I woke up this morning and I was anxious for the Hearings in the 9-11 case  to begin.

To The Courtroom
All of the NGO’s walked over to the courtroom at about 8:15 AM. After proceeding through security, I sat in the gallery about 15-20 minutes before the Hearing started.

I was assigned to seat 12 and it was almost unreal, being behind the window, only yards away from 9/11 defendants.After reading the 9/11 Commission Report and other articles pertaining to the attack, it felt very strange to be sitting behind the alleged defendants of the deadliest terrorist attack in U.S history.

As I looked through the window  that separated the observers from the accused, I was able to distinctly see all 5 defendants.

• Khalid Shaid Mohammad (KSM) is at the first table.
• Walid bin Attash is at the second table.
• Ramzi Binalshibh is at the third table.
• Ammar al-Baluchi is at the fourth table.
• Finally, Mustafa al Hawsawi is at the fifth table.

As the defendants were brought into the courtroom, each was accompanied by 4 guards (2 on each side of each defendant).

Speaking of guards, there were a lot of guards in the courtroom.

Fair Trial if Each of 5 Defendants Has 4 Guards in the Courtroom
If this case ever does go to trial,  I wonder if the defense counsel for each defendant will ask that the guards leave because it impacts their clients ability to receive a trial by an impartial jury. If there are guards surrounding the prisoners and the Commission Members (Jurors) are allowed to see this, then the defense may argue that their clients will not receive a fair trial because the Commission Members cannot be impartial when each defendant has 4 guards escorting him and at least 20-25 guards in the entire courtroom. That is an issue that may be brought up in the future, but for now I am going to focus on the matters at hand.

The Judge Enters Courtroom — The Proceedings Begin — “40 Seconds Into The Future”
Judge Pohl entered the courtroom and began the proceeding by reading each defendant his rights. All 5 defendants said they understood their rights. It is weird sitting in the gallery because what is known as “looking 40 seconds into the future” happens. According to Ammar al-Baluchi’s defense team, this is the sensation created by watching the hearing from the gallery where the live action is 40 seconds in the future relative to what is shown on the television. It definitely takes a couple of minutes to get used to. After all 5 defendants acknowledged their rights, the hearing got very interesting!

Competency of One of the Defendants
First, Judge Pohl addressed the Prosecution’s ex parte motion 152v, which related to the 909 issue of Ramzi Binalshibh’s competency. The Prosecution filed the ex parte motion of Sunday, 13 April 2014. After the Government made its request, Mr. Jay Connell, learned defense counself for Ammar al-Baluchi, objected to the ex parte hearing because he said it fell outside the narrow ex parte rules.

FBI Allegedly Creates Conflict of Interest by Interaction With Defense Team Liaison?
At this point, Mr. Harrington, learned defense counsel for Ramzi Binalshibh, noted that he filed an emergency motion to abate the proceedings on Sunday evening. This could potentially cause the proceedings to be halted for the rest of the week because it has huge implications!

In the Motion, the defense team for Binalshibh, said that their Defense Security Officer (DSO) was visited by two FBI agents on 6 April 2014 and asked to sign an agreement with them. The DSO is a civilian whose job includes assisting with handling classified information. Allegedly the FBI asked the DSO questions about all the defense teams. The issue that this created is potentially a huge conflict of interest problem!

There is a conflict issue because if the defense attorneys are subject to some inquiry or investigation, then the defense attorneys obviously have an interest in how that inquiry or investigation turns out. The issue becomes whose interest do the the attorneys protect–themselves or their clients.

Essentially, Mr. Harrington had two requests: 1) be able to conduct an independent investigation of his own team and 2) have independent counsel appointed to advise each of the 5 clients of their rights with respect to the conflict of interest issue and their ability to waive this right.

After Mr. Harrington, all of the other learned defense counsel for the defendants said they found about the FBI visit just over the weekend, April 12 or 13, prior to the hearings. All were concerned about the potential conflict of interest problem created by FBI questioning of the DSO officer.

General Mark Martins then addressed the Court and commented that the motion was “very well-composed” several times, alluding to the idea that the Defense Teams knew about this Motion and waited until the last minute to file it in order to delay the hearing. If the questioning of the DSO happened on Sunday, April 6 then that would have given the Defense 7 days to find out about it.

In order to find out if the Defense delayed in filing this emergency brief, I think you need to find out when the DSO told Mr. Harrington that he was approached and spoke with FBI agents and signed an agreement. However, even if Harrington knew ahead of time, I am not sure if he was able to inform other defense teams prior to getting to GTMO.

Which Motion Should The Judge Focus On?
The Government wanted to move on from the emergency motion to abate and proceed with the regularly scheduled docket.

The Prosecution wanted to focus on the Competency issue surround Ramzi Binalshibh.

I believe the Prosecution wants a ruling from Judge Pohl that Ramzi Binalshibh is competent to stand trial for two reasons: 1) to make a record, that way if the defense tries to appeal that their client was incompetent, it will be much more difficult and 2) to take away the possibility that the defendant will be able to file an ineffective assistance of counsel with regards to his defense team not filing a competency hearing despite Ramzi Binalshibh’s symptoms that he has displayed throughout the course of the various hearings and in his cell.

Ethical Issues?
Finally, Mr. Harrington also brought up ethical issues. He claimed that the attorneys were obligated under ethical rules to bring this conflict of interest issue before the Court.

The Day’s Hearings Draw To A Close
Needless to say, although this was a very short hearing, it was definitely interesting! A lot of the NGO’s who have been down here multiple times were not optimistic about the hearings for the rest of the week. My initial impression after talking to various individuals is that this conflict of interest issue is too big to move on from and Judge Pohl will probably cancel the hearings the rest of time until this issue is resolved. I really hope this is not the case!

We shall see what tomorrow brings.

Please see below for PDF File for the Unofficial Transcript from today’s hearing. KSM II (TRANS14April2014-AM)

P.S. Please be on the lookout for photos from GTMO. I am supposed to have Wi-Fi connection on my phone tomorrow (Fingers crossed).

 

By Jeff Meding, Military Commission Observation Project, Indiana University McKinney School of Law