SACHA PFEIFFER This is On the Media, I'm Sacha Pfeiffer sitting in for Brooke Gladstone. September marked 20 years since 9-11, and the anniversary was commemorated by remembrances, television specials and retrospectives, but amid all the coverage, one legacy of that day went largely unmentioned.

 

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NEWS REPORT It barely merits international headlines these days, but America's Guantanamo Bay prison is still operational...  [END CLIP]

 

SACHA PFEIFFER Still operational. Even though it's been two decades since the attacks and there's still no trial date for the accused.

 

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NEWS REPORT Today, pretrial hearings resumed against the alleged 9-11 mastermind. Khalid Sheikh Mohammed joined four co-defendants in the pretrial hearings for the first time since the proceedings were suspended in February of 2020. [END CLIP]

 

SACHA PFEIFFER Khalid Sheikh Mohammed and his four co-defendants are examples of the inconsistencies of Guantanamo. Sometimes they're headline news, sometimes we barely hear about them for years. Since January 2002, Guantanamo, Gtmo has been both fiercely scrutinized and essentially ignored by the government and the public.

 

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JESS BRAVIN Well, my coverage of Guantanamo slowed down because things stopped happening. I mean, the word news itself suggests that you're talking about something new. [END CLIP]

 

SACHA PFEIFFER Jess Bravin is the Wall Street Journal Supreme Court reporter, and he keeps tabs on Guantanamo, which he first covered in 2002.

 

JESS BRAVIN When you have this kind of Groundhog Day situation where it's always the same, there is no political movement about the overall future of the facility. There's no legal movement about the progress of these cases. If those things are not happening, then there's really nothing to say. It's just, you know, 'the Sun rose yesterday.'

 

SACHA PFEIFFER I also covered Guantanamo. I've made three trips there, and I debated whether I should go back for the 20th anniversary of 9-11. But when I weighed what I thought I'd learned there with the cumbersome process of getting to Gtmo and everything that entails: government charter flights from Air Force bases, bus trips, ferry rides, the Defense Department permissions required, the COVID precautions. I decided it wasn't worth it, and I believe I made the right decision because little to nothing newsworthy ended up happening at those hearings. I'm not the only reporter making those calculations because Gtmo is not a typical Newsbeat. There's a political story. There's a legal story. There's a prison with some prisoners awaiting trial and others being held for years without being charged. But Guantanamo's legal cases are difficult to cover because years have passed, with barely any progress being made. And that can make for a monotonous copy or no copy.

 

JESS BRAVIN Incremental reporting is important, and in a trial that has a clear idea of when the beginning and the end date is. You can do it. I mean, one of the trials going on these days is that of Elizabeth Holmes, Theronos executive, people following every day. What's the latest development here, though? When the increments are so tiny and their significance is so unclear, it becomes almost an impossible task to justify someone spending time reading about it, or, in our case, writing about it.

 

SACHA PFEIFFER Then there's the problem of the war on terror being two decades old, a war we now know was plagued by poor planning, bad intelligence and state sanctioned torture for a while that made front page news and congressional uproar. Not anymore.

 

JESS BRAVIN I think from the perspective of policymakers in Washington, everyone moved on. There was not much interest in the war in Afghanistan, as we know, until it's rather dysfunctional end. And there was even less interest in this backwater residue of the Afghan conflict, where a handful of prisoners were still detained. President Biden's on record as wanting to see this closed, but it's not a top priority for him. He has his hands full with various domestic issues and foreign issues. It's an even lower priority for the Congress, which has actually stood in the way of presidents closing Guantanamo if they wanted to. Congress, when it had a Democratic majority, enacted obstacles to President Obama closing Guantanamo Bay. The Republican majority had no interest in closing it when it was in charge. So it's just there. I mean, you can think of it as sort of like an orphaned enterprise.

 

SACHA PFEIFFER One reason the military courts legal agenda is so stagnant is that Gitmo was given a completely different set of rules to run by, and as Jess Bravin explains, that meant nothing would be simple.

 

JESS BRAVIN It turns out that it is very difficult to create a court system and a legal system from scratch because the one that the United States already has, the one that evolved out of the British colonial system into the current federal and state systems we have now. It has spent two centuries answering legal questions that arise how to deal with various things that occur in a criminal trial, how to deal with evidence, how to deal with conduct of attorneys, how to procedurally address different issues and questions that arise. Here, this new system was essentially devised as a makeshift replacement for something very different that President Bush envisioned in November of 2001.

