By Shawn Boburg The Record
The U.S. naval base at Guantanamo Bay, Cuba — with its hidden detention camps, barbed-wire fences and signs warning visitors not to take photos — may seem an unlikely place to find peace of mind.
But that’s what Tom and Josephine Acquaviva of Wayne say they brought home with them on Saturday, after a week of watching preliminary hearings in the controversial trial of five men accused of plotting the 9/11 attacks.
“The reality is that, they’re getting a fair trial,” Tom Acquaviva said on Friday, responding to critics who have questioned the legality and openness of the 6-year-old military commission created to try war criminals. “I believe they will be convicted and will get the penalty. Eventually they’ll get the death penalty.”Over five exhausting and emotional days, the Acquavivas got a rare, up-close look not only at their son’s accused killers but at a young, evolving judicial system that is at the center of an international debate over detainee rights, the limits of the Constitution and the best way to deliver justice to those accused of committing mass murder in the name of jihad.
That debate has been conspicuously absent from the U.S. presidential race, even though closing the detention camp and moving the trials to New York City was one of President Obama’s first-term promises. Mitt Romney supports the military commissions and has pledged to keep Guantanamo open.
But at Guantanamo this week it often seemed as if the commission itself was on trial: Defense attorneys repeatedly raised questions about its fairness and legality; civil liberties advocates argued for more transparency; and the self-professed 9/11 mastermind, Khalid Sheikh Mohammed, denounced the proceedings from his chair at the defense table.
Tom Acquaviva and other family members said they felt frustrated by delays, including defense attorneys who spent time in court arguing that their office space at the base was infested with mold and rat feces and needed environmental testing. Acquaviva also thought the military judge “went too far” in accommodating the accused, including granting breaks during prayer times and allowing Mohammed to deliver a two-minute anti-U.S. lecture to the court, while wearing a camouflage hunter’s vest over his white flowing tunic.
“I heard a lot about the rights of the accused,” Acquaviva said at a preflight news conference inside a hangar on the base Friday night, a photo of his son Paul hanging from a chain around his neck. “I believe in our judicial system. But what happened to ‘justice delayed is justice denied?’ We’re going on 11 years.”
Some lawyers in the case estimated it could take up to five more years before a trial begins.
Despite the frustrations, the Acquavivas said they came away with an abiding faith that government prosecutors, with whom they spoke several times, were capable of winning a conviction through a fair trial, even if it takes years. Other 9/11 family members, who like the Acquavivas watched the hearings from a soundproof viewing gallery at the back of a high-security prison, said they agreed.
“It helps in a sense because we see what’s happening and see our government lawyers are very good lawyers,” Acquaviva said. “The government is so intent, and justifiably so, on making it transparent and error-free as possible, so that observers from around the world will say, ‘Hey, it was really a fair trial.’”
Eyes on the accused
Acquaviva isn’t sure if any of the five alleged al-Qaida members’ eyes met his. But, starting at the moment they shuffled through the side door of the courtroom at around 9 a.m. on Monday, he stared at them through the viewing gallery’s three-pane soundproof window and held up a picture of his son.
“When I saw them the first time, I said ‘Geez, I expected them to be bigger.’ They looked like dwarfs,” he said. “And their arrogance, as if they were proud of what they did. I felt a sense of outrage. But I couldn’t do anything.”
The government has not released or allowed photographs — only authorized courtroom sketches — of Mohammed, Walid bin Attash, Ramzi bin al Shibh, Ali Abdul Aziz Ali or Mustafa al Hawsawi since they were captured in 2002 and 2003. When they entered one by one on Monday, their bushy black beards flowing over white tunics, the approximately 60 members of the media, lawyers and family members studied them, some looking for clues to the nature of their captivity, others looking for unimaginable evil.
Throughout the hearings, on the days they attended, they appeared relaxed and engaged, talking to translators on their legal team and leafing through large binders with documents. Each morning, the detainees who chose to attend the day’s hearings were transferred to the courtroom from a secret camp somewhere on the 45-square-mile base, a trip that takes 45 minutes, according to court documents.
Access to the court’s viewing gallery was limited. Security was tight.
Uniformed soldiers escorted visitors through multiple security screenings — metal detectors, physical inspections of any belongings, credential checks — before allowing access to the $14 million court complex, built in 2008 specifically for the trial. Journalists weren’t allowed to bring their own pens or notebooks with metal spiral bindings (pen and paper were provided), but they had to bring their passports for entry. Photos and recordings are not permitted nor are unauthorized sketches of the courtroom.
Inside the viewing gallery, security force officers stood along the walls, some whispering into microphones inside their sleeves. From the gallery at the back of the courtroom, attendees could look through soundproof glass windows at the backs of the detainees, defense attorneys and prosecutors, seated at 12 tables.
