The Galaxy 19 is a communications satellite that orbits over North America, beaming free-to-air programming to hundreds of thousands of households. It also happens to be the way detainees at Guantánamo Bay get their television. The satellite carries a wealth of religious programming, from “Bible Explorations” to “God’s Learning Channel” to “Global Buddhist Network” — not a lineup well tailored to the particular viewing interests of the Gitmo demographic. What detainees tend to be most interested in is current events, and among the news channels that the satellite carries, RT is one of the most popular. So for lawyers who want their Guantánamo clients to see that their interests are being represented, RT is probably the best option. For that reason, in 2014, a young defense lawyer named Alka Pradhan became a frequent guest on the channel. And because Pradhan is technically an employee of the Department of Defense, her appearances constitute one of countless idiosyncrasies of Gitmo: a contractor for the United States military using a Russian propaganda channel while working for Qaeda terror suspects.
That was one way she wound up auditioning, unwittingly, for one of the most high-profile detainees still there: Ammar al-Baluchi, the 39-year-old Pakistani man accused of running money for the Sept. 11 attacks. In 2015, when Baluchi won approval to add a new lawyer to his team, he wanted the woman he’d seen on RT, defending his neighbors with so much vigor. He’d studied her media appearances so closely that he knew her tics, her tendency to put a hand up and partly block her mouth, and by the time they met in person, he felt as if he already knew her. Since then, Pradhan’s sole job has been to defend the suspected Qaeda moneyman. The government is trying to execute him, along with four co-defendants, all charged with organizing the worst terrorist attack in the nation’s history.
Pradhan’s title is “human rights counsel.” Aside from trying to win a trial that hasn’t yet begun, her job is to remind the tribunals, and as much of the world as she can, that her client is human, that he has rights and that those rights have been brutally violated. She believes Americans don’t like to think about the fact that their country tortured people and put them in blindfolds and flew them to an island nation with which it had no diplomatic relations. That these men were detained for 12 years, some of them 15, and even on their release were often dropped in countries that they had never been to and sometimes ones they hadn’t heard of: Syrians in Uruguay, Tunisians in Slovakia, a Yemeni in Estonia, Uighurs in El Salvador, Palau and Bermuda.
What’s more, a law passed in 2011 prevents anyone ever detained at Guantánamo Bay from coming to America, even to the supermax facility in Colorado that no one has ever escaped from, even if you’re demonstrably innocent, as if the place itself taints you. The law also blocked trials in America for any Gitmo detainee, even those against whom the United States may have had viable terrorism cases. These are the actual masterminds, the hardened jihadists — not the ones swept up by indiscriminate bounty programs and a credulous intelligence apparatus, which was the case for an overwhelming majority of them. The law means America can’t try Sept. 11 terror suspects in America. Instead, a $12 million ultrasecure Expeditionary Legal Complex was set up on an old airstrip on the base, and for the last five years, prosecutors and defense lawyers have been arguing about how to hold a trial there. No one can say for sure when, or even if, trials will begin. The proceedings seem stuck in an interminable pretrial phase.
When Pradhan flies down to Gitmo, which she does every month or two, her conversations with her client often have less to do with proving his innocence than with what has happened to him since his suspected crimes. One of the first things she learned about Baluchi, before they met, was that the C.I.A. had tortured him, and she has come to believe that America has waterboarded away its ability to convict him. It’s an international norm that countries don’t execute people they have tortured; the Geneva Conventions go as far as to say such prisoners must be rehabilitated. If America executes Baluchi, Pradhan believes, it will cede whatever eroding toehold it has on a moral high ground. Beyond that, what concerns her is that her client is suffering; that he has real physical and psychological injuries from his torture that have yet to be addressed. The way she sees it, by denying him adequate treatment, the government has continued to torture him.
So on a morning of brutal January weather, two days after Donald Trump’s Inauguration, Pradhan, who turned 36 this month, left her husband and young daughter at home in Washington and boarded a plane at Andrews Air Force Base to fly past tornadoes and put herself between her government and a man accused of helping arrange the murder of 2,976 people. On board were defense lawyers, prosecutors, the judge, family members of Sept. 11 victims, interpreters, paralegals and the press corps. Virtually everyone needed to carry out what is arguably the trial of the century is airlifted to the Caribbean every month or so, which is always inconvenient, but on this trip, it was also terrifying.
Three hours after a harrowing takeoff through heavy winds and horizontal rain, the plane dropped below cloud cover toward the southeastern tip of Cuba, where the sky was clear but the wind was full. Six-foot swells rolled in the bay. High gusts whipped the plane as it moved toward the runway, and it yawed too steeply. A wing swung toward the runway; in the cabin, arms moved in unison to armrests. Pradhan got nervous. The pilot overcorrected, sending the other wing downward. Outside, a young Navy man watching the approach turned away to cross himself as the banking jet overshot the tire-stains left by previous landings, heading for the water. Pradhan was now acutely aware of the plane’s size and the speed with which it was running out of runway. She saw a wing nearly scrape the ground, and she braced for impact.