 

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PRESIDENT BUSH Soon after the war on Terror began, I authorized a system of military commissions to try foreign terrorists accused of war crimes. Military commissions have been used by presidents from George Washington to Franklin Roosevelt to prosecute war criminals because the rules for trying enemy combatants in a time of conflict must be different from those we're trying common criminals or our members of our own military. [END CLIP]

 

JESS BRAVIN What he envisioned then, was essentially a near summary proceeding that could have a trial and move to execution within months because it was explicitly based on a singular event that took place during World War Two under FDR's administration.

 

SACHA PFEIFFER When you say execution, are you referring to executing people?

 

JESS BRAVIN Yes, I'm referring to executing people because that's what occurred in the German saboteurs case in the 1940s. In that case, you had eight men who were arrested in the United States and tried in secret by a military commission that was housed in the Department of Justice, and 6 of them were executed by the electric chair within a couple of months. That was the specific model that was on the mind of the Bush administration when they authorized military commissions. But what we have now is something that is nothing like that.

 

MICHEL PARADIS That's right. You're dealing with the men who are middle aged and older and increasingly are failing health that we were holding at $15 million a year. And if we were doing that in Charleston, South Carolina or anywhere else in the United States, I think we could have a rational conversation about it, but Guantanamo is this brand for the war on terror, and that has lots of implications to it.

 

SACHA PFEIFFER Michel Paradis is a senior attorney for the Department of Defense, who has represented defendants at Guantanamo since the final years of the Bush administration. Gitmo's court and prison were established in Cuba to be beyond the reach of usual U.S. law, but Paradis says Gitmo's jury-rigged legal system is collapsing from its own lack of structure.

 

MICHEL PARADIS If there's been one truth about the Guantanamo hearings, particularly the 9-11 case, it's that there are two steps back for every step forward and arguments that become about arguments and then arguments about the arguments we're going to have about arguments and so with any one hearing, with rare exceptions where, for example, witnesses might be called, like in the torture hearings that are taking place right before the hearings were suspended for the Covid pandemic for another year and a half. I would have had a lot of trouble saying that anything particularly interesting or newsworthy is likely to happen at a hearing other than lawyers, again, just talking about what kind of trial, what kind of hearing we might ultimately have. If and when we ever have a trial I\in the 9/11 case,

 

SACHA PFEIFFER Paradis calls the court at Guantanamo a quote “Kafkaesque bureaucratic nightmare.” One that even journalists who covered Gitmo regularly can find difficult to navigate, and that inexperienced reporters may have no hope of following.

 

MICHEL PARADIS I would actually have a lot of sympathy for reporters going down to watch these hearings because something very consequential might be being debated, something that gets to the core of whether or not the Constitution applies, or whether or not the CIA has to answer for its use of torture during the early years of the war on terrorism. These are incredibly consequential issues, but they end up getting debated in this highly abstruse language that only really the lawyers involved understand because of levels of euphemism and bureaucracy, and the classification system will often require people to use specific jargon in order to not run afoul of the classification rules. And so it's almost as if people are speaking an entirely different language. That really does conceal the real stakes of often what is going down.

 

SACHA PFEIFFER I've sat in that military court and witnessed that dense legal jargon that is barely comprehensible that you're talking about. I mean, debates about the law of war, what is war? When is a war over? Which may be interesting discussions, but why is that happening 20 years after the 9/11 attacks, when you're still not able to bring it to trial, you walk out of that court after having been there hours. Feeling that you have nothing to report yet. The fact that you have nothing to report helps explain why this trial has still not happened 20 years later.

 

MICHEL PARADIS That's exactly right. There has been a refusal to answer the basic questions and the military commission judges who and I don't mean this in any derogatory way because, you know, they're all professional military officers and judge advocates and, and probably quite good military lawyers, but when it comes to presiding over complex international terrorism cases, they're complete amateurs. These are not cases that are typically brought ever in the military. These cases are normally brought in places like the Southern District of New York or the Eastern District of Virginia. And so the military judges will often find themselves completely outmatched and overwhelmed by the complexity of the issues in front of them. And their instinct invariably is going to be to punt the ball down down the field and so that difficult questions don't get answered. And regrettably, I think there has been a tendency by the U.S. courts to do the same. To look for ways to not answer the hard questions that could be seen as politically controversial because they relate to Guantanamo. Because Guantanamo makes everything a little more tense, it makes everything a little more sensitive and seemingly politicized, even when it leads to this kind of almost pathological dysfunctionality in the actual criminal justice process where you need certainty. That's the one thing lawyers need to know, they need to know what the rules are so they can try a case. And so almost every actor, responsible actor, in the military commission system has a vested interest in avoiding the hard questions. And that leads to incredible delays and uncertainty, which in turn leads to more incredible delays and uncertainty

 

SACHA PFEIFFER For all these reasons, covering Guantanamo is a major reporting challenge, but there is one reporter who has essentially devoted her life to covering Gitmo and who spent more time there than any other journalist.

