Unlike most of his colleagues, lawyer Walter Ruiz began his career in Guantánamo dressed in a military uniform. An American born in Colombia and trained in law at the University of Georgia, since 2009 he has led the defense of Mustafa Al Hawsawi, one of the five men facing the death penalty for his alleged participation in the September 11 attacks, in about 3,000 people died.
Ruiz has three decades of experience in state, federal and military courts, in which he has highlighted his successful defense of clients who avoided the death penalty. He entered the Armed Forces 28 years ago and arrived at Guantánamo as a Navy commander. After leading the case as a uniformed man for the first few years, he left active duty and is now a reservist. Today, already in civilian clothes, he receives La Vanguardia at the Camp Justice press office, in Guantánamo Bay.
His experience and his words give off the conviction that democracy involves the active defense of the civil rights of every human being, regardless of their origin and actions. And his client, who is accused of the lesser crimes of the five defendants – his alleged role was sending financial aid to the kidnappers – was tortured for three years in a clandestine CIA detention center after being captured in 2003. in Pakistan. These abuses continued after his transfer to Guantánamo, where he remains imprisoned indefinitely two decades later awaiting trial.
The delays are due, as he explains, to the fact that "this is the most political trial that exists in the United States," as well as the extensive litigation regarding access to classified information and valid evidence for the accusation, which comes in a large part of the confessions made by the five accused conditioned by the torture of their interrogators.
Are you conflicted about defending an alleged planner of the biggest attack in your country's history?
He never did. First, because I arrived as a soldier and I had no choice but to serve whatever I was assigned. Second, because it is a moral obligation. If I were a doctor in an emergency room and someone arrived who was injured, my obligation would not be to judge why he arrived and what he did, but to do my best to save his life. In my career, I have defended many people accused of terrible crimes, but your right to a defense is an essential pillar of democracy. At the same time, it's difficult, because I've seen a lot of the trials, I've met a lot of the families, I've heard about their suffering, and their losses and their pain.
After 15 years on the highest-level case in Guantanamo, do you think you have been able to adequately defend your client?
I don't think it was a fair defense. The Military Commissions Act of 2009, which governs this process, gives the defendant fewer protections than he would have in federal court. Additionally, we have limited access to the classified information on which much of the prosecution's evidence is based, as it must be approved by the government. Over the years, we have been able to see certain documents that we thought existed, but did not have, so we were litigating blindly and could only see a small window.
Additionally, in Guantánamo it is very difficult to have consistent communications with Al Hawsawi, which significantly influences our attorney-client relationship. And access to experts and witnesses is much more complicated than in the US, it is very difficult and takes time to get them to travel to the island. And, when they testify, the government can block some of the questions we want to ask them by invoking the National Security Privilege, against which the judge can do nothing. Furthermore, the fact that it is an isolated place, and that the process is not broadcast openly, makes it difficult for journalists to come to observe and be the eyes of the world, which is a necessary part of any justice system.
The purpose of taking this trial to Guantánamo is evident: to isolate the process and avoid federal laws and the Constitution. But does international law not apply either?
The government takes the position that the Constitution does not apply, but we continue to defend that it should. Additionally, we believe that certain federal laws are directly applicable, because the federal district of Washington, the District of Columbia, is theoretically the next level of appeal for the military court. Regarding international law, since the prosecution considers that this is a court of war, we use the Geneva Convention, specifically common article 3. But, in our defense, we are normally limited to using the text of the Military Commissions Law.
For it to be a court of war, there must first, logically, be a war. However, on September 11, 2001, the US had not yet declared it. What does the government rely on?
The US position is that we were indeed in a state of war, although it had not been declared, and there was authorization to use military force. To defend their position, they cite for example the attacks on the Kenyan embassy (1998) and the attack on the USS Cole (2000). We take the opposite position, so that is part of the legal conflict.
When President George Bush declared the War on Terror, he also authorized the use of "enhanced interrogation techniques," which has received condemnation from the international community. Twenty years later, is torture still valid?
Although the government continues to use that euphemism to try to minimize what happened, we always want to make it clear that it was torture. In the terms in which it occurred between 2003 and 2006, they are no longer present today. President Barack Obama already admitted that this had been torture, and it has not been allowed for years. But what exists now is a different form of torture, because they continue to be detained indefinitely and without trial, which is clear physical and psychological abuse. The UN special rapporteur, Fionnuala Ní Aoláin, confirmed this in a report after her visit to the prison last year, in which she made strong criticisms of its functioning.
What tortures has your client, Al Hawsawi, detailed to you?
There are certain aspects that I can comment on, because they have been declassified, but not others, which leave a darkness about what happened. In his case, between 2003 and 2004, he was tortured in one of the CIA's secret prisons. They hung him with chains from the ceiling, naked and in extremely cold temperatures. They poured ice water on him and drowned him. Also, in Guantánamo, they threw him against the walls, deprived him of sleep and did not let him sleep for more than four days in a row. And they would often put him in a fairly small box, like a coffin, in solitary confinement, and keep him there like an animal. All these forms of torture, along with others that I cannot explain, were done simultaneously, and have obviously contributed to a state of mental and physical deterioration.
Last Monday, at the beginning of the 50th pretrial hearing, we saw him limping as he entered the court and when he arrived they left him a cushion to sit on. During the session, he waived his right to be present. Are they consequences of the torture he suffered?
We can't explain exactly what happened, because it's still classified. But we believe that the correct term to refer to it is sexual abuse, understood as penetration of the rectum without a medical reason or without consent. As a result, Al Hawsawi has had quite a few problems in the rectal area. He has had operations to reconstruct part of his anus and over the years he has had a lot of difficulty sitting up and having bowel movements. When he goes to the bathroom, it is a very painful process for him. He also has many problems with his neck vertebrae, which come from the way he was thrown against walls and other forms of torture. In addition to sleeping and hearing problems, he has trouble hearing. This is a consequence of the fact that they used very loud music, such as hard rock, to weaken them and put them in a state where they could be exploited for information.
There are classified and also declassified torture. To what extent can they use evidence that they occurred in their legal strategy?
Two ways. First of all, to try to exclude evidence against him, that is, all the information he gave to the FBI conditionally due to torture. We defend that this evidence cannot be used in a trial because, in our system, the information provided by the subject has to be voluntary. The second way is to mitigate the penalty. If he is convicted, we will use the treatment and torture he received to ask the military jury to lower the sentence because he has already been punished in many ways, and could avoid the death penalty.
He seems optimistic that one day the trial will begin, after more than a decade in the pretrial phase. To what do you attribute so many years of delay?
In addition to the difficulties inherent to Guantanamo, access to classified information and litigation over valid evidence is undoubtedly being delayed so much because it is the most political case that exists in the United States.
The defendants were captured between 2002 and 2003, and did not appear in court until 2008. Then, they had no defense lawyers or any type of legal assistance. Those six years were pure politics. When Obama was elected, he stopped it in order to take it to a federal court in New York, which triggered a tough battle with the Republicans, who did not want to bring the case to the US because they claimed that they were very dangerous criminals. So in 2012 he returned to Guantánamo. More recently, when we were trying to reach an agreement with the government to resolve the case outside of a trial, the Republicans put a lot of pressure on the president, who had to come out and say that he was not going to support a negotiated resolution.
