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Guantánamo Has Cost Billions; Whistleblower Alleges 'Gross' Waste

Sep 11, 2019
Originally published on September 14, 2019 10:18 am

The U.S. military court and prison at Guantánamo Bay, Cuba, have cost more than $6 billion to operate since opening nearly 18 years ago and still churn through more than $380 million a year despite housing only 40 prisoners today.

Included in that amount are taxpayer-funded charter planes often flying just a few passengers to and from the island; hundreds of thousands of dollars' worth of government electronic devices intentionally destroyed each year due to spills of classified information; some Pentagon-funded defense attorneys billing about half-a-million dollars a year; and total legal costs of nearly $60 million annually even though Guantánamo has had only one finalized conviction.

Criticism of that spending comes even from inside Guantánamo. A former top attorney there has filed a federal whistleblower complaint alleging "gross financial waste" and "gross mismanagement," NPR has learned.

Retired Air Force Col. Gary Brown also claims that he and the former head of the military court were fired because they were negotiating a controversial cost-saving proposal with defense lawyers: allow Guantánamo prisoners — including Khalid Sheikh Mohammed and his four co-defendants in the Sept. 11, 2001, terrorist attacks — to plead guilty in exchange for life in prison rather than face the death penalty. Such plea deals, Brown says, "would stop wasting resources."

"My two words to summarize my time at military commissions was 'Wait — what?' " said Brown, who was legal adviser to the head of Guantánamo's military commissions from April 2017 until both of them were fired 10 months later. "At least a couple of times a week there was an instance where someone would tell me some expense we had or some individual we were paying for, and I would just have to stop in my tracks and say, 'Wait — what? How can that possibly be?' Many of them involved unnecessary expenditures or waste of money."

Many attorneys and other officials who have worked there openly condemn the spending.

"It's a horrible waste of money. It's a catastrophic waste of money," said Michel Paradis, a Guantánamo defense attorney for Abd al-Rahim al-Nashiri, the alleged mastermind of the bombing of the USS Cole naval warship. "No matter if you want to see all of these guys shot in the street or whether or not you think Guantánamo itself is an aberration that should have closed yesterday — whatever your goal is, the military commissions have failed to achieve that goal."

"There have been billions of dollars spent on Guantánamo that were totally unnecessary," said Morris Davis, Guantánamo's chief prosecutor from 2005 to 2007. Davis says he quit when he felt pressured by his superiors to use evidence obtained through torture, and he calls the military commissions "an overwhelming failure."

When NPR asked in April for the annual cost of Guantánamo's military court and prison, the Defense Department initially responded with a figure of $180 million a year. Three months later, it revised that number to $380 million a year. That does not include the $60 million annual expense of operating Guantánamo's naval base or the salaries of military personnel, including the 1,800 guards overseeing the detention center's prisoners.

Add the Pentagon's updated tallies to historical figures it has given Congress, and the total cost of Guantánamo's court and prison has exceeded $6 billion since 2002.

Nearly 800 detainees have passed through Guantánamo since prisoners began arriving there in 2002, and 40 people are still confined there. Some have been held for nearly 18 years without being charged. Only one conviction has been finalized, and Guantánamo's legal cases have been virtually deadlocked for years.

Yet the court and prison continue to spend what Brown calls an "eye-popping" amount each year on construction, travel, housing, vehicles, computer systems, linguists, translators, investigators, expert witnesses, case analysts, paralegals, court reporters, various types of contractors and hundreds of attorneys.

Brown said it wasn't just the spending that shocked him. He also questions whether Guantánamo prosecutors can win death penalty convictions at trial, because so much evidence is tainted by torture. He notes that if trials do happen, the appeals process is expected to last another 10 to 15 years, incurring costs of at least another $1.5 billion. And the government argues that even if the defendants are found not guilty at trial, it can continue to keep them imprisoned indefinitely.

There have been billions of dollars spent on Guantánamo that were totally unnecessary. - Morris Davis, Guantánamo's chief prosecutor from 2005 to 2007

Because of the time, expense and possible futility of pursuing death penalty convictions, Brown said he and Harvey Rishikof, who was the "convening authority" of the military commissions, thought a different solution was necessary.

"They haven't been successful. They've stalled. They're incredibly expensive," Brown said. "Instead, wouldn't it be better if we just said, 'You know what? They didn't work this time.' "

So he and Rishikof had begun preliminary settlement negotiations with the Guantánamo prisoners facing the death penalty. That would have saved time and money, "and certainly it would've brought closure to the victims' family members, which was our primary concern," Brown added, "and it would have potentially brought some closure to the wound that Guantánamo is to U.S. national security."

