these men over the almost two decades that they have been in US custody. The US government has not ‘investigated’ with any intention of redress despite the copious evidence of torture and ill-treatment documented in the SSCI Report nor has it provided any form of rehabilitation save the most basic medical care. All five men are charged with capital offenses carrying the maximum penalty of death. Yet, those individuals responsible for torturing these defendants enjoy impunity and are, in some circles, hailed as heroes. As long as the issue of torture of the defendants remains unaddressed, international standards of due process, fairness and impartiality cannot be achieved.149 Regardless of the defendants’ alleged roles in the planning of September 11, the breach of the prohibition against torture and assault on that particular fundamental right cannot be undone.

This article concerns what happens after torture when the torture victims are tried in a criminal justice system that asserts adherence to the rule of law. The above discussion demonstrates that torture and blanket assertions of national security permeate many dimensions of the right to fair trial. It is, therefore, necessary to consider how these violations might be remedied. In line with the earliest articulation of the contemporary human rights system, fair trial guarantees were discussed and this unequivocally included the right to effective remedy and redress.150 Each of the individual infractions of the right to fair trial examined above typically attract some form of remedy in a national court setting.151 These remedies range from exclusion of evidence to directed jury instructions to dismissal of the case altogether.

Thus far, the remedies sought in the 9/11 case have been in response to restrictions on the defense designed to cover up evidence of the defendants’ torture or government misconduct relating to invasion the lawyer–client relationship. The remedies requested have included striking out testimony, exclusion of evidence, taking the death penalty out of the potentially available sentences and dismissal of the charges.152 In the early pre-trial hearings, the latter two options seemed extremely unlikely. However, as the hearings progress and if further revelations about potential government interference arise, it is not far-fetched to speculate that extreme remedies may be necessary to avoid the dismantling any hope of a trial that is compliant with international fair trial standards as well as US law. Military commission judgments will lack legitimacy both at home and abroad if recognisable fair trial standards are ignored.153

If repeated government infractions are confirmed, even incrementally, what would it say about the rule of law in the USA if no remedy is provided? Particularly when the basis of prosecuting the 9/11 case is for breach of the laws that underpin American democracy. Though the 9/11 defendants have the right to be presumed innocent, due to the nature of the crimes against them the world may never know the truth about their innocence or guilt. It is clear they are not the de facto perpetrators of September 11, those men went down with the planes; however, the MCA casts a wide net in order to encompass all terrorism conspirators no matter how far removed. Some of the 9/11 defendants may yet be proven to be responsible for the planning and orchestration of the September 11 attacks. However, a legitimate judicial process that delivers the right to fair trial in accordance with the rule of law is the only way that the verdict, either way, can be delivered with some measure of justice.

Rights Fair Trial Requires Vindication of the Defendants’

Following the knee-jerk executive policy responses that saw hundreds of men rounded up, renditioned, detained and tortured on black sites in pursuit of national security, both the legislative and judicial branches of the US Government struggled to rectify mistakes made early in the post-September 11 landscape. Though the US federal judiciary ultimately preserved a limited right to habeas corpus, the strength of the constitutional checks and balances between the government branches has been unable to account for the most egregious of these mistakes—the ‘original sin’—the torture of detainees, including the 9/11 defendants. In turn, their torture has had far-reaching ramifications for the conduct of the military commissions in accordance with the international rule of law. This article examined a small dimension of these ramifications as revealed through the distortion of the right to fair trial as a result of the torture of the defendants and the government’s persistence in using national security to interfere with variable elements of the right to fair trial.

Surveying consistent features of the right to fair trial in both IHL and IHRL, the article first established the basis of the variable elements of the right to fair trial that were then examined through the pre-trial litigation of the 9/11 case. Consideration of the most common connection between torture and the right to fair trial—the prohibition of the use of evidence obtained through or incident to torture—illuminated some of the unique features of the Guantánamo military commission’s laws cape. This was followed by three further issues relating to ensuring the right to fair trial, all of which are shaped directly or indirectly by the government’s persistent recourse to national security as an excuse for interfering with fair trial guarantees. The analysis explored how hindering the right to prepare an effective defense may yet be the undoing of the 9/11 military commission. Variable interferences with the ability of the defense to gather and challenge evidence as part of the right to equality of arms, obstacles to the ability of the defendants to participate in their own defense and the repeated intrusion into the lawyer–client relationship are steadily combining to distort any semblance of a fair trial. Coupling these repeated infractions with the lack of meaningful redress for the torture experienced by the 9/11 case defendants reinforces the constant paradox of the 9/11 case. This paradox sees both the prosecution and the defense lawyers defending alleged criminals. The key difference is that the widely available, anonymised evidence of wrongdoing by the prosecution’s client, set out in the SSCI Report and witness testimony, is consistently ignored by the military commission under the guise of national security. At the same time, the alleged evidence of the defendants’ wrongdoing is also shrouded by national security protections to the extent that government agents, both known and unknown, increasingly are chipping away at the fundamental right to fair trial and the ability of the 9/11 lawyers to raise an effective defense—once a cornerstone of the rule of law in American democracy.

