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Mission: Fairness

Col. Wendy Kelly, on leave from her post as a federal prosecutor in Philadelphia, has a goal as she prepares for terrorism trials at Guantanamo: Credibility.

Khalid Sheikh Mohammed, alleged 9/11 mastermind, is among the "high- value" detaineesat Gitmo. A27.
Khalid Sheikh Mohammed, alleged 9/11 mastermind, is among the "high- value" detaineesat Gitmo. A27.Read more

GUANTANAMO BAY, Cuba - There's an expression among young soldiers here, one rarely uttered outside the prison camp razor wire.

Don't pet the terrorist.

In other words: Treat detainees humanely but don't be so eager to make up for past abuses that you put yourself or your country at risk.

Army Col. Wendy A. Kelly - a Philadelphia lawyer who is the executive producer of America's forthcoming terrorism trials against 80 detainees - sees parallels in this expression to her own behind-the-scenes work here, including building a $12 million courtroom.

"On one hand, you have our ideal of the presumption of innocence, and then you have the notion that you are dealing with people who could be - well, most likely are - guilty of terrible crimes and are our sworn enemy," she says. "How you handle that is the challenge."

So far, four minor players have been charged. None has gone to trial.

But if, as expected, formal charges are brought soon against a "high-value" detainee, perhaps even confessed 9/11 mastermind Khalid Sheikh Mohammed, much of the world's focus on Guantanamo will shift from prison camps to the courtrooms Kelly is crafting.

Two years ago, Kelly left a job she loved in Philadelphia and uprooted her struggling family to Washington to begin the job of her career, supervising a quasi-legal process that's been criticized from nearly every corner of the globe.

The 305 prisoners, most detained since 2002 as part of the U.S. military's global war on terrorism, have been held largely incommunicado, without trial, amid serious allegations of torture and mistreatment. Gitmo is a place so tainted that even Secretary of Defense Robert Gates wants it closed.

New allegations seem to surface monthly that raise serious questions about whether the trials will be fair. On Thursday, the CIA admitted destroying videotapes showing severe interrogation techniques. Such tapes might have been offered by detainees trying to prove torture.

Last week, the Supreme Court heard argument on whether the Gitmo detainees have constitutional rights - specifically habeas corpus, or access to civilian courts. A decision isn't expected for months.

"Every time you talk about Guantanamo," Kelly says, "it sets off people's buttons, either rightly because they know what's happening, or wrongly because they think they know."

Kelly's work is part logistics, part law, and she keeps two offices.

On a remote, sun-scorched plateau by Guantanamo Bay, she supervises renovation of an existing courtroom and construction of a state-of-the-art courthouse.

Back in Washington, in an unmarked, secure corner office near the Pentagon, Kelly helps draft terrorism-trial rules and reviews proposed formal charges against detainees, including top-secret evidence.

If the first terrorism trial does begin early next year - roughly six years after detainees began arriving from Afghanistan - it will mark the first full-fledged U.S. "military commission" since World War II.

Will the military commissions, as Kelly predicts, show that the United States can convene fair trials for accused terrorists? "I think people will be surprised," she says.

Or will the trials, as critics suggest, become yet another chapter in what they describe as the Bush administration's sorry legacy of perverting the rule of law in the name of national security?

"We do ourselves a disservice if we use shotgun justice because it won't command any respect in the world," says Joseph Margulies, a Northwestern University professor and detainee lawyer. "You create a fair process, and Guantanamo is no longer a recruiting tool on the Internet."

Kelly, 51, whose formal title is director of operations of the Office of Military Commissions, holds a rare perspective. She has spent 26 years as a government lawyer - half in the military, half as a civilian federal prosecutor in Philadelphia. Her DNA is half soldier, half lawyer.

She doubts that detainees have rights but thinks they deserve a fair trial anyway.

"I'm sure most Americans think, 'To hell with them. Why should we give them a fair trial? They're terrorists.' It's true that we don't have to provide a trial for any of these people. We have the legal right to keep them until the conflict is over, which may be five years or may be 100 years. But if you're going to provide trials - for the sake of the United States and the JAG [military legal] corps, because we are the ones who are going to be judged - they have to be fair."