Finally, the wheels hit, torsos shifted, the smell of scorched rubber and the sound of screeching wheels arrived at the same time. The plane taxied and stopped, the forward door opened and an incongruously chipper man climbed aboard. “Welcome to sunny Guantánamo Bay!” He was the officer in charge of Military Commissions South, but he sounded more like a cruise director. “Victim families first!”
Pradhan was an intern at the United Nations headquarters in 2003 when, 7,000 miles away, a team of Pakistani rangers tracked down Ammar al-Baluchi in Karachi and apprehended him. Pradhan would later spend years trying to find out from the American government exactly what happened next. The government has not been forthcoming about these details, but by cross-referencing C.I.A. cables, other documents obtained by the Senate Select Committee on Intelligence, comments to the press by unnamed officials with access to the Senate report’s classified source material and a small number of declassified letters that Baluchi himself has written, it’s possible to develop a partial picture of what Baluchi’s time in custody was like.
From C.I.A. cables, we know that even in the process of being detained, Baluchi was forthcoming. The Pakistanis held him for about a week and found him cooperative. One official used the word “chatty.” Even when Baluchi was in Pakistan’s custody, the C.I.A. was monitoring his interrogation on a video feed, and agents sent cables back to Langley saying the interrogation was producing intelligence.
They decided to torture him anyway. The C.I.A. extracted Baluchi from Pakistan’s custody and took him to the Salt Pit, a secret black site near Kabul, according to officials who spoke to The Washington Post in 2014. This site was also known as Cobalt, and one interrogator, during an internal review, described it as an enhanced-interrogation technique in and of itself. Another called it the closest thing he’d seen to a dungeon. Detainees there were stripped down, bound with tape and then dragged, naked, up and down the halls, while people punched them. Baluchi says his head was dunked in a tub of ice water, his face held under the surface until he thought he was drowning. His head was shaved, then driven against a wall repeatedly, so forcefully and so many times that he saw sparks of light exploding in front of his eyes, growing in size and intensity until he experienced what felt like a jolt of electricity. His vision went dark, and he passed out.
He came to in a different room, perhaps a different building, maybe even a different country: We know from media reports that several months after the Salt Pit he was taken to a black site in Romania. Impossibly loud heavy-metal music played, intermixed with grating noises that felt to Baluchi as if they were digging into his ears and pounding his brain. He didn’t know how long he’d been unconscious. He was naked. The room was cold and dark. He remembers that he was too weak to stand, but that his hands were suspended above his head in cuffs attached to the ceiling, so as his body slumped, his weight pulled his wrists into the metal, which bore into his skin. When he complained, his wrists were levered higher.
He was dehydrated, and his head throbbed, and when captors came by, banging a rod against the steel door and shining lights in his face, he begged for water. Someone came with a cup, showed it to him and poured it out. This ritual was repeated.
He was kept awake. When he fell asleep, he was punched. His legs throbbed and swelled from standing. Finally, Baluchi saw a doctor approach. The doctor measured the swelling and approved Baluchi for more abuse. In Baluchi’s account, his hands were kept bound for months, so long that when he was finally transferred to yet another black site, his captors couldn’t remove the handcuffs because the metal had rusted shut, and someone had to find bolt cutters.
We either don’t know or can’t corroborate all of the techniques that were used on Baluchi, because so much of the program remains classified, withheld even from Pradhan and her co-counsel. (The C.I.A. declined to comment specifically on Baluchi’s claims of torture.) And though Baluchi has written extensively about what happened to him, only a small portion of what he thinks, writes and says makes it through classification review. But we know that he was subjected to the C.I.A.’s rendition program for nearly three years, between his arrest in Pakistan and his arrival at Gitmo. It was a period during which he had no contact with his family but knew that they thought he was dead. In a sense, he was. He goes by Ammar al Baluchi because that name — an alias he had used — was the one the C.I.A. called him during his torture. Baluchi feels his birth name, Ali Abdul Aziz Ali, is now foreign to him, that it belongs to a different person, someone who died in custody.
We know that all of it — the movement, the music, the creative administration of pain — was part of the C.I.A.’s attempt to instill in him a sense of “learned helplessness.” We know that “learned helplessness” is a theory developed in the 1960s by psychologists who gave electrical shocks to dogs. And according to the Senate investigation, the program produced no new intelligence from Baluchi or anyone else subjected to it.