In examining different aspects of interference with the right to fair trial arising across the years of pre-trial proceedings, this article reveals that while the Guantánamo military commissions may be unique, the litigation reinforces that the relationship between torture and fair trial goes beyond the admissibility of evidence obtained through, or incident to, prohibited treatment. It has demonstrated that torture, left unaddressed and continually shrouded in the cloak of national security, can undermine many aspects of the right to fair trial as it is understood in the traditional pursuit of justice according to IHRL. Continued monitoring of the pettifoggery going on in the Guantánamo military commissions is necessary if the negative impacts on the substantive law of the USA and the reverberations in the international rule of law are to be pre-empted. Much like the torture of the detainees by US operatives, analysis of the diminution of the right to a fair trial is ‘but the beginning of the debate which must ultimately call into question not the Bush Administration [or subsequent US administrations] but the American people’.154 At what point will the USA account for its failure to maintain allegiance to fundamental human rights protections? As the pre-trial phase of the 9/11 military commission moves through its tenth year, this article highlights examples of how torture and national security have corrupted different aspects of the right to fair trial and demonstrates the cascading effect that comes with violating the fundamental prohibition against torture.

Research for this article was conducted in 2016–20 over 10 trips by the author to observe the 9/11 military commission proceedings in ‘Camp Justice’ on US Naval Station Guantánamo Bay. The underpinning project ‘Torture on Trial’ was generously supported by a Royal Society of Edinburgh Small Grants award during 2018 (Grant No. 58692) and the University of Edinburgh Law School Research Support Fund in 2019. My deep appreciation goes to Andrea Birdsall, Dru Brenner-Beck, Michelle Burgis-Kasthala, Katharine Fortin, Elena Katselli, Andrew Lang, Manfred Nowak, Elizabeth Salmon, Philippa Webb and the anonymous reviewers for their thoughtful comments on previous drafts. This version also benefitted from works in progress sessions with the Northern UK Human Rights Network and within Edinburgh Law School. Many debts of gratitude are also due to Carol Rosenberg and John Ryan for their commitment to the highest standards of journalism and willingness to spend many late nights deconstructing different trial points and to Ron Flesvig (Office of Military Commissions) for his logistical support and general good humour in arranging the OMC logistics for most of my trips to Guantánamo. While the research underpinning this article benefitted from discussions with a number of military commission lawyers, I confirm that I have no conflict of interest. All errors remain my own.

Footnotes

1. See Sworn Charges against Khalid Sheikh Mohammed (10024), Walid (Khallad) Muhammad Salih Mubarek bin‘Attash (10014), Ramzi Bin al Shibh (10013), Ali Abdu Aziz Ali (al Baluchi) (10018), Mustafa Ahmed Adam al Hawsawi (10011), 31 May 2011, at <www.therenditionproject.org.uk/pdf/PDF%20449%20[US%20v%20Khaled%20Sheikh%20Mohammad%20et%20al,%20Charge%20Sheet%20(15%20April%202008)].pdf>

 accessed 1 November 2021.

2. Military Commission Act 2009, Public Law No 111-84 s 1801-07, 10 USC s 948-50 (MCA). Notably, this law is a revised version of the Military Commissions Act 2006, which was repeatedly found to breach the US Constitution.

3. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (collectively ‘Geneva Conventions’).

4. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

5. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (UNCAT).

6. Throughout the article the US spelling of ‘defense’ will be utilised to align with the military commission documents unless a direct quote.

7. See discussion by M Nowak, ‘What Practices Constitute Torture: US and UN Standards’ (2006) 28 Human Rights Quarterly 809.

8. A number of studies have examined this immediate post-September 11 discourse, see, eg L Hajjar, ‘The Counterterrorism War Paradigm versus International Humanitarian Law: The Legal Contradictions and Global Consequences of the US “War on Terror”’ (2019) 44 Law & Social Inquiry 922; M Duffy, The Detention of Terrorism Suspects (Hart Publishing 2018); F Johns, Non-Legality in International Law (CUP 2013) ch 2; D Luban, Legal Ethics and Human Dignity (CUP 2007) 174ff.

9. S Cohen, ‘Government Responses to Human Rights Reports: Claims, Denials, and Counterclaims’ (1996) 18 Human Rights Quarterly 517, 522; see Luban (n 8) 172 ff.

10. See Bush, Military Order of November 13, 2001—Detention, Treatment, and Trial of Certain Non-Citizens in the War on Terrorism, Federal Register 66:222, 57833, 16 November 2001 (November 2001 Military Order).

11. Notably, normal naval station operations are entirely separate from the detention operations, which operate under the auspices of Joint Task Force GTMO (JTF–GTMO).

12. It has been acknowledged that the CIA operated a black site in Guantánamo in addition to the Department of Defense detention facility. See Inter-American Commission on Human Rights, ‘Towards the Closure of Guantanamo’ (3 June 2015) OAS/Ser.L/V/II, Doc 20/15, paras 101–19.

