Guantanamo Defense Lawyer Resigns, Says U.S. Case Is 'Stacked'

Aug 31, 2014
Originally published on August 31, 2014 5:18 pm

Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the Sept. 11 attacks, is facing a military commission at Guantanamo Bay and potentially the death penalty. He was captured in 2003 but his case still hasn't gone to trial.

Last week, Maj. Jason Wright — one of the lawyers defending Mohammed — resigned from the Army. He has accused the U.S. government of "abhorrent leadership" on human rights and due process guarantees and says it is crafting a "show trial."

Wright joined the military in 2005. He served 15 months in Iraq during the surge and has worked as a Judge Advocate. For nearly three years, he served on Mohammed's defense team.

Wright formally resigned on Aug. 26. Earlier this year, the Army had instructed him to leave the team in order to complete a graduate course that was required with his promotion from Captain to Major. He refused the order; he says it would have been unethical for him to have followed it.

Asking For Trust, Wearing The Captors' Uniform

Wright tells NPR's Arun Rath that it's hard to gain any client's trust, but it was especially hard with Mohammed. His former client is one of six "high-value detainees" being prosecuted at Guantanamo for offenses that could carry the death penalty.

"All six of these men have been tortured by the U.S. government," he says.

Wright says Mohammed in particular has faced a level of torture "beyond comprehension." He says his client was waterboarded by the CIA 183 times and subjected to over a week of sleep deprivation; there were threats that his family would be killed. "And those are just the declassified facts that I'm able to actually speak about," Wright says.

Given that treatment, Wright knew it would be hard for Mohammed to trust him.

"You show up several years later and you say, 'I'm from the U.S. government and I'm here to help you' ... and you add on the complexity that I wear the same uniform as the guards," he says. "It's very challenging in any situation to develop trust and confidence with a client. But when you add on that torture paradigm, it's all the more difficult."

Wright wasn't allowed to discuss too many details of the detainee abuse in court. He references a recent Foreign Policy article by Laura Pitter, of Human Rights Watch, about the notion of "original sin" and how it's complicated terrorism cases.

"The 'original sin' being the fact that the CIA tortured these men and that they've gone to extraordinary lengths to try to keep that completely hidden from public view," Wright says. "So the statute that Congress passed has a number of protections to ensure that no information about the U.S. torture program will ever come out."

Fighting Government's Influence

He says there are additional constraints on the defense teams that have made it hard to operate — including allegations of listening devices disguised as smoke detectors in attorney-client meeting rooms.

"So not only do you have statutory design, but you actually have, in practice, a very large effort to try to ensure that no ensure that no information about torture is ever made known in public," he says.

The hardest thing to deal with as a defense layer, he says, is fighting the government's influence.

"The U.S. government is trying to call this a fair trial, while stacking the deck so much against the defense and the accused that it can hardly be called a fair trial in any system in the world," he says.

The larger strategic implication for the government, he says, is that it gives a license for the rest of the world to torture and "set up secret military courts outside of public review and outside of due process.

"Leave aside our constitutional principles — which we should try to uphold irrespective of who the defendant may be — the Constitution has been completely stepped on throughout this entire process," he says. "That's a separate and distinct issue of how the U.S. now has shown just abhorrent leadership when it comes to actually following essential, fundamental human rights and due-process guarantees."

Wright says it doesn't matter what happens at trial; the government likely won't release the defendants even if they are acquitted. He contrasts it with the Nuremberg trials after World War II, where the chief prosecutor promised Nazi war criminals would be set free if they weren't found guilty.

"We have a system where if someone's acquitted, they will not be set free," he says. "That is actually the very definition of a show trial."

Refusing Orders

Earlier this year, the Army instructed Wright to leave the team in order to complete a required graduate course with his promotion from Captain to Major. The course can be deferred for a variety of reasons; Wright had already deferred once. But his latest request for a deferral was denied without explanation.

"So really I only had two choices," he says. "I could either accept and voluntarily leave my own self from the case and my obligations to my client. Or I could refuse the orders."

He decided would be an ethical violation to abandon his client voluntarily, so he refused the orders. "And when you refuse the orders, you have to resign from the Army," he says.