While Baluchi was being escorted through the C.I.A.’s rendition program, Pradhan was collecting degrees from America’s finest academic institutions. She was raised on stories about her great-grandfather, who taught himself law in a remote north Indian village and then spent his days defending highway bandits. Her grandfather worked for the United Nations, so she saw international relations as glamorous. She hybridized the two interests: a bachelor’s degree in international relations and a master’s in international law from Johns Hopkins, a law degree from Columbia and a master of laws with a focus on human rights from the London School of Economics.
After three years at the law firm White & Case in New York, angling to get on every foreign assignment she could, she quit and began working for a series of nonprofit groups, refocusing on what she figured to be the most grievous violation of international law that her country was actively carrying out — the detentions at Guantánamo Bay. In 2013, she began working for Reprieve, an organization that helped defend detainees there. One of her first clients was Emad Hassan, a genial young man with an easy sense of humor, held at Gitmo because of a translation error. He was born 115 miles from a Yemeni village with the unfortunate name of Al Qa’idah, and that’s what he was thinking about when a U.S. serviceman asked whether he had “any connection to Al Qaeda.” He said yes.
Even after the mistake was made known, there was no easy way to process him out. He spent 13 years in detention. When Pradhan first met him, what struck her, more than anything else, was his hair. He had long, loopy braids sprouting from his head, which reminded her of the rapper Coolio. He explained that it was for video chats with his family. “I’m trying to grow a ’fro,” he said, grinning, “because it makes my brothers and sisters laugh when they see me. It makes my mother laugh. My mother never laughs anymore.”
Then, within seconds, he was crying. He asked why this was happening and when it would end. He was all over the place; Pradhan found it heartbreaking. It was formative for her, meeting this man with the ridiculous story and the ridiculous hair, whose experience was a caricature, a symbol of a system at its absurd extreme. But at that point Pradhan had a sample size of one. For her, Gitmo was Emad Hassan.
She met six detainees and represented even more Guantánamo clients remotely, arguing with anger on behalf of hunger strikers being force-fed, trying to persuade foreign countries to take clients cleared for release and trying to educate the public, lest they forget about Gitmo. And when the team defending one of the suspected Sept. 11 plotters, by then in his 12th year of United States custody, won approval to hire a new lawyer to focus on human rights, he wanted the woman who looked as if she could be his sister. He wanted Pradhan.
She was the only woman on the team when she joined, and that helped: Baluchi thinks women are more empathetic. And it doesn’t hurt that Pradhan and Baluchi have familiar backgrounds. His family is from Pakistan, though he wasn’t born there; hers is from India, though she wasn’t born there. He likes to speak Urdu, she likes to speak Hindi; they are essentially the same language, written differently. They were both international, even as children, she born in Canada, living in America, spending summers with a grandfather in Geneva; he lived in Pakistan, Iran, Dubai and Kuwait and learned a half dozen languages before he turned 20. He’s Westernized but rooted in the East; he’s wise, quick-witted and surprisingly funny, and these happen to be precisely the qualities she values most in friends. So they treat each other like friends. When she’s not with him at Gitmo, she sends him three letters a week.
Lt. Col. Sterling Thomas, another member of Baluchi’s defense team, sees a different reason the detainee has bonded so strongly with Pradhan. “One of the things that strikes me most closely, as one of the few African-American officers in the JAG corps and in the military commissions,” he says, is “Ammar’s understanding of the differences and uniqueness of people of color.” Thomas believes Baluchi and Pradhan have a genuine, profound connection, and that it derives from the fact that “they can look at their similarities of background and say: ‘O.K., look I’ve been in situations that are similar to you, where you feel you’re the only person of a certain background in a world, where you face that additional scrutiny based on being the person who is different. You face that additional challenge being the person whose credentials might be questioned.’ ” The way Thomas sees the relationship, Pradhan and Baluchi connect because Baluchi is a keen observer of American culture and sees in Pradhan someone who “understands what it’s like to be otherized, dehumanized.”
Because Pradhan wears a head covering in court, you would be forgiven for assuming she’s Muslim. (Her family is, in fact, Hindu.) Once, during a hearing I watched at Fort Meade via an encrypted satellite feed, I saw her get up, begin speaking and then stop midsentence to address something that nagged at her. She told the court that everyone had been mispronouncing the name of a city in Pakistan, and because it felt to her like a way of dehumanizing her client, she commenced a history lesson about how the city got its name. It was a striking moment. It felt like the world’s most bold cultural-sensitivity training, a brown woman in Muslim dress instructing a largely white, largely male and largely U.S. government-employed courtroom about how to better respect the Sept. 11 defendants.