13. Rasul v Bush (2004) 542 US 466; Hamdan v Rumsfeld (2006) 548 US 557; Boumediene v Bush (2008) 553 US 723.

14. US Constitution, art I s 9: ‘The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.’

15. Suleiman Abdullah Salim, et al., v James E Mitchell and John Jessen, No CV-15-0286-JLQ, US District Court, Eastern District of Washington, based on the Alien Tort Statute, 28 USC section 1350. The case was eventually settled out of court.

16. eg Husayn (Abu Zabaydah) v Poland, App no 7511/13, Merits, (ECtHR, 24 July 2014); Al Nashiri v Poland, App no 28761/11, Merits, (ECtHR 16 February 2015); Nasr and Ghali v Italy, App no 44883/09, Merits, (ECtHR 23 February 2016); Husayn (Abu Zabaydah) v Lithuania, App no 46454/11, Merits, (ECtHR 8 December 2018).

17. eg Allegations concerning the situation of Mr Ammar al Baluchi, also known as Ali Abdul Aziz Ali, a detainee held in the custody of the Department of Defense on the US naval station at Guantánamo Bay, Cuba since September 2006, Case No USA 22/2017, 4 October 2017; Allegations concerning the failure to provide adequate medical care to Mr Mustafa al-Hawsawi, detainee at Guantánamo Bay, Case No USA/5/2016, 6 May 2016, all available on the Communications page of the Special Rapporteur on Torture, <https://spcommreports.ohchr.org/TmSearch/Results>.

18. US Senate Intelligence Committee Study on CIA Detention and Interrogation Program, Executive Summary (SSCI Report), (3 December 2014), at <www.feinstein.senate.gov/public/_cache/files/7/c/7c85429a-ec38-4bb5-968f-289799bf6d0e/D87288C34A6D9FF736F9459ABCF83210.sscistudy1.pdf> accessed 1 November 2021. The publicly available version is 566 pages, a small part of the 6700 page complete Study which distilled over 6 million pages of CIA documents that were determined classified by previous US administrations.

19. Ali Soufan, a former FBI agent, has described what happened to the first man tortured under the enhanced interrogation programme, Abu Zabaydah, as the ‘original sin’. See C Rosenberg, ‘Agent who interrogated Abu Zabaydah: “Where we went wrong as a nation”’ (The Miami Herald, 1 June 2016) at <www.miamiherald.com/news/nation-world/world/americas/guantanamo/article81232607.html> accessed 1 November 2021.

20. CIA Office of General Counsel, Hostile Interrogations: Legal Considerations for CIA Officers, (26 November 2001), 6, at <https://s3.documentcloud.org/documents/21061065/leopold-cia-post-911-torture.pdf> accessed 1 November 2021. The redacted version of the memorandum was approved for release on 3 May 2018 and obtained through a FOI request by journalist Jason Leopold.

21. Eg see discussion of CIA’s Office of General Counsel of 26 November 2001 regarding possible necessity defences to the use of torture ‘when it resulted in saving thousands of lives.’ SSCI Report (n 18) 19–22.

22. US v Khalid Sheikh Mohammed, Walid bin ‘Attash, Ramzi bin al Shibh, Ammar al Baluchi, and Mustafa Ahmad al Hawsawi (US Office of Military Commissions) (9/11 case). <www.mc.mil/CASES.aspx> accessed 1 November 2021, see (n 52) below.

23. MCA s 948b (a).

24. Eg D Rumsfeld, US Department of Defense News Briefing, 8 February 2002, summary available at <https://2001-2009.state.gov/r/pa/ho/pubs/fs/33354.htm> but not the complete document. The US archive link is no longer active but a copy of the statement is on file with the author and can be found here <https://casebook.icrc.org/case-study/united-states-status-and-treatment-detainees-held-guantanamo-naval-base> accessed 1 November 2021. For an authoritative discussion of what amounts to torture and other prohibited ill-treatment see M Nowak, ‘Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment’ in A Clapham and P Gaeta (eds), The Oxford Handbook of International law in Armed Conflict (OUP 2014) 387ff.

25. Rumsfeld, ibid.

26. For an examination of the legal argumentation that contributed to redefining certain activities as non-torture for the purposes of justification, see J Dratel, ‘The Legal Narrative’ in K Greenberg and J Dratel (Eds), The Torture Papers: the Road to Abu Ghraib (CUP 2005); Nowak (n 7); Luban (n 8) ch 5.

27. See US reservations to the UNCAT, 1(a) (emphasis added).

28. SSCI Report (n 18) 81–82; R Blakeley and S Raphael, ‘Human Rights Fact-Finding and the CIA’s Rendition, Detention and Interrogation Programme: A Response to Cordell’ (2018) 21 International Area Studies Review 169, 175.

29. Water dousing was characterised as distinct from waterboarding by the CIA but the application of the technique can approximate waterboarding. See SSCI Report (n 18) 105–06 for a discussion and the description relating to Mustafa al-Hawsawi as outlined by one of his interrogators.

30. SSCI Report (n 18) 82, 83 and 100, fns 584, 680. Barnes has examined the fine line between force-feeding for health and force-feeding as torture, see J Barnes, ‘Force-feeding and the Legacy of Torture in the “War on Terror”’ (2019) 23 The International Journal of Human Rights 1074.

