August 2022


The trial

By Bronwyn Adcock
Detail from the “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program”

Detail from the “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program”

The Kafkaesque fate of Encep ‘Hambali’ Nurjaman, 20 years after the Bali bombings

On the night of Monday, August 11, 2003, a squad of plain-clothed police officers swarmed into an apartment building in the Thai city of Ayutthaya, around 80 kilometres north of Bangkok, smashing down the door to apartment 601. According to witnesses, the short, plump, bespectacled Indonesian man who lived inside was led away without a struggle. Locals said he only moved in a few weeks earlier, and throughout that time had so pointedly kept to himself it was conspicuous.

By Wednesday, United States government officials were briefing the world’s media that the raid was a Central Intelligence Agency operation, and that the captured man was a terrorist wanted in the “War on Terror” – the global, borderless war the US launched upon Al Qaeda and other Islamist terrorist networks after the attacks on September 11, 2001.

Thirty-nine-year-old Encep Nurjaman, also known as Hambali, was a senior leader in the South-East Asian militant Islamist group Jemaah Islamiyah and, according to the Americans, an Al Qaeda operative and “close associate” of a September 11 plotter. His arrest was such a coup that, on Thursday, the then US president, George W. Bush, was heralding it in a speech to troops just home from fighting in Iraq. “Hambali was one of the world’s most lethal terrorists, who is suspected of planning major terrorist operations,” he said. “He is no longer a problem to those of us who love freedom.”

The arrest was major news for Australia. Hambali was accused of being a mastermind of the bombings at Paddy’s Pub and the Sari Club in Kuta, Bali, on October 12, 2002, which killed 202 people. The 88 Australian victims included footy players celebrating the end of season with a team trip, teenagers on their first overseas surfing holidays, nearly half the members of a bridal party and a mother on holiday with her young children. Bringing maimed survivors home required Australia’s largest aeromedical evacuation since the Vietnam War. In the aftermath, approximately 100 members of the Australian Federal Police flew to Indonesia to assist with the investigation.

Speaking to reporters in the week of Hambali’s arrest, the then prime minister, John Howard, said it was “a major breakthrough, which I very warmly welcome”. Hambali, he said, “was almost certainly the ultimate mastermind of the Bali attack. So, to those relatives and friends of the 88 Australians who died in that outrage almost a year ago this is, I hope, some further measure of justice.”

But by week’s end Hambali was gone; out of reach of Australian and Indonesian investigators, and anything resembling justice. He’d been whisked away by the CIA into a netherworld of clandestine prisons, so-called black sites the CIA operated in foreign countries – a network the US government denied existed.

He reappeared three years later, in September 2006, when president Bush admitted publicly for the first time that the CIA had been holding suspected terrorists in these secret prisons. Bush said that Hambali and other “high-value detainees” were now coming in from the cold – they were being flown to the US military prison in Guantanamo Bay, Cuba, where they would face prosecution under the specially created Guantanamo military commission system.

Yet Hambali has still not faced trial. This October marks 20 years since the Bali bombings. It will also be the month that pre-trial hearings in Hambali’s case are finally scheduled to begin. Will this mean justice at last?

When James Hodes was hired to serve as Hambali’s defence lawyer in early 2017, it was 14 years since the arrest in Thailand, but his client had still not been charged. At first, Hodes, who’d worked as a criminal defence attorney in the US legal system for 30 years, thought this “unfathomable”. But, as he tells me over a Zoom call from Miami early one morning, “the more I learnt about the case that I’m involved in, the more you realise how our government has stripped away any and all constitutional safeguards that are usually inherent in most criminal cases, and have done so in a way that is so egregiously bad, just everything about it is truly awful”.

Trying to wrap your head around how the Guantanamo military commission system works can be disorientating; even more so if you try to use foundational Western legal precepts, such as equality before the law or open justice, as reference points. “What you need to understand,” Hodes says, “is none of it is normal.”

Hodes has to go through a “complicated and convoluted” process to even get permission to see his client in Guantanamo Bay. “In my mind, that’s a constitutional violation in and of itself,” he says. “The Constitution generally guarantees effective assistance to counsel, and that is very difficult to provide right now.” Even when Hodes does meet with Hambali, “we have great doubts about whether or not we are seeing him in a place that is secured and not being listened in on”. In 2017, a defence team for another Guantanamo detainee discovered a listening device hidden in a light switch in their meeting room. (The government said the microphone was not operational.)

Hodes is also limited in the information he shares with his client. If he receives material about the case that government prosecutors have labelled as classified, “it means we cannot show it to him and we cannot discuss it with him. I don’t know how we’re supposed to give him effective assistance of counsel if we can’t even talk about the case with him.”

