This article is more than 5 years old

This article is more than 5 years old

The military command at Guantánamo Bay has stopped honoring security clearances for attorneys representing the only detainee who has agreed to testify against the 9/11 defendants, the Guardian has learned. A doctor specializing in the treatment of torture victims has also lost her ability to visit the base.



Katya Jestin, a former federal prosecutor, is no longer able to see her client, Majid Khan, jeopardizing Khan’s own case and posing yet another challenge for the long-stalled 9/11 military commission.

Nor is Dr Sondra Crosby able to visit detainee Abdel Rahim Nashiri, whose attorney, Rick Kammen, described the situation as inexplicable.

Joint Task Force-Guantánamo (JTF-GTMO), which operates the indefinite detention center, had previously honored the two clearances. Without them, attorneys and defense-team doctors have no way of passing through the Guantánamo gates to visit their clients.

Since July, Jestin and Crosby have not been able to enter the base.

The chains of command and associated bureaucracies at Guantánamo Bay compound the lawyers’ frustrations. Military commission judges have no authority over the detention center itself, and cannot order JTF-GTMO to do anything.

Army colonel James Pohl, the judge in Khan’s case, has ordered government prosecutors and defense lawyers to come to a resolution that provides Khan’s attorneys with access. But that depends on a military command deciding to comply.

In Crosby’s case, attorney Kammen said it was unclear even to Nashiri’s defense team whether JTF-GTMO was responsible for the blockage or was merely enforcing it. Crosby has been allowed to visit Nashiri, whose brutal torture at the hands of the CIA was documented in detail by the 2004 Senate intelligence committee report. Nashiri has since become one of the commission’s most high-profile defendants.

Attorneys interviewed by the Guardian said the military taskforce had neither explained the situation nor outlined a path to remedying it. The attorneys are particularly confused because Khan, 35, is perhaps the military commission’s greatest success: a detainee who agreed in 2012 to plead guilty to murder and testify against the accused 9/11 mastermind, Khalid Sheikh Mohammed.

“It’s absurd. It’s an illustration of the dysfunction that plagues Guantánamo and in many ways is getting worse,” said Wells Dixon, one of Khan’s attorneys, whom JTF-GTMO only recently agreed could see Khan again.

The member of Khan’s defense team most substantially impacted is Jestin, a former assistant US attorney who has held a top-secret clearance for years and who declined to speak for this story while the dispute continued. She has been told without explanation that JTF-GTMO will not allow her to visit Khan.

As Khan’s defense team understands the Defense Department’s proposed remedy to the situation, Jestin must reapply to the Justice Department for a security clearance that she already holds.

“The whole clearance process appears to be in shambles,” said Kammen.

According to Kammen, the defense team made arrangements for Crosby to visit Nashiri in August. After negotiating the terms of the visit, “the JTF told us she had no clearance” a week before the team was scheduled to arrive at Guantánamo. Crosby has held a clearance and has visited Nashiri for years.

Nashiri faces a war-crimes tribunal for the 2000 attack on the USS Cole that killed 17 US sailors and wounded 39 others. In CIA custody, he was waterboarded, anally penetrated under the guise of a “rectal rehydration” force-feeding, and threatened with a gun and a power drill.

Kammen said the experience has disinclined Nashiri to trust his defense team – something Crosby’s abrupt inability to see him has exacerbated.

“The problem is, when there are these multiple administrative problems, from the client’s perspective, he sees his lawyers powerless to have even the basic impact on things as fundamental as what his team looks like,” Kammen said.

“It’s understandable that would have a negative impact on the attorney-client relationship.”

Crosby did not respond to requests for comment.

Aspects of the clearance denial in Khan’s case appear in a series of legal motions before the military commissions that have recently come unsealed.

Attorneys for Khan – another former CIA detainee whom the Senate intelligence committee confirmed was tortured - attempted in August to arrange a visit ahead of a sentencing that is anticipated for 2016. According to a government filing, they learned that members of their legal team “did not appear” on the joint taskforce’s “list of people with proper security clearance for access to their client”.

Yet the government went on to acknowledge that attorney Wells Dixon’s “clearance was current, and simply needed to be transmitted to the JTF”. The government treated the matter as a situation for which Khan’s lawyers were responsible.

On 19 August, Judge Pohl ordered the prosecution to ensure that the Khan team’s clearances were “up-to-date and reflected on JTF-GTMO’s ‘list of people with proper security clearances to access their client’”, a task he ordered completed by 31 August. A joint filing by the government and defense on the clearance issue has yet to be unsealed.

Dixon, who said he has now been reapproved by JTF-GTMO to see Khan, said the clearance issue remained unresolved for Jestin and another colleague, Aliya Hussain, with no resolution in sight. It is unclear whether the attorneys’ access to Khan would be reinstated ahead of his sentencing.

“It’s a major problem for our representation of him,” Dixon said.

Other lawyers report that they have experienced difficulty with JTF-GTMO honoring their clearances. Most typically, the clearance problems occur when attorneys who represent Guantánamo detainees in habeas corpus challenges before civilian courts switch to representing Guantánamo detainees before military commissions.

Andrea Prasow of Human Rights Watch, who said she had experienced such difficulty, said JTF-GTMO took about three months to honor her clearance.

The Pentagon did not provide comment for this piece.

Dixon, left without explanation as to why his colleagues’ clearances were no longer honored, declined to attribute deliberate wrongdoing to any Guantánamo or defense official. But the experience reinforced “a palpable sense that [lawyers] are not welcome by the JTF”, he said.

“The denial of visit requests, the seemingly arbitrary decision to deny certain members of our team access to our client after years of representation and litigation, it adds to that sense that we are unwelcome even in a case where we represent a cooperating witness for the government,” Dixon said.