31. 9/11 case (n 22), Transcript, 27 January 2020 (merged) Part IV at 31362-4, testimony of James Mitchell indicating he ‘conditionally’ threatened to cut Mohammed’s sons’ throats.

32. Geneva Convention III art 17; US Torture Statute 18 USC s 2340(2) (d).

33. US reservations to the UNCAT, 1(a) (4).

34. SSCI Report (n 18) 81–83. See Luban (n 8) 181.

35 .S Raphael and others, ‘Tracking Rendition Aircraft as a Way to Understand CIA Secret Detention and Torture in Europe’ (2015) 20 The International Journal of Human Rights 78, 91.

36. SSCI Report (n 18) 86, 90.

37. Waterboarding took place from 10-24 March 2003, SSCI Report (n 18) 85–93.

38. This observation was made on 14 March 2003, though EITs were applied for a further 10 days, see SSCI Report (n 18) 88.

39.JTF–GTMO–CDR, Combatant Status Review Tribunal Input and Recommendation for Continued Detention under DoD Control (CD) For Guantánamo Detainee, ISN: US9KU-010024DP(S), 8 December 2006, 5 <www.therenditionproject.org.uk/documents/RDI/061208-DoD-JTF-Detainee-Assessment-Hawsawi.pdf> accessed 1 November 2021.

40. For an analysis of what amounts to ‘severe’ pain, see Nowak (n 7) 811 ff.

41. SSCI Report (n 18) 75, 80. For a timeline of detention and transfer see JTF-GTMO-CDR, Combatant Status Review Tribunal Input and Recommendation for Continued Detention under DOD Control (CD) For Guantánamo Detainee, ISN: US9YM-010013DP(S), 8 December 2006.

42. SSCI Report (n 18) 97, fn 557; 100, fn 584; 356–57; 387–88, fn 2190.

43. JTF–GTMO–CDR, Combatant Status Review Tribunal Input and Recommendation for Continued Detention under DOD Control (CD) For Guantánamo Detainee, ISN: US9YM-010011DP(S), 8 December 2006, p 3; JTF–GTMO–CDR, Combatant Status Review Tribunal Input and Recommendation for Continued Detention Under DoD Control (CD) For Guantánamo Detainee Ammar al Baluchi, ISN: US9PK-010018DP(S), 8 December 2006, 4.

44. SSCI Report (n 18) 100, fn 584.

45. eg UN Human Rights Committee (HRC), Nyaya v Nepal, Communication No 2556/2015, UN Doc CCPR/C/125/D/2556/2015 (11 June 2019) para 7.2; UN Committee Against Torture (CAT), A v Bosnia and Herzegovina, Communication No 854/2017, UN Doc CAT/C/67/D/854/2017 (11 September 2019) para 7.4. See also, Nigel Rodley and Matt Pollard, ‘What Constitutes Torture and Other Ill-treatment?’ in Nigel Rodley and Matt Pollard (eds), The Treatment of Prisoners under International Law (3rd edn, OUP 2015) 96–97.

46. The 2012 update to the US definition of rape expanded to include both male and female and to recognise sexual assaults with object, thus absorbing the previous distinct crime of sexual assault with an object. FBI, Uniform Crime Reporting, Rape Addendum, <https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/resource-pages/rape_addendum-2015-_final> accessed 1 November 2021.

47. JTF–GTMO–CDR, Combatant Status Review Tribunal Input and Recommendation for Continued Detention under DoD Control (CD) For Guantánamo Detainee, ISN: US9SA-010018DP(S), 8 December 2006, 1, 4.

48. SSCI Report (n 18) 444, 451, 452, 455–56.

49. See, for example, 9/11 case (n 22) Transcript, 21-31 January 2020, testimony of James Mitchell.

50 .See USA report to the CAT, ‘Third to fifth periodic reports of States parties due in 2011, United States of America’ (4 December 2013) UN Doc CAT/C/USA/3-5, para 13.

51. For example, B Emmerson, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. Note by the Secretariat’ (21 February 2017) UN Doc A/HRC/34/61, para 22.

52. Throughout the remainder of this article the military commission court filings are referenced. In commission parlance, all filings are referred to as Appellate Exhibits and carry an ‘AE’ precursor followed by the numeric motion series identifier. Where the filing is made by defense, the specific defendant is noted in parentheses, thus any of the following will be present in relation to the specific defendant: Mohammad (KSM), al Hawsawi (MAH), Bin al Shibh (RBS), bin‘Attash (WAH), al Baluchi (AAA). Where relevant, the full title of the document is provided along with date filed, otherwise, the document identifier only is provided. All documents can be found on the military commissions website at <www.mc.mil/CASES.aspx> accessed 1 November 2021. Notably, the link is not always accessible outside the USA due to US Department of Defense firewalls.

53. For a discussion about the use of military courts to try civilians or any individual outside of war time, see F Ni Aoláin and O Gross (eds), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (CUP 2013) part I; E Schmid, ‘A Few Comments on a Comment: the UN Human Rights Committee’s General Comment No. 32 on Article 14 of the ICCPR and the Question of Civilians Tried by Military Courts’ (2010) 14 International Journal of Human Rights 1058, 1061 ff. For analysis of the early, ultimately dismantled US military commissions, see: B Ackerman, ‘The Emergency Constitution’ (2004) 113 Yale Law Journal 1029; HH Koh, ‘The Case Against Military Commissions’ (2002) 96 American Journal of International Law 337; LA Dickinson, ‘Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals and the Rule of Law’ (2002) 75 Southern California Law Review 1407, 1415–21.