Pradhan stands out because she feels even more strongly, and is willing to make even greater leaps, than even most critics of Gitmo. Where many see a country wobbling between its ideals and its security, she sees a system that is deliberately and aggressively racist. “This is a legal venue that was designed for noncitizen Muslim males, right?” She often ends sentences like this — as questions, as if she’s addressing an invisible envoy of the United States government who’s always standing by and who is so stunted Pradhan needs to stop and make sure he’s following along. “If we had white guys from, you know, France being held, I remain convinced they would not have been tortured, I don’t think,” she says. “I don’t think they would have founded an entirely different legal system for them. I don’t care what you think they did.”
The volume and release with which Pradhan speaks compensate for the fact that her client’s words, his very thoughts, are classified. “Everything that comes out of his mouth,” Pradhan says, “and everything that he writes on a piece of paper, is presumptively classified. It doesn’t matter if he writes down the lyrics to a song by Miley Cyrus. It’s classified. And I have to put it through classification review before I can share his exact words with anyone.” Pradhan feels she is speaking for a man with no voice, so she does so with little reservation. If she makes the prosecution uncomfortable, good. If she makes the victims’ family members who are watching uncomfortable, which she knows she sometimes does, that’s a shame, and she wishes she didn’t; then again, her duty is not to the victims of Sept. 11, but to one of the suspected perpetrators.
The day after the flight, Pradhan got in the van she had been assigned for the trip, to run some errands. The van was new, which was nice, but huge, which was strange, because the only other person who would occupy any of the 15 passenger seats was me. Driving around the base, dodging iguanas and passing tent cities with all the empty bench seats behind her, Pradhan looked like the world’s loneliest camp counselor. She made a detour to take me up to Camp X-Ray, which housed the first group of detainees in 2002. Even though it was only used for a few months, it’s Camp X-Ray that most people think of when they think of Gitmo: kneeling men in orange suits, outdoors, fenced in like zoo animals. It’s now rundown and overgrown. “We thought they’d be here for like a few weeks maybe,” she said. “You know, I don’t know what we thought we were going to do with them.”
Then, she left to meet with Baluchi at Camp Echo, an arrangement of trailers set inside a security fence garlanded by razor wire and draped in green sheeting, which together speak to another Gitmo paradox: much of the infrastructure is temporary, even though the status of the accused feels fixed. They meet here because Baluchi lives in Camp Seven, and neither of them knows where that is. It’s a structure whose very existence was secret until a few years ago and whose location still is. Neither of them knows where Baluchi goes at night; presumably, it’s somewhere on base. When they spend time together, it’s in the courtroom or at Camp Echo, in a trailer.
I was not allowed to meet Baluchi — he can’t meet anyone besides his lawyers — so what I know about Pradhan’s visits with her client comes from members of the legal team. They won’t share direct quotes from him, because other Gitmo lawyers have had their clearances suspended or revoked for sharing too much from their client. (This summer, a military judge amended the existing rule to say that no legal mail can be released to a third party. “Legal mail” is an expansive term that could include notes or even items committed to memory during lawyer-client meetings, so the following window into their work together would not be possible had Pradhan not shared it before the order was issued.)
On that day, Pradhan had important coming motions to discuss with Baluchi about N.S.A. surveillance, about trying to access Red Cross records that might shed light on his torture and one about improving the conditions of his detention. But when she arrived, she found Baluchi not quite ready for legal matters yet. He was thinking about mouth-feel.
At Guantánamo Bay, he is a host, and it’s important to him that Pradhan feels welcome. So he prepares her a meal. It’s a challenge, because his ingredients are limited and his guest is a particular eater; a vegetarian who likes spice and kale. Sometimes the prison meal is spaghetti, and Baluchi carefully dissects it, salvaging the part that hasn’t touched the meat sauce, and combining it later with oil and spices if the team has brought any past the guards. Then, for mouth-feel, he’ll dig around for something crunchy. He has learned to pay attention to vegetables, because even though military-issue salads aren’t necessarily the freshest, raw onions help with texture. (The place has a way of bringing out creativity; Pradhan has learned some Gitmo culinary tricks as well. She found that the hot cakes from the McDonald’s on base are the best cheat foods to bring to hunger strikers, whose atrophied jaw muscles and throats sore from feeding tubes can handle only soft foods.) Baluchi prefers prayer rugs to chairs, so when he’s done assembling the meal and they sit down to eat together, they sit on the floor.
Pradhan was preparing a long-shot motion in an effort to persuade the judge to remove Baluchi’s designation as a “high-value detainee,” a term by which the Department of Defense means a suspected terrorist put through the C.I.A.’s rendition program. The “high value” designation is cited as a reason for a variety of circumscribed freedoms, from detention in a secret location that lawyers can’t visit, to minute and seemingly meaningless restrictions like the prohibition on noncommercially sealed food items. Baluchi said he thought the language that she used was too dry. It needed color, so he asked her to include some humanizing detail. What if she reminded the court that when his father died in 2012, months passed before he could speak to his family?