Regardless of whether her assessment is accurate, Kelly's task is an odd and complex one, crafting courtrooms from scratch, with constantly shifting timetables and ever-evolving rules, knowing that, at any moment, someone in Washington could call the whole thing off.

"It's got to be frustrating," says Army Reserve Lt. Col. Thomas Bogar, a Philadelphia lawyer defending a detainee and a critic of the trials. Years before 9/11, Bogar worked for Kelly. "I trust her, and I couldn't say that about most lawyers involved."

"I think it must be extremely difficult for Col. Kelly because they are making this up on the fly," says Margulies, who wrote Guantanamo and the Abuse of Presidential Power, which won the American Bar Association's Silver Gavel Award.

"You've got the potential for trials that really could showcase what American justice is capable of being . . . and then you've got the reality on the ground which chips away at that, and leaves only a mockery," he says. "I don't envy her."

Unanswered questions

Kelly anticipated the legal and political hurdles; she did not expect so many logistical challenges to creating the courtrooms - the audio, the lighting, the air-conditioning, the remote video feeds, the field toilets, the classified viewing chambers, the arrow pointing to Mecca. No detail is too insignificant.

"The job means preparing and anticipating, getting it right," she says, "not only because it's morally the right thing to do, but because this will be on the world stage, so part of our nation's credibility will be on the line."

Kelly's tweaks began almost as soon as she arrived. She scrapped the military's routine use of paper documents and ordered everything digitized. She hired William and Mary Law School to design a computerized courtroom.

And when Kelly learned that the plans for the terrorism trials assumed that the tribunals would be held much like a court-martial in a theater of war - in field tents - "I said, 'Outside? Are you nuts?' "

At a minimum, these trials had to look professional. Lawyers and judges could not be expected to try cases in Class-A uniforms in 100-degree heat, with shifting winds and blowing sand. High-tech equipment would require protection. Jurors would need a private place to deliberate. Besides, Kelly wondered, what security risks would an outdoor venue pose?

She moved everything indoors.

Kelly soon faced more questions.

What if defense witnesses can't get to Guantanamo? Many won't be able to testify in person - some because they are on U.S. terrorist watch lists and can't get visas, others because they don't have the means or are simply too scared to visit a U.S. military base. Her solution: Witnesses may testify via video feed from any U.S. embassy.

What's the best way to protect classified information during trial? Build a glass wall between trial participants and reporters, then pump audio into the media gallery with a five-second delay. For reporters, she says, "it may feel like watching a badly dubbed Japanese Godzilla movie, but it'll work."

Plenty of questions remain unanswered.

What happens if a detainee is acquitted? "Are they released?" she says. "A policy decision has not yet been made."

Where will the convicted serve their sentences? "Here? Afghanistan?"

One question troubles Kelly the most: Will the United States really ever see full-fledged military terrorism trials?

A deadline looms. Kelly shares the widely held notion that if a "high-value detainee" - say, a high-ranking bin Laden aide - isn't tried by next year's election, the next president is likely to scrap the process and abolish her office.

If that happens, she says, no matter the cause, history will judge the commissions "as a failure."

Job of a lifetime

The colonel, her blond hair cropped short, wears combat fatigues and carries a pink cell phone and lavender purse. A bobble-head Chihuahua, a gift from her daughter, bounces playfully on the dashboard of her Ford Escape.

"Wendy couldn't care less what people think," says friend Barbara Cohan, a former Philadelphia prosecutor. "I'm grateful there are people in this administration willing to say the emperor has no clothes. She's not an ass-kisser or a BS-er."

When the bureaucracy irritates Kelly, which is often, she lowers her voice and unleashes sardonic invective. "You waste so much time dealing with internal bickering and arguing about allocation of resources. I was a psychology major, not a philosophy major. I like to solve problems, not discuss them."

