RACHEL MARTIN, HOST:
We told you yesterday about an NPR investigation revealing gross mismanagement and waste at the U.S. prison at Guantanamo Bay, Cuba. That came after a former lawyer at the military court filed a federal whistleblower complaint.
Today we tell you about another allegation. That same lawyer says he was fired for pursuing settlements to avoid the death penalty for detainees he represented [see POST-BROADCAST CORRECTION below], pushing instead for life in prison. NPR's Sacha Pfeiffer has the story.
SACHA PFEIFFER, BYLINE: The whistleblower is retired Air Force Colonel Gary Brown, and he became legal adviser to the head of Guantanamo's court in April 2017. Ten months later, he and his boss were abruptly terminated.
GARY BROWN: We were called under false pretenses to a meeting in the Pentagon and then handed letters with no explanation. And our credentials were seized, and we were escorted out of the building.
PFEIFFER: Brown says he'd been shocked by Guantanamo's lack of progress - just one finalized conviction and 40 prisoners still there - and its cost, more than $6 billion since 2002. He also says prosecutors are unlikely to win death penalty convictions because so much evidence is tainted by torture. If they do get convictions, the appeals process could take another 15 years and cost billions more. So Brown and his boss Harvey Rishikof, who used to head Guantanamo's court, had an idea to save time and money: negotiate plea deals with prisoners facing the death penalty, including Khalid Sheikh Mohammed, alleged mastermind of the Sept. 11 terrorist attacks.
BROWN: He talked to me from the very beginning about his belief that the commissions had ground more or less to a halt, and he felt strongly about taking a position to move the cases and get justice for the family members.
PFEIFFER: Rather than go to trial, the inmates would plead guilty and get a life prison sentence. That could resolve the court's legal gridlock.
BROWN: They haven't been successful. They're incredibly expensive. Wouldn't it be better if we just said they didn't work this time?
PFEIFFER: But plea deals are unacceptable to people who believe that the men behind the almost 3,000 deaths caused by the 9/11 attacks should be executed. At a military court hearing NPR attended in July, a lead prosecutor told the judge that any torture the prisoners were subjected to is, quote, "like a feather to an anvil of what these people are responsible for." So prosecutors are insisting on the death penalty.
Soon after starting settlement talks, Brown and his boss were fired. The Pentagon says they lost their jobs not because they were negotiating with prisoners but for not following proper chain of command and their, quote, "needlessly disruptive and divisive manner."
Rishikof would not comment for the story, neither would any current Guantanamo prosecutors or the U.S. Office of Special Counsel, where Brown filed his complaint. But former prosecutor Morris Davis would.
MORRIS DAVIS: If there's a deal to be struck that has some light at the end of the tunnel for the detainee and some finality for the government, then I think it'd be worth sitting down and having to talk about it.
PFEIFFER: Davis was Guantanamo's chief prosecutor from 2005 to 2007. He says it's become a symbol of human rights violations. And since the government says it can keep holding the prisoners even if they're found not guilty, he considers settlements a practical alternative. Otherwise...
DAVIS: It's just throwing more money after money that's already been wasted.
PFEIFFER: NPR spoke with the lead lawyers for all six Guantanamo prisoners facing the death penalty. Each of them acknowledged that Brown and Rishikof had approached them about a plea deal.
David Nevin was, until recently, the top attorney for Khalid Sheikh Mohammed.
In terms of what could accelerate the process, if the death penalty came off the table, then would that change everything?
DAVID NEVIN: Oh, yeah. We'd be done. We would've been done a long time ago.
PFEIFFER: Nevin is one of numerous defense lawyers who for years have been calling the military commissions legal theater and a show trial.
NEVIN: Because even if they're 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. So it is an exercise in futility. And you really have to ask yourself, is this a wise use of resources?
PFEIFFER: What's your answer to that?
NEVIN: Yeah - and my answer is absolutely not. It's an utter waste of time and money.
PFEIFFER: The Pentagon says Guantanamo's military court and prison cost $380 million a year. But several Guantanamo lawyers told NPR that tally is probably an underestimate because it doesn't include resources from other government agencies or service members' salaries, like the 1,800 guards for Guantanamo's 40 prisoners. What that annual bill does include are government charter flights carrying 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, Pentagon-funded defense attorneys billing about half a million dollars a year and total legal costs of nearly $60 million annually.
CHERYL BORMANN: This is ridiculous.
PFEIFFER: Cheryl Bormann is the lead attorney for Walid bin Attash, who's accused of helping train some of the 9/11 hijackers.
BORMANN: 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.
PFEIFFER: Bormann believes Brown and Rishikof were fired for pursuing settlements. She points to military court testimony by Defense Department acting General Counsel William Castle.
Castle said he and former defense secretary Jim Mattis were told by former Attorney General Jeff Sessions that Sessions wanted, quote, "no deal." Castle testified, he interpreted that to mean no plea deals for Guantanamo inmates.
BORMANN: I'll leave to you and the listeners why it is that Mr. Rishikof was then fired by the secretary of defense.
PFEIFFER: NPR contacted representatives for Mattis and Sessions, but neither could be reached for comment.
GLENN MORGAN: This is Glenn Morgan, and I'm in Belmont, Mass.
PFEIFFER: His father, Richard Morgan, died in the collapse of the World Trade Center buildings. Glenn Morgan has traveled twice to Guantanamo to watch the military court hearings.
MORGAN: It's working but not at the pace I had hoped for.
PFEIFFER: And how would you describe the pace?
PFEIFFER: Morgan wants the five men accused of the 9/11 attacks to be put to death. But he also says he would accept a different resolution after years of so little progress.
For you, would a satisfying outcome be that they spend life in prison or continue to spend life in prison?
MORGAN: Yes. And 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, like, your definition of satisfied is modified. So I would be satisfied because there would be conclusion.
PFEIFFER: But a lack of conclusion is exactly what Morgan is bracing himself for.
MORGAN: So my prediction is that prisoners will die before they are found guilty.
PFEIFFER: And even if they died in prison at Guantanamo, you would feel cheated of something.
MORGAN: Oh, yeah. They would have not have been found guilty. They'll never been found guilty of murder, and they killed over 2,900 people. And so that would be an injustice.
PFEIFFER: Last month, a Guantanamo judge set a January 2021 start date for the 9/11 trial. Defense attorneys are skeptical that date is realistic. In the meantime, the Pentagon is considering a new Guantanamo prison that would offer hospice care for the aging prisoners.
Sacha Pfeiffer, NPR News.
[POST-BROADCAST CORRECTION: This story states that the whistleblower himself represented detainees. He did not. He was the legal adviser to the head of Guantánamo's military court.]
(SOUNDBITE OF PORTICO QUARTET'S "SIGNALS IN THE DUSK") Transcript provided by NPR, Copyright NPR.