Each lead lawyer for the six Guantánamo prisoners facing the death penalty confirmed to NPR that Rishikof and Brown had approached them about the possibility of settling. But in February 2018 the two men were fired before plea deals could be reached.

A sign is posted in front of the war crimes court at the U.S. naval base at Guantánamo Bay, Cuba, on Oct. 14, 2012.
Michelle Shepard / Bloomberg via Getty Images

"We were called under false pretenses to a meeting in the Pentagon and then handed letters with no explanation," Brown said, "and our credentials were seized and we were escorted out of the building."

The Pentagon says Rishikof and Brown were fired not because they were pursuing plea agreements, but for not following the proper chain of command and their "needlessly disruptive and divisive manner." Reached by NPR, Rishikof would not comment for this story.

The United States Office of Special Counsel, where Brown filed his whistleblower complaint, also said it had no comment.

Cheryl Bormann, a Guantánamo attorney representing Walid bin Attash, who is accused of helping train some of the Sept. 11 hijackers, says she was considering Rishikof and Brown's proposal as an alternative to more years of expensive litigation.

"This is ridiculous. There's no reason for it," Bormann said of the military commission process. "We could secure these men until they died at much less cost and make sure that nobody was ever hurt again. And we won't do it. And I don't understand why."

Guantánamo attorney Walter Ruiz represents Mustafa Ahmad al-Hawsawi, who is accused of helping finance the Sept. 11 hijackers, and he calls the military court "the most dysfunctional criminal justice system in America and most likely the most dysfunctional on Earth."

Asked if he believes Brown and Rishikof were fired for trying to settle cases, Ruiz said, "I think it's pretty clear."

David Nevin, who until this week had been the lead lawyer for Khalid Sheikh Mohammed for several years, said that if the death penalty came off the table, "We'd be done. We would've been done a long time ago."

Nevin is one of numerous defense lawyers who for years have been calling the military commissions a "farce," "legal theater" and a "show trial."

Metal cuffs lie on the floor of a medical facility at Guantánamo Bay, Cuba, in October 2018.
Maren Hennemuth / picture alliance via Getty Images

"Because even if they are acquitted, they won't be released, and if they're convicted and sentenced to death, the odds are that they will die in prison before they can ever be executed," Nevin said. "So it is an exercise in futility and ... it's an utter waste of time and money."

No current Guantánamo prosecutors will speak publicly with the media, and several of them declined multiple interview requests from NPR. But at least a half-dozen former prosecutors have publicly or privately criticized Guantánamo's military court, including former chief Guantánamo prosecutor Davis.

"October 3 will be the 12-year anniversary of the day I resigned, and if you look at what's happened over the last 12 years, I think you could sum it up as 'not much,'" said Davis. "What I wish they would have done was to move these cases into federal court, where they would have been wrapped up years ago and saved the taxpayers a lot of money."

The Pentagon would not supply a detailed spending breakdown to NPR because it said that could expose "sensitive information," and breakdowns it has given Congress have contained errors.

But included in the spending that many Guantánamo lawyers described to NPR as wasteful are hundreds of thousands of dollars' worth of government devices destroyed each year due to "spillage," which in military terminology means classified information that's accidentally disclosed. That can happen when information shared via email is later labeled as "classified," causing a retroactive spill. Those costs are part of the $7.5 million spent annually at Guantánamo on technology.

"On multiple occasions I've had maybe four or five laptops, multiple Blackberries and iPhones that are government-owned, literally destroyed," said Michael Garber, a case analyst on one of Guantánamo's defense teams.

Guantánamo's island location off the southern tip of the United States also drives up costs. Lawyers, judges, contractors, and other court employees must fly to Guantánamo any time they want to attend a legal hearing, or any time they want to talk with a prisoner, since attorneys are not permitted to speak with the inmates by telephone.

The main gate of the prison at the U.S. naval base at Guantánamo Bay, Cuba, on Oct. 16, 2018.
Sylvie Lanteaume / AFP/Getty Images

To get there by air, they must travel on taxpayer-funded, government-chartered flights – often Boeing 737s operated by commercial airlines that bid for the routes – that cost $185,000 roundtrip and often carry only a few passengers. Total Guantánamo travel costs about $6.5 million a year.