Everything about Guantánamo Bay is made opaque, kept obscure to outsiders through the restriction of access, the distance from news bureaus and the tangle of logistics it takes to get there and back. It’s hard to know how it all works. Baluchi understands this. But he figured people might relate, emotionally, to being cut off from family after a parent dies. Pradhan added the anecdote to the motion.
Another significant part of Pradhan’s job is trying to detail Baluchi’s torture and abuse. She and her colleagues expect the prosecution to say that Baluchi gave incriminating statements free of coercion. But if he made a statement on a given date, a document like a medical report from the same date could dispute the notion that he made the statement freely. There’s a trove of files that would allow the team to do that kind of cross-referencing, but the defense doesn’t have access to it. The prosecution does. The defense must settle for “substitution” documents: files that prosecutors create themselves, with judicial oversight, according to their own sense of what’s relevant to the defense. Pradhan is certain she doesn’t know everything that happened to Baluchi, which is frustrating both for planning his defense and for trying to get him treatment.
This predicament also sets the defense up for occasional surprises, like when a member of the team went to see the 2012 movie “Zero Dark Thirty,” about the hunt for Osama bin Laden, and realized that one of the main characters was very obviously Baluchi. The opening segment of the film showed a man held at a black site in an undisclosed location, being tortured violently. Baluchi’s first name, Ammar, had not been changed, nor had his family details, where he was arrested or what his suspected role was in Al Qaeda. While information about Baluchi’s interrogations was being withheld from his own defense team, it had apparently been shared with the filmmakers Mark Boal and Kathryn Bigelow, who seemed to know more about Baluchi’s treatment than his own lawyers did.
In the case against Baluchi and his four co-defendants, the United States has leveled charges that include conspiracy, terrorism, hijacking and 2,976 counts of murder. The government is seeking the death penalty for all of them. But more than 16 years have elapsed since the attacks, and the actual trial is probably still a long way off. There are years of pretrial motions to be argued, because, though this may be the most significant trial of our lifetimes, it is also a legal experiment. And it’s a legal experiment with a few false starts already.
President George W. Bush thought the naval base at Guantánamo would be the best location for holding people and trying them without lawyers, but the Supreme Court said he couldn’t do that. So he asked Congress to commission military-style tribunals. It passed the Military Commissions Act of 2006, allowing for hearings to happen at Gitmo, which they did until Obama came into office vowing to close the base and try defendants in federal court. Preparations got underway. Then that plan faltered, too, this time succumbing to public outcry about suspected terrorists on United States soil and an ongoing concern that federal courts were incapable of trying suspected terrorists.
Forced to relent, Obama reverted to Bush’s fix: military tribunals at Guantánamo. President Trump has promised to keep the facility open. But the system still has to be built before it can be used, and seemingly fundamental issues are only now being addressed. For instance, military commissions are supposed to try war crimes. Are we at war with Al Qaeda and, if so, was that war already underway at the time of the Sept. 11 attacks? Only in the spring of 2016, after four and a half years of pretrial hearings, did the military commissions hear arguments about whether military commissions were even the right venue. For many experts, it’s hard to imagine how the prosecution could ever secure a conviction, then a death sentence, then have it all hold up on appeal, given the taint of torture and everything else.
Karen Greenberg, who is the founder and director of Fordham University Law School’s Center on National Security and who has published books about Guantánamo and the terror courts, says the commissions are essentially doomed. “It’s hard to find an element of the 9/11 commissions that’s not challenged by logistics,” she says. “Whether it’s logistics of movement and transportation or logistics of the legal process, every single point seems to be impeded in the military commissions.” And she doesn’t see what’s happening now as a genuine inquiry into guilt but more as a kind of dramatization. What’s really happening here, she says, is just “perpetual detention with the patina of a court process.” One of the most likely scenarios is that the defendants just die at Guantánamo, never having been sentenced.
To convict Baluchi in particular, and to secure a death sentence against him, the prosecution has to prove not just that Baluchi was involved in the Sept. 11 plot but that he knew he was involved. Pradhan doesn’t think they can.
The prosecution’s case against Baluchi starts in early 2000, when his uncle, Khalid Sheikh Muhammad, a top Qaeda official, asked him to send a video called “CityBird” to Pakistan. It was an instructional film about the cockpit of a Boeing 767, the same sort of plane that would be used to take down both towers of the World Trade Center. Mohammad then began asking his nephew to perform other odd jobs, from buying flight simulators to setting up bank accounts to purchasing plane tickets to wiring money to some of the hijackers.