 

MICHEL PARADIS Unless I actually make the trip myself to Guantanamo to watch a hearing. I'm relying almost entirely on the tweets of Carol Rosenberg from The New York Times, because that is how almost everyone who follows these cases learns what's going on in the hearing rooms on a day to day basis because the government refuses to have cameras in the courtroom. There are very limited access. There are remote viewing sites in the national capital region, but the access to those is very limited. And so the lack of press coverage just makes it hard even for insiders like myself to know what's going on unless Carol Rosenberg is following it.

 

SACHA PFEIFFER Paradis said even some lawyers with security clearances depend on Carol Rosenberg for updates. And he said reporters with less experience often end up falling into a Gitmo marketing trap of sorts.

 

MICHEL PARADIS Reporters will go down, typically for the very first time to this what essentially, a movie set.

 

SACHA PFEIFFER Why do you call it a movie set?

 

MICHEL PARADIS Because Guantanamo is one of the most secure, well-established naval bases in the entire world. There are Starbucks, there's a Subway, there's a Kentucky Fried Chicken, there's a McDonald's, there's an ice cream parlor, there's bowling and tennis courts and a golf course. It's a place like any other military base around the world it's, you know, a small town. Yet there's this little corner where they have set up tents that are largely empty or at least underused, where it's designed, in essence, to look like we're operating in the foothills of Afghanistan in order to make people think this is part of, you know, this war on terrorism. And I think that betrays the very boring and almost depressing reality of it being this place with really fundamental breaks from the American tradition of the rule of law and human rights, with a certain kind of just bureaucratic dysfunctionality. Massive waste fraud and abuse by government contractors and government agents alike so that it costs hundreds of millions of dollars to maintain this process, but it's always sold a lot of money. You spent to package it as this place that is the tip of the spear in the war on terrorism

 

SACHA PFEIFFER Paradis describes it as self-defeating legal theater, and it didn't have to be this way.

 

JESS BRAVIN The contrast between this and, say, the Nuremberg trials after World War Two is so astounding that it's hard to even think about them in the same breath.

 

SACHA PFEIFFER Jess Bravin.

 

JESS BRAVIN I mean, there were criticisms of the Nuremberg trials, but if we think about the way the allied powers approached them, they were public. They had newsreels, and there were newsreel cameras in the courtroom.

 

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NEWSREEL The old Palace of Justice at Nuremberg stages what is without doubt the greatest trial in the annals of the human race. In the dock today of a man who for 12 years swaggered across the continent of Europe, ordering mass murder, slavery and robbery on a scale which staggers a sane imagination. The international military tribune sentences you to death by hanging very soon after the last sentence had been read, the people of Nuremberg were rushing to learn the former leader's fate, perhaps as they read, they remembered the appalling cost of the Second World War. [END CLIP]

 

JESS BRAVIN It was actually staged in a way to make it understandable and to allow the world to watch these proceedings because the allies wanted to say, eh, we were fighting a terribly evil enemy and b we are treating them properly in accord with the rule of law. Those are the-- those are the lessons we want the world to take away, and over time. Although there were, of course, criticisms in the 40s, that's really been the takeaway from the Nuremberg proceedings, and they also happened extremely quickly. Within months of the end of World War Two, the surviving Nazi leadership was put on trial. And here, you know, 20 years after 9/11 trial hasn't even started, even though these defendants tried to plead guilty, more than 10 years ago.

 

SACHA PFEIFFER So what is the best way for reporters to cover the grinding, expensive, dysfunctional legal process happening at Gitmo, a place where the government's rules for media access are frequently changing? How should journalists maintain public interest in this important story? When there's very little new to report on a monthly or even yearly basis, Jess Bravin and I and other reporters who cover Guantanamo constantly wrestle with that question.

 

JESS BRAVIN I don't think we can afford to ignore it. I think that when reporters ignore things or don't have the bandwidth to follow things, they could. That's when mischief tends to occur. So I think that we have to continue watching it and we have to look for things that might be an opportunity to make this story resonate and be compelling.

 

SACHA PFEIFFER Jess Bravin now covers the Supreme Court for The Wall Street Journal, and continues to monitor Guantanamo. Thanks for talking about this.

 

JESS BRAVIN You bet. See you in 20 years.