"A former colleague told me one time he was on a flight with two people," said Guantánamo defense lawyer Wyatt Feeler. "That's the fewest I've heard. I've certainly been on flights where the vast majority of seats were empty."

There are also hundreds of generators, air conditioners and dehumidifiers throughout Guantánamo, all working to keep mold, iguanas and banana rats out of office space and lodging facilities in the intense Caribbean heat. Their pervasive hum is emblematic of the financial challenge of trying to run an American-style court system in a tropical overseas location.

The combined cost of Guantánamo's prosecutors and defense teams is nearly $60 million a year. That includes the expense of "learned counsel," which are Pentagon-paid private lawyers specializing in death penalty cases. Every Guantánamo prisoner facing the death penalty is entitled to such a specialist. Two military court judges have issued orders prohibiting disclosure of the fees paid to those attorneys. But according to a document obtained by NPR, some of them bill about $500,000 a year.

"Our job is to defend them, and I don't care what the cost is," said Marine Brigadier General John Baker, chief defense counsel for the Military Commissions Defense Organization, which is basically the public defender agency for Guantánamo.

"This is a country that was founded on the concept of the rule of law and is held out across the world as the place where justice is done," he said. "That's part of the reason we keep plugging away and fighting to make sure that at every turn we can make it as fair as it can be."

Baker added: "People need to know the travesty that is Gitmo. It's beyond comprehension that it is 2019 and people that were accused of crimes that occurred in 2001, and captured in 2003, are nowhere near trial."

A U.S. Army soldier stands near a tent used by the defense teams for storage at Camp Justice on April 18, 2019, in Guantánamo Bay, Cuba.
Alex Brandon / AP

Last month, a military court judge — Air Force Col. Shane Cohen — set Jan. 11, 2021, as the start date for the Sept. 11-related trial, although he cautioned that several other deadlines must be met for the trial to begin then. Those include developing plans for how to provide enough food, housing and transportation for the crowds that would arrive on the island if a trial were held there.

Meanwhile, expenses at Guantánamo continue to mount as the military court is basically stuck in place. For years, lawyers have been fighting over basic legal questions like whether the U.S. Constitution applies to the war court.

Some lawyers say the cases are progressing toward trial, even if imperceptibly slowly. But the court suffered a setback in April, when a federal appeals court threw out more than two years of one military court judge's decisions after it was revealed that he had been pursuing an immigration judge job with the Justice Department. This was at the same time he was overseeing a Guantánamo case being prosecuted by the Justice Department. That conflict of interest resulted in his Guantánamo rulings dating back to November 2015 being erased.

"We used to say that it feels like they're going backwards," said Karen Greenberg, who is the director of the Center on National Security at Fordham University's School of Law and writes often about Guantánamo. "Now they actually are going backwards."

Such complaints are not new. Five years ago, the head of the military court at the time complained that the process was going too slowly and noted that hearings had been held only 33 days in all of 2014. That cost taxpayers the equivalent of $700,000 an hour.

Guantánamo's judges are exasperated, too. Last year, according to a hearing transcript, one of them said that unless the status quo changes, "We're going to continue to spin our wheels and go nowhere." A new judge who arrived in June is trying to break the legal logjam, saying at a July hearing attended by NPR that "I am trying to put order to a process that I did not create."

The sun sets on the U.S. detention center at Guantánamo Bay, Cuba, on Feb. 10, 2017.
Emily Michot/Miami Herald / Tribune News Service via Getty

At that same hearing, when defense lawyers insisted that Guantánamo's shortage of housing and other amenities makes it physically unready for a trial, a lead prosecutor told the judge the only way to jumpstart the process is to spend more money.

The case of al-Nashiri, the accused USS Cole bomber, has been paused for nearly two years, ever since three of his defense lawyers quit after finding listening devices in an attorney-client meeting room.

Another time, a defense team discovered that the FBI had turned one of its paralegals into an informant. Once, a prisoner recognized his Guantánamo interpreter as having been at the secret CIA site where he was tortured years before.

"The degrees and permutation of chaos in these military commission proceedings is something that's just unimaginable," said Paradis, one of al-Nashiri's remaining lawyers. "It's something you couldn't make up unless you were the writers for the show Veep or something like that."

Still, Paradis predicts that Guantánamo will continue to exist at its current pace and expense for decades.

"They brought a new cell down that is wheelchair accessible, so you're going to have the most expensive, most notorious old-folks home in the Caribbean that you've ever seen," he said.