Pradhan won’t say whether she believes that these transactions took place; she says that she hasn’t seen enough evidence to address them, and it would be imprudent for her to concede the factual claims against her client. But when asked, she returns to what she says is legally the more relevant matter: how much he knew. “One of the biggest questions is intent,” she says. “For a death-penalty trial, you have to have specific intent to commit these crimes. I haven’t seen anything from the government that works in their favor on that question. He didn’t know. He found out about Sept. 11 on Sept. 11. That’s enough.”
Altogether, he wired about $150,000 to people involved in the plot all around the world, according to the government. He was asked at an early hearing about his contact with Marwan al Shehhi, who flew American Airlines Flight 175 into the South Tower of the World Trade Center. “Did you wire transfer over $100,000 in separate transactions to al Shehhi? Do you admit to that?”
“Yes,” he answered.
“What was the purpose of that money?”
“I don’t know.”
At the time, Baluchi says, it was just friend of a friend asking for a favor. Gifted at languages, Baluchi was also tech-obsessed and a problem solver, so in addition to his job at a Dubai electronics company, he had a side business helping friends with logistics. Sending money for people wasn’t out of the ordinary, particularly when an elder in your own family asked you to do it, even if that elder was Khalid Sheikh Mohammad. As for whether Baluchi wondered about the sheer amount of money he was moving, his response was: Why should he have? He had wealthy friends from Gulf States who often had large sums of money to move. Once, one of his friends wanted to buy a Ferrari when he arrived in the United States to study, and he asked Baluchi to handle a transfer. “So,” Baluchi once said, “you can imagine Ferrari is $300,000. This is $100,000. So it’s not that big question.”
Baluchi claims that when people asked him to help move money, he had no reason to be suspicious. As he once put it, no one asked for his help sending money to “hijacker Marwan.” In his own reckoning, he’s precisely as responsible for Sept. 11 as everyone else who facilitated it unwittingly: rental-car clerks, flight instructors and United States financial institutions.
According to Terry McDermott, one of the authors of “The Hunt for K.S.M.” and the foremost civilian authority on Khalid Sheikh Mohammad, it is plausible that Baluchi didn’t know what exactly he was involved with before the attacks. His uncle was fastidious about operational security. Mohammad used dozens of SIM cards and aliases, practiced compartmentalization and used multiple vehicles when traveling to and from meetings. It would have been out of character to jeopardize a mission by letting anyone know what the plan was. And Mohammad, for what it’s worth, does not deny his own involvement in the attacks; he proclaims it. He maintains that his nephew knew nothing.
McDermott, however, believes Baluchi willingly participated, even if he didn’t know specifically what he was participating in. McDermott’s reporting holds that Baluchi was most likely initiated into the cause of jihad as teenager, when his cousin Ramzi Yousef, one of the terrorists behind the first World Trade Center bombing in 1993, was injured in a bomb-making accident. While recovering, Yousef came to stay in Zahedan, a town in the southeastern corner of Iran where Baluchi was attending boarding school. McDermott believes Yousef indoctrinated him during that time. Furthermore, McDermott believes Baluchi sought out Mohammad and asked to help, rather than the other way around. After all, Mohammad was first indicted in 1996, and though the indictment was initially sealed, it wasn’t as if his activities were unknown. McDermott finds it hard to believe that Baluchi didn’t know at least what kinds of things his uncle might need money for. And even if $70,000 wasn’t a lot compared to a Ferrari, it was a lot for someone like Mohammad, who had no apparent source of income.
There are other details that McDermott finds difficult to square with the idea of Baluchi as unwitting participant. Baluchi is smart and worldly; he speaks six languages. Shouldn’t he have been able to figure out something untoward was going on? And, McDermott points out, he used aliases to make some of the wire transfers and purchases. Why would he have done that if he didn’t think he was involved in something criminal? (McDermott also believes Baluchi was involved in the beheading of Daniel Pearl.)
The C.I.A. reported that even after Sept. 11, Baluchi was involved in plots against Western targets in Pakistan, including the United States Consulate in Karachi. And the agency says that when Mohammad was arrested in 2003, his plans for another spectacular operation fell from uncle to nephew. Baluchi is said to have pursued, among other things, a kind of British Sept. 11, in which Al Qaeda would hijack planes from Heathrow, turn them around and crash them into the airport and an office building in the Canary Wharf business district. Security was deemed too tight, however, and the plot evolved to taking planes from Eastern European airports and crashing them into Heathrow.
But the C.I.A. learned of these plots from Mohammad after its operatives began waterboarding him, which they did at least 183 times. Much of what he said during that period has since been proved false. Mohammad later retracted those statements, even as he continued to boast of his own involvement in Sept. 11.