Over Zoom, Hodes often pauses before he answers questions, and declines to answer basic questions of fact such as how many times he’s met with Hambali. He is restricted in what he can say publicly about the case by the US Department of Defense, which administers the military commissions. Not that he is entirely sure what these restrictions are. “We are basically told, ‘We’re not going to tell you what the guidelines are, but we’ll tell you when we think you’ve crossed the line.’ So, I may have already crossed the line, I don’t know. We have had situations that led to rebuke. I don’t even know if I’m allowed to talk about what that consists of.”

But then he throws caution to the wind. “I’ll tell you a couple of the things that I’m pretty sure are not allowed,” he says. “Discussions of torture, anything more specific than just the word torture. The mentioning of any of the places where torture may have occurred, they’re not allowed.”

The alternate legal universe that exists in Guantanamo Bay was created in November 2001, when president Bush issued a military order governing how the United States would treat the foreign nationals it scooped up in its War on Terror. “They artificially created a category of people that they could treat differently, that weren’t due legal protections,” says Dr Kasey McCall-Smith, an international law expert from the University of Edinburgh. Planeloads of orange jumpsuit–clad men – shackled at the ankles, handcuffed, blindfolded by gaffer tape over goggles – were deposited into outdoor wire mesh cages at Guantanamo’s Camp X-Ray, with numbers peaking at 656 prisoners in 2003.

In June 2006, the US Supreme Court ruled that this alternate legal process was unlawful, and that detainees could have access to the US court system, along with its rights and protections. In October, though, just a month after Hambali and the other “high-value” detainees arrived at Guantanamo, Congress stepped in, passing legislation that once again stripped detainees of any rights to US courts. Following more legal challenges over subsequent years, Congress passed the Military Commissions Act of 2009 – cementing an offshore legal system that McCall-Smith says uses a “pick and mix” approach to international law. “It pretends to pay homage to the Geneva Conventions and to the different human rights obligations,” she says. “But then there are all types of caveats to that, and potential loopholes.”

American journalist Carol Rosenberg has been covering Guantanamo Bay – “the beat from hell” – for 20 years, first for the Miami Herald, and now for The New York Times. She witnessed the first planeload of detainees arrive in January 2002, and watched as the military commissions evolved to deal with the unique challenge posed by the CIA’s black-site detainees.

“Never in the history of modern America have we taken someone and disappeared them into the dungeon for three years and then dusted them off and said, ‘We’re going to charge them,’” Rosenberg says. A new court chamber was built. Any observers would have to watch hearings through a triple-paned glass window, with a 40-second time delay on the audio – a “dump button” was always at the ready.

“It’s basically a national security court,” she says. “It’s really designed to protect the CIA and the countries who were collaborating with the CIA, because those [the CIA black sites] are national security secrets. They haven’t been declassified. The CIA promised the countries that let them set up the secret prisons that they would never acknowledge that they did it, and never say what they paid for it. And the government of the United States, under successive presidents, has agreed to keep that promise.”

Many of the dark secrets of the CIA’s detention and interrogation program have emerged via human rights investigations, court cases and investigative journalism. More than 20 countries have been identified as suspected hosts of black sites, including Afghanistan, Lithuania, Romania, Poland, Thailand and Morocco.

In 2014, a 6700-page report by the US Senate Select Committee on Intelligence detailed a comprehensive official account, but only a redacted summary of around 700 pages has ever been publicly released.

The summary report reveals 119 detainees were subject to techniques including waterboarding, force-feeding orally and anally, sleep and sensory deprivation, mock executions and threats that family members would be raped or murdered. One detainee died from hypothermia after being left semi-naked on a cold floor while chained to a wall. It was acknowledged that 26 of these people were detained by mistake.

Techniques used on Hambali specifically include solitary confinement, sleep deprivation, forced stress positions (for example, arms stretched above him while his feet were tied to the floor), interrogation while naked, and “walling” – a practice where a collar is placed around the neck while the head is slammed into a wall. The report said these techniques were used on Hambali despite assessments he was already “cooperative”. The report also said Hambali later recanted most of the significant information he gave under torture, and that CIA officials subsequently judged these recantations were “credible” – he’d just told the interrogators what he thought they wanted to hear.

In one of the CIA black sites where Hambali was held between 2003 and 2006 (the country is not named), his interrogator told him he would never go to court, because “we can never let the world know what I have done to you”.

These were men who “weren’t interrogated at that point with the intention of going to trial,” says Rosenberg. “They were interrogated quite brutally with the goal of getting information.”