She is accustomed to challenges. The daughter of a schoolteacher and an engineer, Kelly grew up middle class in upper-class Greenwich, Conn. A conservative, she found the left-leaning University of Wisconsin "eye-opening," in part because she met people of different races, incomes and political philosophies.

Afterward, she enrolled at the conservative Catholic University Law School and, during a Pentagon internship, became enamored of the Army's history and sense of order. At graduation, she enlisted as an Army lawyer, a job she figured she'd keep for three years.

In officer school, Kelly began dating a classmate named Steve, fresh from Temple University Law School. He seemed smart and, because he'd been raised in a Northeast Philadelphia rowhouse, spoke with an accent, attitude and volume she'd never heard before. They married within a year, then did tours together for 13 years in South Korea, Germany, Washington and New Jersey.

In 1987, Kelly gave birth to a boy with Asperger's syndrome, a neurobiological disorder with autistic symptoms. Three years later, she had a daughter. (Because of the nature of her job, she asked that her children's names not be published.)

It was not easy raising a disabled child, though the early years were relatively kind to the Kelly family. By the late 1990s, when Kelly left the Army to take a better-paying job as a federal prosecutor in Philadelphia, she found herself essentially raising the children alone.

She and Steve had begun to drift apart - friends say he struggled with depression. He took a job in Maryland and saw his family only on weekends, when he visited their home in Medford, Burlington County.

By 2003, as the son struggled at Shawnee High School, the daughter, now an eighth grader, started to rebel.

"Overnight, I think she just snapped," Kelly says. "She thought, 'If everyone else can act up, I can, too.' She refused to go to school. She missed 60 days that year. . . . It's no secret to anyone who knew her that she was out of control."

By 2005, Kelly was beginning to miss days of work - prosecuting high-dollar frauds and major drug dealers - to cope with family crises. Then in May of that year, an old Army boss, John Altenberg Jr., a retired general in charge of the terrorism trials at the time, called.

He had an opening. She was still in the Army Reserve. Would Kelly consider taking a leave from her work in Philadelphia to become his executive officer?

The professional part was easy. True, she was working on two major cases, including the U.S. Drug Enforcement Administration's first global online pharmacy investigation. But here was a chance to be part of history, a chance to apply 26 years of work as a soldier and a lawyer toward an iconic set of trials.

The personal part was more complex. Moving to Washington, closer to Steve's job, meant the family could probably live under one roof. It also might give her daughter a badly needed fresh start.

She thought it over for about a month. Then she submitted the paperwork.

Shifting rules

When Kelly reported for duty in the fall of 2005, things looked promising.

A civilian federal court had just rejected a constitutional challenge to the commission process, and although the case was headed to the Supreme Court, the Pentagon didn't seem worried. Trials appeared to be on the horizon.

That outlook changed unexpectedly in 2006. In February, a U.N. commission, citing torture and unreasonable detention, called for Gitmo to be closed, increasing global scrutiny and criticism. In June, the Supreme Court scuttled the military commission process, ruling that President Bush had exceeded his authority for the trials because he failed to obtain congressional authorization.

Kelly spent the next five months working with Pentagon and congressional aides reviewing drafts of the revised commission process. The result was a process that she says largely resembles that of a U.S. court-martial: With a military judge presiding, a dozen colonels and lieutenant colonels chosen from a preselected pool of 160 will determine not only guilt or innocence, but the sentence as well.

The terrorism tribunals will differ from courts-martial in three significant ways - the potential use of hearsay, evidence obtained by coercive methods, including torture, and classified information.

Prosecutors say hearsay must be presented because some witnesses, from deployed U.S. troops to Afghan nomads, may not be available to testify at trial. But this puts the defense at a distinct disadvantage because second- or thirdhand information, including written reports, can't be cross-examined.

Evidence obtained by torture is banned, but information obtained by degrading treatment is not. The judges, career military officers, will make that call case by case.

Bogar, the Philadelphia defense lawyer, says this won't be so easy. "Who are they going to believe? A terrorist? Or our fighting soldiers?"

