Pretrial motions are moving forward for three detainees who have been held at Guantanamo Bay for two decades on charges related to a terrorist bombing in Bali in 2002 that killed just over 200 people.

Butzel Long shareholder George Donnini spent a week in Cuba at the end of April as an observer to the proceedings on behalf of the American Bar Association, joining others from nongovernmental organizations, the media and victims' families to witness the slow gears of military justice turning.

Since 2002, around 780 prisoners have been held at the detention camp in Cuba, and it's widely recognized that for a period of time, many were tortured there. With a number of cases now resolved, just a few dozen prisoners still remain at Guantanamo Bay.

In 2003, the U.S. government began allowing outside legal observers into the military commission proceedings in the interest of transparency and accountability for a process that has been widely criticized as overly slow, delaying justice in a number of cases surrounding the U.S.'s war on terror.

"It's important to shine some light on these proceedings," Donnini, a criminal defense trial lawyer, told Law360 in an interview on his trip to Guantanamo Bay. "I don't think in our nation's history have we detained people for over two decades without trial. It's not our finest moment."

Donnini traveled from Detroit, Michigan, where he is based, to Guantanamo Bay, Cuba, on April 22. The trip included a stop at Andrews Air Force Base in Maryland, where he and a number of others involved with the proceedings all boarded a plane together for the final leg of the journey.

The judge on the case, along with his staff, victims' family members, members of the media, representatives of nongovernmental organizations, and lawyers representing both the defendants and the government all piled onto the aircraft together. It was the same when they arrived — they were all thrown into the experience together, getting meals and going to the gym in the same facilities.

Donnini was there for a week, during which there were three full days of proceedings.

As an observer to the process, Donnini drew both from his perspective as a lawyer and as a military veteran. As a Marine judge advocate before his career in private practice, he became familiar with the Uniform Code of Military Justice and the court-martial system.

As a trial lawyer he also had a bird's-eye view of the differences between civilian courts and the commission.

Aside from the sheer amount of time it takes to get a trial, he said two main differences stood out: the admissibility of hearsay and the absence of a right to confrontation, meaning secondhand stories witnesses heard years ago can be entered into evidence. Both of those differences make the defense team's job harder and the prosecution's easier, he said.

But when asked whether he believes a fair trial is possible at Guantanamo Bay, Donnini says he does believe it is achievable — as long as the government is forthcoming with discovery.

The three prisoners — Encep Nurjaman, Mohammed Nazir bin Lep and Mohammed Farik bin Amin — were captured in 2003 and subjected to detention and torture at CIA black sites, which means "there's a lot of sensitivity around what happened to them, what will be disclosed, those kinds of things," Donnini said.

Another challenge for the defense is simply the period of time that has elapsed since the detainees were captured, and the fact that the crime scene is in a foreign country. Additionally, the government of Indonesia has already conducted trials of its own related to the Bali bombings, which led to the conviction and execution of several defendants. That means some major witnesses have died.

"It makes things very complicated to try a case when two decades have passed between the events and when the trial will begin," he said.

Despite all those challenges, Donnini said he still believes some measure of justice can be achieved in the case.

"To the extent there are criticisms of these commissions — and there are plenty of reasonable and accurate criticisms — there's no doubt in my mind this is a real fight, so to speak," he said. "These prosecutors are up against real, seasoned defense lawyers that have done a lot of work in the military court-martial system and the civilian world. And they're fighting really hard for their clients."

--Editing by Robert Rudinger.

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