54. UN Commission on Human Rights, ‘Situation of detainees at Guantánamo Bay. Joint Report by five holders of mandates of special procedures of the Commission on Human Rights’ (27 February 2006) UN Doc E/CN.4/2006/120, paras 9, 30–40 (Joint Report on Situation of Detainees); Martin Scheinen, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ (6 August 2008) UN Doc A/63/223, paras 7, 9.

55. See Greenberg and Dratel (n 26) ch 5.

56. Rome Statute of the International Criminal Court (17 July 1998) 2187 UNTS 90.

57. See, eg D Weissbrodt and J Hansen, ‘The Right to a Fair Trial in an Extraordinary Court’ in Ni Aoláin and Gross (n 53); E Decaux, ‘Report of the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, Issue of the Administration of Justice through Military Tribunals’ (13 January 2006) UN Doc E/CN.4/2006/58, para 15; J E Méndez, ‘Report of the Special Rapporte0ur on torture and other cruel, inhuman or degrading treatment or punis0hment’ (10 April 2014) UN Doc A/HRC/25/60, para 30.

58. At the time of writing, no cases have been fully concluded (sentence determined) under this version of the MCA.

59. 9/11 case (n 22) Transcript, 19 June 2019, 23319.

60. At the time of submission, November 2021, the 42nd round of hearings has concluded and there are approximately 10 069 filings in the case, representing substantive pleadings, procedural notifications, corrections to pleadings and other exhibits, such as power point files. Hearings were repeatedly cancelled due to the Covid-19 pandemic and the first round of hearings post-pandemic outbreak took place in September 2021.

61. A Clooney and P Webb, The Right to Fair a Trial in International Law (OUP 2021) offers the freshest examination of the subject. See also, D Weissbrodt, The Right to a Fair Trial under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights: Articles 8, 10 and 11 of the Universal Declaration of Human Rights (Brill 2001). Other relevant literature on international fair trial standards include: P Chenivesse and CJ Piranio, ‘What Price Justice? On the Evolving Notion of “Right to Fair Trial”’ from Nuremberg to The Hague’ (2011) 24 Cambridge Review of International Affairs 403; Schmid (n 53). Notably these articles do not address the specific content of the right, but are more generally about its existence, its relationship to other norms and how to approach analysis of its components.

62. eg JA Geltzer, ‘Of Suspension, Due Process, and Guantanamo: The Reach of the Fifth Amendment after Boumediene and the Relationship Between Habeas Corpus and Due Process’ (2012) 14 Journal of Constitutional Law 719; F de Londras, ‘Guantánamo Bay: Towards Legality?’ (2008) 71 Modern Law Review 36; F Johns, ‘Guantánamo Bay and the Annihilation of the Exception’ (2005) 16 European Journal of International Law 613; E Metcalfe, ‘Inequality of Arms: The Right to a Fair Trial in Guantánamo Bay’ (2003) 6 European Human Rights Law Review 573.

63. eg E Schmid, ‘The Right to a Fair Trial in Times of Terrorism: A Method to Identify the Non-Derogable Aspects of Article 14 of the International Covenant on Civil and Political Rights’ (2009) 1 Göttingen Journal of International Law 29; J Davis, ‘Uncloaking Secrecy: International Human Rights Law in Terrorism Cases’ (2016) 38 Human Rights Quarterly 58; J Davis, ‘Equality of Arms: Complying with International Human Rights Law in Cases against Alleged Terrorists’ (2016) 21 Journal of Conflict & Security Law 69.

64. Schmid, ibid 35 ff.

65. S Trechsel, ‘Why Must Trials Be Fair?’ (1997) 31 Israel Law Review 94, 95; Nowak (n 24).

66. eg 9/11 case (n 22), AE693A(GOV), Government Response to Mr Ali’s motion to Establish Protections against Pretrial Punishment, 10 January 2020, 1, 3ff. See Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International and Non-international Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (Protocol I).

67. See discussion in International Committee of the Red Cross, Customary IHL Database, Rule 100. Fair Trial Guarantees at <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule100#refFn_3467CD3B_00053> accessed 1 November 2021.

68. ibid.

69. The White House, Press Release, ‘Fact Sheet: New Actions on Guantánamo and Detainee Policy’ (7 March 2011) at <https://obamawhitehouse.archives.gov/the-press-office/2011/03/07/fact-sheet-new-actions-guant-namo-and-detainee-policy> accessed 1 November 2021. See also, Hamdan v Rumsfeld (2006) 548 US 557, 633.

70. Joint Report on Situation of Detainees (n 54) para 9; ICRC (n 67).

71. Joint Report on Situation of Detainees (n 54) 34–35.

72. UNGA, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ (6 August 2008) UN Doc A/63/223, summary and para 12.

73. HRC, ‘General Comment No 29. Article 4: Derogations during a State of Emergency’ (31 August 2001) UN Doc CCPR/C/21/Rev.1/Add.11, para 15.