Glenn Morgan of Belmont, Mass., lost his father, Richard Morgan, on Sept. 11, 2001, in the collapse of the World Trade Center buildings, and he has traveled twice to Guantánamo to watch the military court process. He says he hopes the five men accused in the Sept. 11 attacks will be executed, but says he would accept plea deals as a resolution after so many years of little progress.

"I'm not saying I advocate for it, but when someone in your family is killed like this and your mom is left to fight cancer on her own without her husband, your definition of satisfied is modified," he said. "So I would be satisfied because there would be conclusion. I don't want there to be no conclusion."

An NPR investigation finds that the military court and prison at Guantánamo Bay, Cuba, have cost taxpayers billions of dollars, with billions more expected. An unstaffed tower is shown in an abandoned portion of Guantánamo's Detention Center Zone.
Emily Michot / Miami Herald/Tribune News Service via Getty Images

Yet a lack of conclusion is what Morgan is bracing himself for.

"My prediction," he added, "is the prisoners will die before they are found guilty," an outcome he said would leave him feeling cheated.

"They would have not have been found guilty," he said. "They'll never have been found guilty of murder, and they killed over 2,900 people. And so that would be an injustice."

Editor's note: Some photographs that appear in this story have been reviewed by the U.S. military.

Copyright 2019 NPR. To see more, visit https://www.npr.org.

MARY LOUISE KELLY, HOST:

On this anniversary of the worst terrorist attack in American history, the men accused of plotting 9/11 are awaiting a trial that is set to begin in January 2021. But the place they're being held as they await that trial, the detention facility at Guantanamo Bay, is under new scrutiny.

AILSA CHANG, HOST:

That is because a former top attorney there has filed a federal whistleblower complaint. He's alleging a gross waste of funds and gross mismanagement. He spoke exclusively to NPR's Sacha Pfeiffer, who has spent several months breaking down costs at Guantanamo and found billions spent so far and billions more expected.

SACHA PFEIFFER, BYLINE: First, the whistleblower.

GARY BROWN: My two words to summarize my time at military commissions was wait, what?

PFEIFFER: That's retired Air Force Col. Gary Brown. He was legal adviser to the former head of Guantanamo's military court. This is the first time he's talked publicly about his allegations.

BROWN: At least a couple of times a week, there was an instance where someone would tell me some expense we had or some individual we were paying for. And then I would just have to stop in my tracks and say wait, what? How can that possibly be? Many of them involved unnecessary expenditures or waste of money.

PFEIFFER: In April, NPR asked the Pentagon for the cost of Guantanamo's military court and prison. First, it said $180 million a year. Three months later, it amended that figure to $380 million. That does not include the expense of Guantanamo's naval base. And several Guantanamo officials told NPR any Pentagon tally is probably an underestimate because it doesn't include resources from other government agencies or service member salaries, like the 1,800 guards for Guantanamo's 40 remaining prisoners.

Since 2002, Guantanamo has cost U.S. taxpayers at least $6 billion. Some of that has paid for government charter planes flying just a few passengers to and from the island, hundreds of thousands of dollars of government devices intentionally destroyed each year due to spills of classified information, some Pentagon-funded defense attorneys billing about half a million dollars a year, and total legal costs of nearly $60 million annually even though Guantanamo has had only one finalized conviction.

BROWN: I think it's a horrible waste of money. It's a catastrophic waste of money.

PFEIFFER: Michel Paradis is a lawyer for Guantanamo prisoner Abd al-Rahim al-Nashiri, who is accused of orchestrating the USS Cole warship bombing.

MICHEL PARADIS: No matter if you want to see all of these guys shot in the street or whether or not you think Guantanamo itself is an aberration that should have closed, the only thing they've succeeded in doing is spending a tremendous amount of money, a shocking amount of money.

PFEIFFER: Paradis says there's another problem. Prosecutors may be unable to get convictions because so much evidence is tainted by torture. If trials do result in convictions, appeals are expected to take another 15 years and cost at least another $1 1/2 billion. And if the prisoners are found not guilty at trial, the government has said in multiple documents reviewed by NPR that it has the right to keep them imprisoned anyway.

MORRIS DAVIS: There have been billions of dollars spent on Guantanamo that were totally unnecessary.

PFEIFFER: Morris Davis was Guantanamo's chief prosecutor from 2005 to 2007. He quit when he felt pressured by his superiors to use evidence obtained through torture. He calls the military commissions, quote, "an overwhelming failure."