Hambali was finally charged in June 2017. He faced seven different counts, including terrorism and murder in violation of war, with the charge sheet alleging his involvement in both the Bali bombings and the bombing of the Marriott Hotel in Jakarta in 2003, which killed 12 people. In relation to the Bali attacks, it alleged he held two meetings with Jemaah Islamiyah members just under a year before the bombings, where he ordered them to look for targets frequented by Westerners – nightclubs, bars and cafes – promising he could secure Al Qaeda funding for the attacks. It alleged he was in contact with one of the key organisers before, during and after the bombings, and, knowing the attack was imminent, ordered an associate to rent him a hotel room with access to CNN so he could watch the television coverage.

But over the following year, Rosenberg’s reporting revealed that while the chief prosecutor approved these charges, a series of officials who held the title of “convening authority” for the military commissions twice refused to approve them, which meant the case did not progress.

Rosenberg says it is not clear exactly what was going on behind the scenes. However, she understands that before a case can go ahead, the CIA must file a document that specifies what secrets could be at risk if there is to be a trial. In Hambali’s case, this document wasn’t forthcoming. “And I don’t know whether the prosecutor wouldn’t ask them, or the intelligence community wasn’t willing to say there can be a trial,” says Rosenberg. “But there was a period when the prosecutors wanted to bring this case against Hambali, but they didn’t have sign-off from the intelligence community.”

James Hodes, Hambali’s lawyer, believes the long delay in bringing Hambali to trial was not only because “he and lots of these other guys were tortured by the United States government, which is a federal and international violation of law”. It was also because “the government’s evidence [against Hambali] is just not good”.

The case lay dormant until January 2021, when, without explanation, the official overseeing the military commissions announced the prosecution against Hambali was approved to go ahead. It was odd timing. Joe Biden had just been inaugurated as president, and his nominee for defence secretary had told Congress that the incoming administration was going to close down the Guantanamo Bay prison.

Rosenberg says she doesn’t know why the case was suddenly approved, but the “prevailing theory” is that it was motivated by a concern that Biden was “going to stop the court”. The Department of Defense hadn’t had a new case in Guantanamo since 2014, and they “wanted to get a case through. And so, somebody decided they should push this case. This is what we believe. There’s no other explanation for the timing. So, it was done like a legacy thing to tee up a case that might never have been tried.”

In August 2021, Hambali was due to appear in the military commission court. It was a procedural step, an “arraignment”, and he would be appearing with two alleged co-conspirators, Malaysian men Mohammed Nazir bin Lep and Mohammed Farik bin Amin – both of whom had also been detained at CIA black sites.

Rosenberg flew down to Guantanamo Bay to report on the hearing. She recalls watching through the triple-paned window and, even though the audio was on delay, immediately realising something was awry. Lawyers for the defendants were “repeatedly jumping up and trying to stop it, everybody’s trying to figure out what the heck is going on”. It unfolded that there was a problem with the court-appointed translators. “They [the defendants] are being asked questions and they’re being told about their rights. And they’re, like, nodding or whatever, but their lawyers are saying they don’t understand.”

Even with his already-negative impression of the military commissions, Hodes was astonished. “Despite the government having had custody of my client for over 18 years at that point,” he says, “they did not have interpreters that were capable of actually interpreting from English to Malaysian, or English to Indonesian, in a proper coherent manner so that our clients would understand what was happening”. Defence lawyers for all three accused protested, and the judge agreed to postpone the reading of the charges – the purpose of the hearing – until the following day.

The next step is pre-trial hearings, a process where the details of the case are laid out and any potential legal problems dealt with, so the trial itself runs smoothly. This is due to begin in October.

The possible trajectory of Hambali’s case can be seen by looking at other cases under way in the military commissions. Of the 780 detainees ever held at Guantanamo Bay, 37 remain, and 10 of these have been charged and are awaiting trial (including Hambali and his co-defendants). The “9/11” case, involving five detainees accused of aiding the hijackers, has been stuck in pre-trial hearings for 10 years. Pre-trial hearings for the man accused of organising the attack on USS Cole in 2000 have been under way for 11 years. Neither case has a trial date set.

In her capacity as director of the human rights program at the Edinburgh Law School, Kasey McCall-Smith has flown to Guantanamo Bay to observe many of the 9/11 pre-trial hearings. She likens it to watching a hamster wheel, a “constant interpretation of a law that no one seems to understand. There’d be week-long sessions, and every single day, there was a new issue that would arise in the course of the proceedings that no one knew the answer to. So, they would have to litigate that.”