74. ibid, para 11; UN Human Rights Council, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism on the human rights challenge of states of emergency in the context of countering terrorism’ (1 March 2018) UN Doc A/HRC/37/52, para 42.

75. On the complementary applicability of IHL and IHRL, see: Schmid (n 63) 35 ff; E Salmon, ‘Institutional Approach between IHL and IHRL: Current Trends in the Jurisprudence of the Inter-American Court of Human Rights’ (2014) 5 Journal of International Humanitarian Legal Studies 152.

76. Both the start and cessation of the conflict with al Qaeda are issues being litigated in the 9/11 case (n 22), see, eg AE617D/AE620C, Order, 4 April 2019; AE617H/AE620G (RBS), Response on Issues of Law Regarding Proof of Hostilities between the USA and al Qaeda, the Existence and Duration of Hostilities as an Instructional Matter, the Existence of a Non-Justiciable Political Question, and Judicial Notice as a Matter of Legislative Fact (19 April 2019).

77. F de Londras, Detention in the ‘War on Terror’ (CUP 2011), ch 5.

78. UN Human Rights Council, ‘Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism’ (2 June 2008) UN Doc A/HRC/8/13, paras 40, 42–43.

79. See, eg HRC, ‘General Comment No 20. Article 7: Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment’ (10 March 1992) UN Doc HRI/GEN/1/Rev.7, para 12; HRC, ‘General Comment No 32’ (n 53) para 33; Juan E Méndez, ‘Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’ (10 April 2014) UN Doc A/HRC/25/60 (focuses exclusively on the exclusion of evidence obtained through torture). For a comprehensive examination of the multiple confirmations of the exclusionary rule in relation to evidence obtained through torture, see Clooney and Webb (n 61) eg 619–23, 650–52 (also addressed at other points); N Rodley and M Pollard, The Treatment of Prisoners under International Law (OUP 2011) 162–66; Nowak (n 24) 391.

80. At the time of submission, the 9/11 case has completed its 42nd pre-trial session.

81. Rochin v California (1952) 342 US 165, para 173. See, also, Mapp v Ohio (1961) 367 US 643, 657.

82. MCA s 948r(c)(1), emphasis added.

83. HRC, ‘General Comment No 32’ (n 53) para 6; see also HRC, ‘List of issues prior to submission of the fifth periodic report of the United States of America’ (18 April 2019) UN Doc CCPR/C/USA/QPR/5, para 16.

84. US v Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri (Military Commission) AE549, Defense Motion to Dismiss with prejudice Due to Outrageous Government Misconduct, 28 October 2021; In re Abd al-Rahim Hussein Al-Nahiri, Petition for a Writ of Mandamus & Prohibition in relation to Ruling AE353AA of 18 May 2021 (3 June 2021), at <https://int.nyt.com/data/documenttools/petition-for-a-writ-of-mandamus-and-prohibition/c4364a7fa545671f/full.pdf> accessed 1 November 2021.

85. SSCI Report (n 18) 2, 4.

86. ibid, Findings and Conclusions, 2.

87. eg 9/11 case (n 22) AE630Y (GOV) Government Response To Motion to Compel Witnesses Supporting Mr. Mohammad's Motion to Suppress Letterhead Memorandum Statements Because the Government Cannot Demonstrate by a Preponderance of the Evidence that They Were Voluntarily Given, 27 January 2020, 10.

88. The third judge decided to use the term ‘Letterhead Memorandum Statements’ so as to avoid preconceived determinations of admissibility.

89. There are multiple AE series dedicated to the increasing restrictions imposed pursuant to the current four protective orders, eg AE524. Many filings have also focused on the CIA-FBI relationship, eg 9/11 case (n 22) AE780 (AAA) Mr al Baluchi’s Motion to Compel Documentation of CIA–FBI Coordination to Obtain Statements from Defendants, 12 March 2020; AE630 (KSM) Mr Mohammad’s Motion to Suppress Letterhead Memorandum Statements Because the Government Cannot Demonstrate by a Preponderance of the Evidence that They Were Voluntarily Given, 27 January 2020.

90. AE524LL, Ruling, 17 August 2018 at 36: ‘The FBI Clean Team Statements of the Accused are suppressed and the Government will not introduce the statements for any purpose.’

91. ibid.

92. Rule for Military Commissions 905(f) permits reconsider of rulings, including those of judges that have retired from the bench, such as the first judge, Col James Pohl, who retired in 2018 after over five years on the case.

93. 9/11 case (n 22), AE524LLL, Ruling on Government Motion to Reconsider and Clarify AE 524LL, Ruling, 3 April 2019 at 9.

94. eg 9/11 case (n 22), Transcript, 7 December 2017, 17930-31; Transcript, 23 July 2018, 19966-75; Transcript, 28 January 2020, 31413-14; Transcript, 19 February 2020, 32854.

95. See Amicus Curiae Submissions on Behalf of the Bar Human Rights Committee of England and Wales, AE524VV (AMI), 12 October 2018.