The day after the meeting with Baluchi at Camp Echo was a hearing day. Security was tight. Baluchi was brought into the hearing room, a large space with one long table for each of the five defense teams, a chair at the end of each table for a defendant and a row of inward facing seats against a side wall for the guard force. Two uniformed men walked on either side of Baluchi, latex-gloved hands on his biceps, and deposited him in the chair next to his legal team. He wore sunglasses. The white light in the room is a trigger for him, worsened by a brain injury that a psychologist consulting for the defense says he received in C.I.A. custody. Pradhan says that although Baluchi didn’t see natural sunlight for three years when he was in the secret prisons, the C.I.A. used bright artificial light together with beatings, dousing, extreme cold, nudity and extreme noise so that for him all these things are connected.
Baluchi sat down and slipped off the basketball sneakers he was wearing; he would follow the proceedings in socks. There weren’t enough chairs at Baluchi’s table, so Pradhan knelt beside him as they waited for the judge. Even if Pradhan and Baluchi had been speaking above a whisper, the few people (including me) watching from the gallery and those watching via satellite feed probably wouldn’t have been able to hear what they were saying. All that observers — generally press, family members and nongovernment-organization workers — can hear is the sound loud enough to be picked up by microphones and piped out on a 45-second delay. It’s an arrangement set up as a fail-safe, in case someone in the room says something classified. The judge would then have the better part of a minute to cut the feed before observers hear something they’re not supposed to.
At least, that’s how everyone thought it worked, until the proceedings took one of their strangest turns a few years ago. One of Mohammad’s defense lawyers was explaining why evidence from the C.I.A. black sites had to be preserved, when, according to press reports, a red light in the courtroom lit up, and the feed died. The judge, Col. James Pohl, was confused. He hadn’t stopped it. But he thought he was the only one who could stop it. An unseen entity — most suspect the C.I.A. — had gained access to the feed without anyone knowing. (Asked for comment, the C.I.A. referred me to the Department of Defense, which said the feed was cut “due to a concern at the time that classified information was potentially being divulged.”)
Other cases of suspected monitoring by unseen entities followed. A few months after the courtroom audiovisual incident, one of Pradhan’s colleagues, Cheryl Bormann, a lawyer for Walid bin Attash, Osama bin Laden’s former bodyguard and a suspected Sept. 11 planner, was meeting with her client when she noticed a small electronic module on the ceiling. The guard said it was a smoke detector. Bormann was curious, so she did an online search for the brand name she’d seen on the side of the unit, and it turned out to be an audio-surveillance device. Somebody was listening in on privileged attorney-client meetings. Or at least, someone had the ability to. But in yet another pretrial hearing, the chief of the guard force testified under oath that he thought it was a smoke detector. Which meant whoever installed the listening device did so without even the guards knowing. Army officers argued at the time, and a Department of Defense spokesman later told me, that the devices were holdovers from the rooms’ previous use and furthermore that the “capability” to monitor rooms “does not establish the fact of abuse or misuse of that capability.”
The defense claims even more peculiar things have happened. There was the F.B.I.’s trying to turn a security contractor working for the defense into an informant. And there was one of Baluchi’s co-defendants claiming to have recognized his appointed interpreter as a man present during his torture at one of the C.I.A. black sites. Pradhan now operates under the assumption that the F.B.I. and the C.I.A. are spying on the defense. She doesn’t think they do it to gather more intelligence but instead to give the prosecution a leg up and to control the dissemination of information about torture. She doesn’t have any evidence; it’s just the only explanation she finds plausible. “You don’t try and try and try and try again to interfere with the attorney-client relationship unless you’re going to get something out of it,” she says. “Our theory of the case has always been that the prosecution is working closely with the F.B.I. and the C.I.A.” The F.B.I. declined to comment, and the C.I.A. referred me to the prosecution. When asked, the prosecution acknowledged that it works closely with intelligence and law enforcement, but vehemently denied that its cooperation involves spying on the defense. Pradhan believes it anyway.
When the hearing finally began and Brig. Gen. Mark Martins, the lead prosecutor, got up to speak, Pradhan’s body language changed. She looked coiled and alert. “Good morning, your honor,” he said. “Present in the back of the courtroom, James Fitzgerald and Brianna Hearn of the Federal Bureau of Investigation.” Pradhan didn’t know why the F.B.I. sat there, but she says they’re always there. The judge asked each legal team which of their members were present and then recounted recent developments.
“The issue before me right now is whether or not we can continue with the case for these sessions scheduled for the next eight days in the absence of Ms. Bormann,” Judge Pohl said.
Bormann, the same lawyer whose inquiry about the “smoke detector” spurred hearings about attorney-client privilege, had fallen and broken her wrist just before the trip. She had to have emergency surgery and couldn’t come to Gitmo for the hearings. Because she’s the one “learned counsel,” for bin Attash, meaning the one lawyer experienced in capital murder cases, bin Attash now lacked proper representation.