DAVIS: What I wish they would have done is to move these cases into federal court where they would have been wrapped up years ago and saved the taxpayers a lot of money.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PILOT: Ladies and gentlemen, welcome to Guantanamo. Captain...

PFEIFFER: I flew to Guantanamo in July to see where that money is going. The Defense Department restricted what I could record, but I was permitted to tape in parts of the tent camp where journalists stay - 60 large tents set on a former runway in the intense Caribbean heat, most of them heavily chilled and dehumidified to fend off mold and insects.

Based on the week I've spent here, these generators blow 24/7. So the tents are kept air conditioned around the clock, even though many of them are empty all the time.

That constant hum is emblematic of the financial challenge of trying to run an American-style court system on a tropical island hundreds of miles from the U.S.

WYATT FEELER: To me, the biggest thing about this case that saps resources is the choice to hold it in Guantanamo Bay.

PFEIFFER: Wyatt Feeler is a Guantanamo defense attorney. Like all Guantanamo lawyers, he has to fly there anytime there's a hearing or anytime he wants to talk with his client since he's not allowed to contact the prisoners by phone.

FEELER: I have colleagues who have been on a flight, chartered flight down here with only a handful of people on the entire plane because it was scheduled, and people need to come down to see their client or to do other business. And here's a flight the government is paying for that has a handful of people on it.

PFEIFFER: How few?

FEELER: A former colleague told me one time he was on a flight with two people. That's the fewest I've heard. I've certainly been on flights where the vast majority of seats were empty.

PFEIFFER: And how big was that plane?

FEELER: You know, 737, sometimes even bigger.

PFEIFFER: Those charter flights cost $180,000 dollars roundtrip. Total Guantanamo travel is about $6 1/2 million a year. Technology is $7 1/2 million. That includes hundreds of thousands of dollars worth of hard drives, laptops and cell phones intentionally destroyed each year after security breaches.

The Pentagon would not supply a detailed spending breakdown because it says that could expose, quote, "sensitive information." The Pentagon does say it spends $56 million annually for prosecutors and defense teams. Guantanamo prisoners facing the death penalty are entitled to lawyers specializing in death penalty cases. Those are private attorneys paid by the Pentagon. Two military court judges have issued orders prohibiting disclosure of the fees paid to those attorneys. But according to a document obtained by NPR, their billing can be about $500,000 a year.

JOHN BAKER: Our job is to defend them. And I don't care what the cost is.

PFEIFFER: Marine Brig. Gen. John Baker is chief defense counsel for the Military Commissions Defense Organization. That's basically the public defender agency for Guantanamo.

BAKER: This is a country that was founded on the concept of the rule of law and is held out across the world as the place where justice is done. That's part of the reason we keep plugging away and fighting to make sure that at every turn, we can make it as fair as it can be.

PFEIFFER: The defense teams include translators, linguists, investigators, case analysts and expert witnesses. Prosecutors have similar expenses. And there's the cost of construction, housing, vehicles and more until Guantanamo's stalled legal cases somehow resolve.

Five years ago, a former head of the military court said the process was going too slowly. He calculated that hearings were held only 33 days in 2014, costing taxpayers more than $700,000 an hour.

KAREN GREENBERG: It's not just the money.

PFEIFFER: Karen Greenberg is director of the Center on National Security at Fordham University School of Law and writes often about Guantanamo.

GREENBERG: It's the time and effort of these prosecutors and this never-ending legal case that these lawyers have been put into. And you watch these lawyers get older decade by decade.

PFEIFFER: Over the years, attorneys on both sides have filed thousands of pages of legal motions on complicated topics, like the definition of war. They're also fighting over basic legal questions, like whether the U.S. Constitution applies to the military court. Some of those fights have been going on for years without resolution. No current Guantanamo prosecutors will speak with the media. But chief defense counsel John Baker - remember; he's the one who says he'll spend as much as needed to defend the prisoners - says in the end, it isn't worth the money.

BAKER: The commissions are a failed experiment, and they're a farce. I mean, they are a legal farce.

PFEIFFER: Last month, a military court judge set January 2021 as the start date for the 9/11 trial. He is new to the case and the third judge to oversee it. And defense lawyers consider that trial date unrealistic. But as that judge said in court in July, I am trying to put order to a process that I did not create.

Sacha Pfeiffer, NPR News.

CHANG: And tomorrow on Morning Edition, we hear why whistleblower Gary Brown believes he was fired for trying to settle cases.

(SOUNDBITE OF J'SAN'S "AWAKENING") Transcript provided by NPR, Copyright NPR.