96. Witnesses are still scheduled to testify on the FBI-CIA relationship as as proceedings move into 2022.

97. 9/11 case (n 22) Transcript, 7 November 2019, 29764 ff.

98

US Constitution, 5th and 6th Amendments. See also, Hamdan v Rumsfeld (2006) 548 US 557, 633ff.

99. Geneva Convention III, art 3(1)(d) provides: ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.’

100. HRC, ‘General Comment No 32’(n 53) paras 8, 32, 34; HRC, Viktor Taran v Ukraine, Communication No 2368/2014, UN Doc CCPR/C/128/D/2368/2014 (12 March 2020) para 7.7.

101. See Geneva Conventions (n 2) Common art 3; Weissbrodt and Hansen (n 57); Schmid (n 63).

102. HRC, ‘General Comment No 32’ (n 53) para 8; See Rule of Military Commission 701(j): ‘Each party shall have adequate opportunity to prepare its case and no party may unreasonably impeded the access of another party to a witness or evidence.’ at <www.mc.mil/LEGALRESOURCES/MilitaryCommissionsDocuments.aspx> accessed 1 November 2021. See discussion in S Trechsel, Human Rights in Criminal Proceedings (OUP 2006) 94 ff.

103. HRC, ‘General Comment No 32’ (n 53) para 13.

104. See MCA s 949(c)(3)(d) and relevant filings below, eg nn 108, 109.

105. Trechsel (n 65) 86.

106. MCA s 949(j).

107. Clooney and Webb (n 61) 753.

108. 9/11 case (n 22) AE013O, Ruling, Government Motion to Protect Against Disclosure of National Security Information, (6 December 2012) and AE013P, Protective Order #1, To Protect Against Disclosure of National Security Information, (6 December 2012). See also AE118M.

109. ibid, AE013AA, Amended Protective Order #1, To Protect Against Disclosure of National Security Information, 9 February 2013; AE013AA, Second Amended Protective Order#1, To Protect Against Disclosure of National Security Information, 16 December 2013; AE013AAAA, Third Amended Protective Order #1, To Protect Against Disclosure of National Security Information, 6 July 2015; AE524G (AAA) at 17.

110. ibid, AE200G (KSM, AAA), 4 October 2013; AE524GGG (AAA), 12 February 2019.

111. ibid, AE200M (KSM), 18 October 2013.

112. ibid, AE367 (MAH), Motion to Dismiss Because National Security Considerations Make a Fair Trial Impossible, 22 July 2015.

113. ICCPR art 14(3)(b); The 6th Amendment to the US Constitution provides that ‘the accused shall … have the Assistance of Counsel for his defence’ without specifying that counsel should be of their own choosing, as detailed in the ICCPR.

114. See, eg H McColl and others, ‘Rehabilitation of Torture Survivors in Five Countries: Common Themes and Challenges’ (2010) 4 International Journal of Mental Health Systems 1; D Forrest, ‘Examination for the Late Physical after Effects of Torture’ (1999) 6 Journal of Clinical Forensic Medicine 4.

115. 9/11 case (n 22) AE152 (RBS), Emergency Defense Motion to Order the Cessation of External Use of Sounds and Vibrations to Interfere with Mr Bin al Shibh’s Confinement and with the Attorney–Client Relationship and to Allow Expert Inspections of his Cell, Substructure/Foundation, Surrounding Areas of the Cell, and the Cell Control Room, 3 April 2013, paras 5(b)–(c); see similar allegations by Bin al Shibh, AE108B (RBS), 18 January 2013.

116. ibid, AE152 (RBS) at paras 2 and 6; US Department of Defense, ‘New Details about Torture of Guantanamo Bay Detainee’, Press Release Issued by Defense Counsel for Mr. Ramzi bin al Shibh, (23 September 2019) (on file with author).

117. Detainee Treatment Act, 42 USC s 2000dd(a); US Constitution, 8th Amendment. Sleep deprivation was determined prohibited treatment in Vance v Rumsfeld, 701 F.3d 193 (7th Cir. 2012). In international law, the prohibition forms a component element of ICCPR art 7, UNCAT art 16 and Common art 3 of the Geneva Conventions.

118. 9/11 case (n 22), Transcript, (16 September 2019), 25339; Transcript, (17 June 2019), 23181.

119. SSCI Report (n 18), Findings and Conclusions, 4, see also Executive Summary, 109, 110, 132, 137, 139, 412, 416, 419, 422, 429, 495.

120. 9/11 case (n 22), AE152 (RBS) para 4.

121. ibid, AE152 (RBS) para 4.

122. ibid, Transcript, 20 December 2017, 18287-9.

123. ibid, Transcript, 5 December 2015, 14044-45.

124. HRC, ‘General Comment No 32’ (n 53) para 34. The more common European term 'lawyer' is used throughout instead of the American 'attorney'-client relationship but for the purposes of analysis refer to the same concept.

125. In response to Covid-19, some accommodation has been made but it has been far from perfect or a readily available option for all defense teams.

126. This assertion is based on both the author’s multiple trips to the naval outpost as well as statements made by those directly involved with the military commissions. Notes on file with the author.