Monitors and speakers provide an audio and video feed to the gallery, which help attendees to make better sense of the proceedings. But the feed is on a 40-second delay. A CIA representative can cut it off, replacing the feed with white noise and a blank screen if classified information is disclosed in open court, inadvertently or otherwise. That includes information about the CIA’s “enhanced interrogation techniques,” which have been outlawed but are still classified.
The censor button was only used once last week — when a defense attorney referenced beating and chaining someone to the ceiling. The passage was later disclosed after a security official determined the lawyer’s description was only a hypothetical example, not a reference to classified information.
Most of the hearings before the commission delved into fine points of legal theory. Still, seeing the accused plotters and reliving the loss was emotionally taxing for Josephine Acquaviva, who teared up during the news conference on Friday.
“The mother and child relationship, there’s no deeper relationship,” Tom Acquaviva said.
The Department of Defense provided housing for the families — the Acquavivas stayed in a two-bedroom town house — and a victims’ advocate escorted them to meals and informal meetings with officials involved in the case. On a few evenings, the nine family members of victims, chosen through a lottery system, got the chance to meet prosecutors and ask them questions.
“They are really sharp,” Acquaviva said. “I was concerned about the government lawyers, but they are excellent.”
Three of the approximately one-dozen prosecutors have strong New Jersey roots, Acquaviva learned. They include Assistant U.S. Attorney Edward Ryan, who grew up in Union City and graduated from Rutgers University Law School; Lt. Cmdr. Clayton Trivett, of Springfield, from the Navy Judge Advocate General’s Corps who graduated from Seton Hall Law School; and Army Maj. Rob McGovern of Oradell, who formerly played in the NFL. The former presiding judge of the military commission, retired Marine Col. Ralph Kohlmann, is from Wyckoff.
The 9/11 case is complex and shows that, more than a decade after the worst terror attacks in its history, the country’s system for trying terror suspects remains a work in progress.
The case deals with “offenses whose vast scope, massive response, and continuing relevance to countering international terrorism have presented our legal system and government with unprecedented practical and procedural challenges,” according to the lead prosecutor, Army Brig. Gen. Mark Martins.
Indeed, Guantanamo’s location on land leased from Cuba for more than a century has raised constitutional questions about whether the naval base and its courthouse is within the full jurisdiction of the United States.
The U.S. signed its current lease with Cuba in 1934 — and agreed that breaking the lease would require the consent of both parties — and has sent lease checks to Cuba ever since. But the Communist leader Fidel Castro has not cashed the checks for decades. (Castro, 86, was rumored to have suffered from a debilitating stroke last week and to be near death.)
The naval base became home to the first military commission two months after 9/11 under orders from former President George W. Bush.
The Supreme Court ultimately ruled that Bush was not authorized to create the commission but cleared the way for Congress to create a similar military tribunal in 2006 and make amendments that expanded the rights of the accused and bring them more in line with federal civilian and military courts.
But many of the arguments last week still centered on those issues: How the commission rules would compare with those in other courts; how they would play out in a complex case; and whether the defendants were entitled to constitutional rights.
The defense, for example, asked the judge to decide that the constitutional rights recognized in civilian criminal trials would also apply for wartime offenses. Prosecutors argued it was too soon to make that determination, and the judge deferred a ruling.
The judge did not deliver rulings on the most significant motions intended to lay a legal framework for the early stages of the trial, but those are expected in the coming weeks. They include rules the prosecution proposed for handling classified evidence.
The defense said a proposed so-called protective order will prevent the five prisoners from publicly disclosing what happened to them while detained in secret CIA prisons overseas, information that could be used to challenge statements the men made to authorities or to argue they shouldn’t get the death penalty. It could also prevent the public from learning details about the harsh interrogations.
The U.S. government says the accused were subjected to “enhanced interrogation”; critics say it was torture.
Martins, the prosecutor, said military commission rules would not permit any evidence obtained through torture. And he argued that the defendants do not have a right to present evidence about torture unless it is “relevant and necessary” to the case.
Acquaviva said allegations of torture don’t seem relevant to the terrorism charges.
“These people have admitted their culpability,” he said, noting that the defendants attempted to plead guilty in 2008.
On Friday, some victims’ family members invoked the torture that their loved ones likely went through at the World Trade Center and the Pentagon.
“These prisoners, what happened to them or allegedly happened to them overseas just doesn’t cut it for anyone up here,” said Gordon Haberman, who lost his daughter Andrea, 25, in the World Trade Center.
Acquaviva said what he saw in the previous week proved to him that “the accused have gotten every right.”
“They get time to pray. They get food to meet their religious requirements. They get to wear their clothing. They’re allowed to grow beards. They have plenty of lawyers defending them,” he said. “And they’re accused of killing 2,976 people. I don’t know what else any fair observer can possibly say is wrong.”