Wright served his last day on Mohammed's defense team; he formally resigned from the Army on Aug. 26.

He believes his departure will be very disruptive to the Mohammed case and potentially the other defense teams.

"Here you have government attorneys who tell a defendant, 'I'm your attorney, I'm here to help you, and I'm going to be here 'til the end.' And half-way through this process, the U.S. government — the same government that tortures you, the same government that's trying to kill you, the same government that provides the public defender — now gets to control when defense attorneys come and go," he says.

Mohammed's legal saga has stretched out for years — he was captured in 2003 but the government didn't bring charges until 2012. Wright says he can't speculate how long it will take for a trial to start.

Pentagon Responds

NPR asked the Pentagon to comment on Wright's interview. A spokesman from the Army wrote:

"The Judge Advocate General denied the second deferral request because a suitable and competent military defense attorney replacement was available, Major Wright was not the lead or sole counsel, and it ensured Major Wright remained professionally competent and competitive for promotion."

And a spokesman for the military commissions also disputes Wright's characterization of the commission, including his allegations of planted listening devices. He wrote:

"The prosecution has never listened to a single attorney-client communication, and no entity of the U.S. government is listening to, monitoring, or recording attorney-client communications at the detention facility in Guantanamo Bay."

However, there are ongoing investigations into allegations that the FBI attempted to make a member of a detainee's legal team into a confidential informant.

The government also disputes Wright's claim that the proceedings amount to a show trial, saying, "The on-going detention of Khalid Sheikh Mohammed is fully consistent with the law of armed conflict, and that detention is reviewable by petition for habeas corpus in United States federal civilian court."

They also point to the convicted detainees who have served out their sentences and returned to their home countries.

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ARUN RATH, HOST:

Army Major Jason Wright joined the U.S. military in 2005. He served 15 months in Iraq during the surge and has worked as a judge advocate general. In 2011, the military appointed him to the defense team for one of the highest profile defendants in the world - Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the 9-11 attacks.

Mohammed is facing a military commission at Guantanamo Bay. If convicted, he could be executed. This past week, Major Wright resigned from the army and left the defense team. The army pulled him off the Mohammed case in order to complete a required graduate course - more on that in a moment. But when I spoke to Wright this week, I asked him how he could effectively represent a client like Mohammed and if it's possible gain his trust.

JASON WRIGHT: Well, I think it's hard to gain any client's trust, but if you add on the complexities when it comes to the so-called high-value detainees - now there's six high-value detainees who are currently being prosecuted for death penalty offenses. All six of these men have been tortured by the U.S. government.

Now, with respect to Mr. Mohammed, you're looking at a level of torture that is just beyond comprehension. He was water-boarded by the CIA 183 times. He was subjected to over a week of sleep deprivation. There were threats to kill his family. And those were just the declassified facts that I'm able to actually speak about. When you show up several years later, and you say, I'm from the U.S. government, and I'm here to help you, you add on the complicity that I wear the same uniform as the guards. So it's very challenging in any situation to develop a trusting confidence with the client, but when you add on that torture paradigm, it's all the more difficult.

RATH: And when it comes to the detainee abuse that you're talking about, which the defense has made fairly central in the preceding, you're sort of restrained in how you can talk about that in court, right?

WRIGHT: We are. We are. I read an interesting article today by Laura Pitter.

RATH: From Human Rights Watch.

WRIGHT: Human Rights Watch - and she wrote it in Foreign Policy. And it was an interesting phrase - that the entire military commissions process has been affected by the original sin. And the original sin being the fact that the CIA tortured these men and that they've gone to extraordinary lengths to try to keep that completely hidden from public view. So the statute that Congress passed has a number of protections to ensure that no information about the U.S. total torture program will ever come out.

You out onto that how the commissions have actually operated in practice, and there are a number of constraints that have been applied upon the defense and the defense teams throughout this process. We have allegations that have been established that there were listening devices in our attorney-client meeting rooms. There were disguised smoke detectors that were, in fact, listening devices. You have the FBI, as of spring this year, trying to infiltrate in one of our defense teams.

So not only do you have a statutory design, but you actually have in practice a very large effort to try to ensure that no information about torture is ever made known in public. So it really has been an original sin that has affected the entire course of the proceedings.

