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Story Publication logo November 19, 2020

Military Judge in U.S. Held Court by Video Link to Guantánamo Bay

The entrance to Camp 1 in Guantanamo Bay's Camp Delta. The base's detention camps are numbered based on the order in which they were built, not their order of precedence or level of security. Photo by Kathleen T. Rhem. Cuba, 2018. Source: Wikimedia Commons.

Carol Rosenberg tells both big-sweep and incremental stories about the court and captives at...

Media file: mills1.jpg
Image by Doug Mills/The New York Times. Cuba, undated.

Amid the pandemic, it has become commonplace in the civilian courts: holding proceedings by video.

But when it comes to the military war crimes cases normally held at the naval base in Guantánamo Bay, Cuba, adapting to the realities of the coronavirus era has proved more difficult. And it was only this week that the military commissions system pulled it off for the first time.

For more than three hours Tuesday afternoon, a Marine judge presided at a classified hearing in an Iraqi prisoner's war crimes case by video feed from a secret site in the Washington area that linked up with lawyers at the national security courtroom at Guantánamo Bay.

Defense lawyers were seeking government intelligence about Qaeda and Taliban leadership structure circa 2002. So the judge, Lt. Col. Michael D. Zimmerman, declared the hearing classified and excluded both the public and the prisoner, Abd al Hadi al Iraqi, even before it started.

There were plenty of complications. The judge, who was assigned to the case during the pandemic, has never set foot in the actual courtroom at Camp Justice, or held an open session or seen Mr. Hadi to advise him of his rights at the start of a hearing.

Defense lawyers on one side of the 1,300-mile divide between Washington and the naval base could not consult during the hearing with those on the other. The same was true for prosecutors. The lawyers at Guantánamo had to first undergo a 14-day, military-monitored and enforced quarantine inside individual trailers at the base.

But the fact of the hearing on Tuesday marked a watershed.

No judge in the slow-moving, troubled military commissions cases had ever presided remotely from a satellite location in the United States.

It was also the first hearing of the pandemic after months of cancellations by military judges. All of the lawyers in the U.S. courtroom — whose location was secret — spoke through masks, according to participants. At Guantánamo, a prosecutor and defense lawyer took theirs off when each spoke from the lectern opposite the judge's empty chair.

"Zoom Court," as some call it, and other accommodations to the pandemic have been accepted as necessary for many proceedings in the civilian courts. Some civilian courts in the United States have held arraignments and heard legal arguments and guilty pleas by teleconference with the consent of the prisoners and their lawyers. The Supreme Court has been hearing cases by phone.

But the complexities are magnified when it comes to Guantánamo, which in normal times is essentially a commuter court that opens with the arrival of the judge, lawyers, stenographers, translators and other staff aboard a charter plane from Joint Base Andrews outside Washington.

In Guantánamo's best-known case — the long-delayed trial of the defendants in the Sept. 11, 2001, plot — the government has chosen to prosecute five men simultaneously on charges that they conspired in the attacks that killed nearly 3,000 people. Hearings typically require more than 100 people at the base, including experienced death-penalty lawyers, some in their 70s, who live outside the Washington area and are now considered at particular risk if they travel in the pandemic.

Over the weekend, the chief war court judge, Col. Douglas K. Watkins of the Army, canceled plans to hold a pretrial hearing this week in the case of a confessed Qaeda courier, Majid Khan, at a makeshift courtroom in Reston, Va. Given the rapid spread of the coronavirus, Colonel Watkins declared it too risky to hold the hearing because he was traveling from Texas and two defense lawyers were traveling from New York and Connecticut.

By the time he canceled it, one of Mr. Khan's lawyers, Col. Wayne J. Aaron of the Army, was finishing two weeks of quarantine in a small trailer at Guantánamo in order to be able to sit with the prisoner in the courtroom and participate remotely.

Mr. Khan, who grew up in suburban Baltimore, pleaded guilty in 2012. This week's hearing was to discuss witnesses for his sentencing, which is scheduled for May at Guantánamo — after two weeks of quarantine there for participants followed by a weeklong fact-finding hearing on the prisoner's torture by the C.I.A.

For the Khan hearing, the Pentagon had also set up a viewing site at Fort Meade, Md., for four socially distanced journalists to watch the proceedings in feeds that would have toggled between Guantánamo and Virginia. Typically, reporters can travel to Guantánamo to observe the hearings.

Some defense lawyers in the Sept. 11 case are already opposing the idea of litigating remotely, saying they have a duty to consult regularly, and in court, with their clients and other defense team members. No hotline between the two courtrooms would meet their obligations in a high-stakes death-penalty case, they say.

Some of the more senior lawyers live in New York, Chicago and Boise, Idaho, and consider travel to Washington too much of a risk.

The military has disclosed only two confirmed coronavirus cases at Guantánamo, a base of 6,000 residents including sailors' families and foreign guest workers, before it halted disclosures as a national security risk.

But life on the base suggests that it has mostly managed to keep any cases under control through quarantines for new arrivals and strategic closures. The latest lasted 10 days in October, the time it took to send samples to a U.S. lab and get back negative results in a retest of somebody who initially tested positive at Guantánamo.

This week, the Irish pub on the base was admitting up to 50 patrons at a time. The waiters and waitresses, who are Filipino and Jamaican guest workers, wore masks while the diners did not, once seated at the sports bar favored by some of the 1,500 troops assigned to the prison of 40 wartime detainees.


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