His client, he says, endured the same harsh treatment other detainees allege: "Hoods, loud music, putting him in extremely hot and cold rooms, strapping him to chairs in uncomfortable positions."

Kelly thinks judges in American courts make tough distinctions like this all the time. Some calls will be easy, she insists. "Is putting ladies' underwear on a Muslim detainee's head torture? I don't think so."

Classified evidence may pose an even greater challenge. Under the revisions, a judge may permit a detainee to view summaries of such evidence. Under the old rules, a lawyer couldn't discuss classified evidence with his client. "It was ridiculous, like having one hand tied behind your back," Bogar says. Still, the new rules allow a judge to keep a witness' name classified, a practice some lawyers call Kafkaesque.

For Kelly, the new rules have slowed the cases because the intelligence agencies are now involved, determining what's classified and what isn't.

"Maybe sometimes CIA says yes and NSA [the National Security Agency] says no," she says. "You have to fight these ridiculous battles."

Getting there

Guantanamo is beautiful.

The ragged coastline is lined with tiny beaches and hills that rise 494 feet above sea level. Most evenings, an orange sun melts in the shimmering Caribbean Sea.

Naval Station Guantanamo, the oldest overseas U.S. military base, lies isolated on Cuba's southeastern tip, about 600 miles from Fort Lauderdale, Fla. Regular cell phones don't work here; Internet is spotty.

Early on, Kelly found that her new responsibility did not necessarily come with clout. "People who spend all their time on that island develop a different mentality," her husband says. "With no chance to leave, they sometimes get very territorial, and she would come home and talk about how difficult people down there were."

Last year, after a few months of frustration, Kelly, who visits Gitmo every 60 days, sent a git-r-done staff sergeant, Dominic MacDonald, down permanently to be her eyes and ears.

Mac, as he is known, is 44, stout and sunburned. He has been married four times, recently survived a heart attack, and has served in Iraq. He is Kelly's Radar O'Reilly - supply clerk, travel agent, foreman, facilitator, traffic cop, confidant.

He bird-dogs supplies, and, whenever there are terrorism tribunal proceedings here, he coordinates flights, clearances, housing, food, badges and ferries for the judges, jurors, lawyers, interpreters, technicians, translators, and everyone else who visits. He also lays the wires in the courtroom, adjusting the jury box.

During a midsummer visit, as Mac gave Kelly an update, he said things seemed finally to be coming together.

That morning, in fact, an all-star squad of U.S. marshals had arrived to scout the Navy base, making secret preparations for the day they'll be asked to fly convicted terrorists held in civilian prisons in the continental United States to Gitmo to testify. Such a complex trip might cost $100,000 to $200,000.

Later, an Air Force C-5 Galaxy, a plane nearly as long as a football field, landed on the weed-strewn tarmac and delivered three mobile, windowless trailers, custom-designed by the CIA. These were the special, $200,000, electronics-proof chambers for viewing the most sensitive classified information.

The new courtroom under construction won't be ready until March, and so the first trial, if it begins before then, will take place in a makeshift space in a World War II-era terminal.

The new courtroom, imported by barge in 60 prefabricated pieces, will be big enough to try six defendants at once. This will allow, for example, the alleged 9/11 plotters to be tried together.

In fact, with two courtrooms, the military may run concurrent trials, two by day, two by night.

"There was even talk a while ago of running three eight-hour shifts of trials, basically a 24-hour operation," Kelly says. "If we're asked to do that, we'll be ready."

'No mistakes made'

The rising courthouse complex rests a few miles from the vortex of the Guantanamo controversy - the prison camps. Some soldiers joke that it is "America's biggest gated community."

The medium-security section resembles a dusty trailer park. Inside one of these white trailers is a gray-carpeted room with two tables, an American flag, and a plastic chair. A handcuff link is bolted to the floor.

Here, detainees make a first appearance before any U.S. tribunal.