RATH: And as you say, there's been a whole laundry list of complaints from the defense - the defense teams for Khalid Sheikh Mohammed and the codefendants. What's been the hardest part of that for you, as a defense lawyer, to deal with?

WRIGHT: I think the hardest part to deal with is just knowing that the U.S. government is trying to call this a fair trial while stacking the deck so much against the defense and the accused that it can hardly be called a fair trial in any system in the world.

But I think if we take a step back and think about the larger strategic implications of this - is that the U.S. is giving a license for the rest of the world to torture. They're giving a license to other countries to set up secret military courts outside of public review and outside of due process. Leave aside our constitutional principles, which we should try to uphold irrespective of who the defendant may be. And the Constitution has been completely stepped on throughout this entire process. That's a separate and distinct issue of how the U.S. now has shown just abhorrent leadership when it comes to actually following essential fundamental human rights and due process guarantees.

RATH: Well, what you've described sounds kind of like a show trial.

WRIGHT: I think that's a fair description. And at the end of the day, if there is a trial for the 9-11 codefendants, the U.S. government has essentially stated that under no circumstances would they actually be released. So in other words, if there was a not guilty verdict, the U.S. government still would not release them.

Contrast this with Nuremberg, where Justice Jackson, the chief prosecutor at the time, was asked that question. He said, absolutely. If these Nazi war criminals are acquitted, they will be set free. We have a system where if someone's acquitted, they will not be set free. That is actually the very definition of a show trial.

RATH: Jason, how did you find out you were being taken off of this case?

WRIGHT: Well, I'm a judge advocate, and I've been in the Army, now, for nine years. Or at least, I was in the Army for nine years. Whenever a judge advocate in the Army is promoted from captain to major, they have to attend a one-year graduate course. Now, this graduate course can be deferred for operational or personal reasons. And according to policy, there's no limit to the number of deferrals that you can request and receive.

So I came out on the list to attend the graduate course last year. And I requested a deferral for one year, and that was granted. I came out on the list again this year, and again, I requested a deferral. And this time it was denied without explanation. So really, I only had two choices. I could either accept and voluntarily leave my own self from the case and my obligations to my client, or I could refuse the orders. And in this instance, I decided that it would be an ethical violation for me to voluntarily abandon a capitally charged client in active litigation, so I declined the orders. I refused the orders. And when you refuse the orders, you have to resign from the Army.

RATH: How is your departure going to affect the Khalid Sheikh Mohammed defense?

WRIGHT: Well, I believe it's going to be very disrupting. Here, you have government attorneys who tell a defendant, I'm your attorney. I'm here to help you, and I'm going to be here till the end. And halfway through this process, the U.S. government - the same government that tortures you, the same government that's trying to kill you, the same government that provides the public defender - now gets to control when defense attorneys come and go. So I think it's going to have a demonstrable effect on the outcome, at the very least, of the defense team for Mr. Mohammed and perhaps the other codefendants, as well, to know that the U.S. government is to continue to control all aspects of their lives, even their own defense for their very own lives.

RATH: Former army major Jason Wright. We asked the Pentagon to comment on Wright's interview with us. A spokesman for the army told us that, quote, "the judge advocate general denied the second deferral request because a suitable and competent military defense attorney replacement was available. Major Wright was not the leader sole council. And it ensured Major Wright remain professionally competent and competitive for promotion," unquote.

A spokesman for the military commissions also disputes Major Wright's characterization of the commission, saying, quote, "the prosecution has never listened to a single attorney-client communication, and no entity of the U.S. government is listening to, monitoring or recording attorney-client communications at the detention facility in Guantanamo Bay," unquote.

There are ongoing investigations into allegations that the FBI attempted to turn a member of a detainee's legal team into a confidential informant. The government also disputes Wright's claim that the proceedings amount to a show trial saying, quote, "the ongoing detention of Khalid Sheikh Mohammed is fully consistent with the law of armed conflict, and that detention is reviewable by petition for habeas corpus in United States federal civilian court," unquote. They also point to the convicted detainees who have served out their sentences and returned to their home countries. You can read the full statements from the military on our website, npr.org. Transcript provided by NPR, Copyright NPR.