To Pradhan, it wasn’t even a question: You can’t have hearings unless the defendants are properly represented. Especially in death-penalty cases and especially because the court would be hearing actual testimony that day. A family member of Sept. 11 victims, a man named Lee Hanson, was scheduled to give his deposition. He was 84 at the time, and the worry was that he might not be around to testify when the real trial begins, so he was afforded the opportunity in the name of preserving evidence. But the way Pradhan saw it, the court would be hearing testimony against an unrepresented defendant. She found the idea absurd; she found it absurd that they were even considering it.
Pohl explained why they had to come down to Gitmo at all, rather than calling it off before everyone got on the plane. “The only way to fairly litigate that issue would be to have a hearing, as we’re going to do right now, and hear from both sides and then go from there.” This, too, Pradhan found absurd: Pohl was asking for a hearing about how to proceed with pretrial-hearings, which, in turn, were about how to proceed with a trial. In other words, he was asking to litigate how to litigate about how to litigate.
One of Bormann’s colleagues, Edwin Perry, got up to explain why they ought not proceed without his boss, who was genuinely injured and could not be there. He argued that it would be, among other things, a violation of their client’s Sixth Amendment right to counsel if they were to proceed. The judge replied, to stifled laughter: “You’re telling me you can’t prepare these legal motions without her being present? You may be selling yourself short there, Mr. Perry. I’m just saying.”
Pradhan didn’t laugh. After a few hours of arguments, the judge made his decision: The deposition would go forward. The first testimony in the Sept. 11 trial would be given while one of the accused lacked a capital-qualified lawyer. Pradhan was stunned.
From the outside looking in, it’s not obvious why Pradhan even bothers. The amount of time and work it’s going to take before a jury will decide on guilt or innocence, let alone a sentence, if any of that even ever happens, is oppressive. “So damn far away,” she said, when I asked when she thought the actual trial might start. And when I asked if she was confident it would happen at all, she said, “I honestly have no idea.”
“The invention of a brand new legal system,” she says, “means we’ve spent years kicking the tires of the military commissions before we can drive it. We’ve barely started getting useful discovery; it’ll be another couple years at least before we can think about driving.”
She can argue why she believes Baluchi can beat the charges if it ever gets to that, but it’s still hard to see him ever walking free. It looks more and more like the prosecution and defense are all working impossibly long hours for men whose fates are, if forestalled, still inevitable. It’s hard to see how it isn’t, as Karen Greenberg said, just “perpetual detention.” In a sense, the lawyers and their clients are all trapped together, invested in a process that may not end until the accused find another way to die.
But what became clear over the time I spent with Pradhan is that there’s another reason she spends so much energy on him, and it goes beyond her belief that a favorable outcome is possible if they work hard enough. Pradhan believes the trial provides a kind of therapy. Not the kind of therapy a trial is ostensibly supposed to bring — the closure, the healing for victims — but instead healing for the accused.
Early on in our conversations, Pradhan began to articulate an idea I found surprising. “At this point,” she said, “Ammar has been in custody for 13 years. He has very real struggles stemming from his torture.” She has watched him participate in the case, and she has begun to see his work as an antidote for the learned helplessness taught to him by the C.I.A. It was a way to move toward something, to quiet the part of his mind where the heavy-metal music hasn’t stopped, the part that nudges him awake every 45 minutes, every night to prepare for more beatings. Working with Pradhan on his trial for mass murder is what she thinks keeps him going.
It’s why when she sits on the floor of the trailer at Camp Echo to prepare for a hearing, no matter how much the team has to get through, no matter how important tomorrow’s motions are, it’s the suspected terrorist who sets the agenda. And it’s why when she kneels beside him in the courtroom, even though she thinks her job — and maybe her career, and maybe her purpose in life — is to be a loud and unreserved voice for the voiceless, she tries, in those moments, to listen as much as she speaks.
But when she does, she finds that there’s always so much he wants to know about her before he’s ready to talk about his defense. When they meet at Camp Echo, Baluchi, without fail, asks about her family. Mostly, he wants to know about her daughter; Pradhan once took her there, to Gitmo, “to see where Mama works.” And though they couldn’t see Baluchi together, they went shopping for him together. That started a tradition: Pradhan brings him berries from the Navy Exchange, saying she’s delivering them on orders from the 5-year-old. Now whenever Pradhan walks in, Baluchi wants to know how the girl is doing, how her French is coming along. And it’s only afterward — after Pradhan tells Baluchi the latest about this friend he’ll never meet, sitting on a floor cluttered with McDonald’s cups and foam clamshells — that they finally get down to the endless task of keeping him alive.
December 24, 2017 at 4:44 pm
The human rights activist should be allowed to defend the accused and truth must be brought out