It is not Kelly's court, but a controversial, preliminary one called the Combatant Status Review Tribunal. The Pentagon created the CSRTs in 2004 after a Supreme Court ruling that the military must provide some measure of due process, some forum to determine a detainee's status as he awaits trial.

Defense lawyers and even one tribunal member have belittled the CSRTs because they are generally one-sided affairs. Detainees are not allowed to see classified evidence or talk to a lawyer. They instead are given a "personal representative," essentially an American serviceman who can act as spokesman.

"It's a debacle," Margulies says.

More than half of the 800 or so prisoners who have been brought to Guantanamo have been ordered released, many following a CSRT panel. But the United States has struggled to release dozens of detainees. In some cases, officials say, they worry that countries with histories of human-rights abuses might torture or indefinitely jail detainees upon their return. U.S. officials don't seem to see any irony there.

In fact, the supervisor of the CSRTs, Navy Capt. Gary Haben, doesn't flinch when asked if anyone, including the hundreds already released, was brought to Gitmo in error. Haben is resolute: "There's no mistakes made."

Kelly bristles at such talk. "To say any system is without fault is ridiculous."

But Kelly also bristles at repeated reports that detainees have been tortured. Torture allegations made by scores of detainees have been buttressed by FBI agents, who said they witnessed abuse at Gitmo. Kelly says that she doesn't have "any information" about torture, but that if true, the reports are exaggerated or outdated.

The Gitmo guards - the ones who use the phrase Don't pet the terrorist - are kids her kids' age.

"No one writes about what the detainees do," Kelly says. "There's just the conclusion by the media that detainees are constantly mistreated and the guard force are a bunch of sadistic monsters - that particularly bothers me."

According to military reports and interviews with guards, the detainees scream, they attack, they carve shanks, they spit, they hurl cocktails of semen and feces. "It takes a lot of patience," a guard said.

Kelly thinks the backlash against past abuses has gone too far. "The guards are not allowed to search detainees' 'sacred places' " - between their waist and knees - "because it might offend their religious sensibilities."

She shakes her head. "I'm sorry. Their sacred places? Can you believe that?"

In the balance

The northern Virginia headquarters of the Office of Military Commissions, the supposedly neutral referee for the terror trials, is lined with photos from 9/11. By a desk, a press officer has hung a picture of the World Trade Center explosion.

Not Kelly. She keeps a lawyer's office, one stuffed with diplomas, plaques and pictures - of her receiving an award from Attorney General Janet Reno, posing with prosecutor colleagues in Philadelphia, vacationing with the family out West. On a top shelf, she has a collection of Army Barbies.

On a recent morning there, she reported that things appeared on track. Down in Gitmo, tents were sprouting on the old airfield tarmac. The prefabricated courtroom had arrived by barge. Once it was erected, the infrastructure would be in place, the logistics largely done.

And yet, that very morning, the former chief prosecutor, Col. Morris Davis, had surprised everyone. He quit. Worse, he told the Wall Street Journal that Kelly's boss, a general, had pressured him to bring formal charges against a famous detainee for political reasons.

Kelly was angry that Davis spoke publicly, but more frustrated that his words further wounded the credibility of forthcoming trials.

Recently, Kelly says, she decided to re-up for a year, a time line that coincides with the 2008 election. By then, she figures, the trials will be well under way or dead.

It's a move that will also give the family at least one more year under the same roof. Beyond that, things appeared promising enough that Kelly and her husband decided to sell their South Jersey home.

The disabled son struggles, trying to find his way at a local college. He spends a lot of time online and doesn't get out much because he doesn't drive.

But the daughter - Kelly beams when she says her name now - has made a comeback. A new school, a new life made a big difference.

A high school senior, the daughter is not only sure she will attend college, she actually permitted her mother to drive her to visit to a few East Coast schools. They are filling out applications together.

Mom and daughter also talk about Guantanamo and hope to travel there together soon. The daughter, who two years ago considered her mom evil, now spreads the Don't pet the terrorist gospel to suburban classmates. The girl doesn't use that precise phrase, but still, Kelly is proud.