But the fundamental problem, McCall-Smith says, is that by its very design the system cannot deliver justice, because the Military Commissions Act fails to address the fact that the defendants – who were all held in CIA black sites – were tortured by the United States. “It doesn’t offer any clear path to remedy the wrongs that were committed, which is part of the justice system. I mean, justice is about balance. It’s not about retribution. And the way the Military Commissions Act is drafted, it’s about retribution. It’s a very unbalanced system,” she says. And as for why a pre-trial is still going after a decade? “I think the fact that 10 years of pre-trial… it’s not simply because Guantanamo is a complete pain to get to. It’s that the system is almost perpetually self-defeating, because there are no answers provided by the statute.”

Many of the pre-trial hearings in the 9/11 case have been consumed by a laborious process of identifying and then scrubbing out secrets. “The bottom line is, because these men were held by the CIA, there are things that even their lawyers can’t know and the world can’t know,” says Rosenberg. “And so, the prosecutors who work for the Pentagon comb through the applicable evidence and when they decide ‘they can’t know’, they create documents that are substitutions that the judge has to sign off on. Any reference to any country they were interrogated in is removed from the evidence. The names of anyone who participated in the black site is protected. So, that whole period, which is pivotal in the pre-trial, is being cleansed of secrets.”

With the exception of one defendant who pleaded guilty, no one who was ever held in a CIA black site has made it out of pre-trial. James Hodes doesn’t think it likely Hambali’s case will either. “I have no expectation when it comes to this. Zero. In fact, if anything, I would expect there would be problems at every step of these proceedings – every step. Because it’s just not well thought out, it wasn’t intelligently done. It was just cobbled together by people that wanted to hide what our government did to these guys in particular, to this gentleman in particular. And the fact that they wanted to cover up what the CIA did, has led to an absolute mess of a legal process, if you want to even call it a legal process. I don’t know if I’d call it that at all. I think it’s just a legal cover-up.”

Rosenberg has advice to any Australian journalist interested in coming to watch the proceedings in October: don’t book your plane ticket yet.

The Monthly asked the Australian government if it has confidence that the military commission system is capable of delivering justice in this case. The Department of Foreign Affairs did not answer this question, but a spokesperson said: “Australia has always called for those involved in the Bali bombings to face justice and, if convicted, to be given sentences appropriate to the serious crimes committed.” We asked the Australian Federal Police if, given its initial role in investigating the crime, it was involved in the trial. A spokesperson said: “AFP confirms it is providing support to United States authorities in the prosecution of Hambali.”

Indonesian courts have convicted more than 30 members of Islamist group Jemaah Islamiyah for their involvement in the Bali bombings. The self-confessed operational mastermind of the operation, Imam Samudra, was executed by firing squad along with two other ringleaders in 2008. A fourth high-level planner, Ali Imron, was given a life sentence after he apologised and expressed remorse. Radical Muslim cleric Abu Bakar Bashir was found guilty of conspiracy for the Bali attacks and sentenced to two and half years of imprisonment, but his conviction was later overturned. As recently as January this year, another member of Jemaah Islamiyah was sentenced to 15 years in prison for his involvement in the bombings, after spending nearly 20 years on the run. While legal and terrorism experts, and victim’s families, have differing views on how perfect this delivery of justice was, it is indisputably more complete than the US version.

Brian Deegan can still vividly recall the day in 2002 when he walked up the stairs in his house in Adelaide, and saw his 22-year-old son Joshua on the computer checking the official travel advice for Bali. Josh was a member of the Sturt Football Club and, having secured the premiership, the team was planning a trip away to celebrate. “He turned to me,” Deegan recalls, “and he says, ‘Dad, Bali’s safe.’”

Josh was in the Sari Club when the car bomb exploded outside. “He left Australia on Friday, I waved,” Deegan told a newspaper not long afterwards. “He has been brought back to me piece by piece whether it has been parts of his body, his bag, some of his personal possessions.”

Today, Deegan says his “nightmares are still there on a regular basis, but when I’m awake, I choose absolutely not to dwell … when you have other children, you have to move forward.”

Deegan, who was once a magistrate and now works as a lawyer, pays little heed to what’s happening with Hambali’s case. “It’s become pointless as far as I’m concerned. I said years ago that a tortured person is not a viable witness, and I maintain that today. As a lawyer, I have no respect for a system that keeps a person suspected of the crime in custody for such a lengthy period of time before presenting him before a court for trial.”

I ask Deegan if, in the face of such immeasurable loss, it would have made any difference to him to have a proper judicial process take place. “Possibly,” he says. “I would’ve wished that anybody that was concerned with the bombing was brought to justice in an appropriate forum, but … that really didn’t happen, and it never will happen. And so, I had to sort of close my heart, my mind, my soul to events that I had no control over.”

Bronwyn Adcock

Bronwyn Adcock is a freelance journalist whose work has appeared in The Griffith Review and The Saturday Paper, and on the ABC. She is the author of Currowan.

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