127. see, eg 9/11 case (n 22), AE133 (WBA Sup), MEMORANDUM, Order Governing Logistics of Defense Counsel Access to Detainees Involved in Military Commissions, 27 December 2011.

128. HRC, ‘General Comment 32’ (n 53) para 34.

129. Lawyer (Attorney)–client privilege features in the American Bar Association, Model Rules of Professional Conduct (ABA Model Rules), Rule 1.1, <www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/> accessed 1 November 2021.

130. Correspondence with family through the ICRC is litigated regularly in the military commissions due to the irregular or ineffective fulfilment of this Geneva Convention obligation. See UNGA, ‘Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment, Addendum: Study on the phenomena of torture, cruel, inhuman or degrading treatment or punishment in the world, including an assessment of conditions of detention’ (5 February 2010) UN Doc A/HRC/13/39/Add.5, paras 102–06, discussing how the right to counsel is compromised for those in detention and how this results in inequality of arms between the defense and prosecution (para 105).

131. eg see discussion in: 9/11 case (n 22), AE152 (RBS), para 5(h); AE133D, 5 February 2013.

132. ibid, Transcript, 16 June 2014, 7878.

133. See ibid, AE350 series; AE292W (MAH); Transcript, 16 June 2014, 7879-88.

134. ibid, AE008, Defense Supplemental Statement of Facts on Behalf of Mr Bin al Shibh in Support of Motion to Dismiss for Defective Referral, 20 April 2012, 5 ff.

135. ibid, AE133QQ, Ruling, 30 November 2016, 2. See original underlying motion, AE133 (KSM, MAH, RBS, WBA, AAA) Placeholder notice of Filing of Classified Motion: Emergency Defense Motion to remove sustained barrier to attorney-client communication and prohibit any electronic monitoring and recording of attorney-client communications in any location, including commission proceedings, holding cells, and meeting facilities and to abate proceedings, 31 January 2013. The event on which the motion was based can be found at Transcript, 28 January 2013, 1445-47.

136. ibid, AE133CCC (KSM et al), 3. See also, Transcript, 14 April 2014, 7759-60.

137. ibid, AE133 (WBA sup), 6 February 2013, para 5(g).

138. ibid, Transcript, 14 April 2014, 7757.

139. ibid, Transcript, 28 January 2019, 22106-10; Transcript, 14 April 2014, 7757-8.

140. ibid, Transcript, 9 February 2015, 8248.

141. See ABA Model Rules, (n 129) Rule 1.6 (a) and (c).

142 .9/11 case (n 22), Transcript, 9 February 2015, 8250.

143. ibid, Transcript, 22 July 2019, 23901. See also from the same transcript comments by Bin al Shibh’s counsel: ‘this is part of a larger picture of intrusions into the defense team, intrusions involving the fake smoke detectors, spies being put on the defense teams, the red light in the courtroom, the microphones’, among other things, including the disappearance of 7 gigabytes of data stored on Department of Defense servers.

144. ibid, Transcript, 9 February 2015, 8260.

145. ICCPR, art 2(3)(a), Right to an effective remedy; HRC, ‘General Comment No 20’ (n 79) para 14; HRC, ‘General Comment No. 31: The Nature of the General Legal Obligation Imposed on State Parties to the Covenant’ (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add.13, para 18; HRC, Viktor Taran v Ukraine (n 100) para 7.3.

146. ICCPR Art 2(3); see eg HRC, Viktor Taran v Ukraine (n 100) para 9; HRC, ‘Concluding Observations on the Fourth Periodic Report of the United States of America’ (23 April 2014) UN Doc CCPR/C/USA/CO/4, para 5.

147. CAT, Aarrass v Morocco, Communication No 817/2017, UN Doc CAT/C/68/D/817/2017 (2 January 2020), para 8.6; CAT, Saadia Ali v Tunisia, Communication No 291/2006, UN Doc CAT/C/41/D/291/2006 (26 November 2008) para 15.8; CAT, A v Bosnia and Herzegovina (n 45) para 3.2–3.3; HRC, Sendic v Uruguay, Communication No R.14/63, UN Doc CCPR/C/14/D/63/1979 (28 October 1981) para 21.

148. CAT, A v Bosnia and Herzegovina (n 45) para 3.3.

149. ibid.

150.  ICCPR art 2(3)(a), Right to effective remedy; D Weissbrodt and M Hallendorff, ‘Fair Trial Provisions of the UDHR’ (1999) 21 Human Rights Quarterly 1061, 1090–96.

151. See, eg on remedies for breach of the right to fair trial (specifically on the to be tried without undue delay), M Kuijer, ‘The Right to a Fair Trial and the Council of Europe’s Efforts to Ensure Effective Remedies on a Domestic Level for Excessively Lengthy Proceedings’ (2013) 13 Human Rights Law Review 777.

152

eg 9/11 case (n 22), AE579 (KSM) Motion to Dismiss All Charges for Unlawful Influence by Director of CIA.

153. Weissbrodt and Hansen (n 57) 313–16.

154. K Greenberg, ‘From Fear to Torture’ in Greenberg and Dratel (n 26) xviii.

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