Today lasted longer than yesterday’s roughly 40 minute hearing. However, it was still over by 11:15 AM.

As the hearing began, it was noticeable that only KSM and Ramzi Binalshibh were present. Walid bin Attash, Ali Abdul Aziz Ali aka Ammar al-Baluchi, and Mustafa al Hawsawi were not present when the MC was called to order at 0915 on 15 April 2014. Captain G, a liaison between the Staff Judge Advocate and the JTF-GTMO camp in which the detainees are held, testified that she advised each defendant of their right to be present at the hearing. Each of the three defendants waived their right to be present. As a procedural note, I imagine Captain G’s full name was not released for security concerns, although this was never addressed during her testimony.

The entire hearing dealt with the conflict of interest issue. This issue was created when 2 FBI agents interviewed the Deputy Security Officer (DSO) for Ramzi Binalshibh’s Defense team. The DSO acts as a liaison with defense counsel on what evidence should be considered classified and what evidence should be considered unclassified in court filings. Although the DSO from Binalshibh’s team has been removed, the conflict of interest issue is the sticking point right now. Judge Pohl referred to this as the FBI interview issue (292).

All five Defense teams want an abatement of the hearings until the conflict of interest issue is resolved, while the Prosecution wants Judge Pohl to deny the abatement request and move onto the original docket. Specifically, the Defense teams want the Commission to conduct an inquiry as to whether or not a conflict actually exists. Mr. Nevin, lead defense counsel for KSM, said case law requires an inquiry when a “specter of a conflict is presented.” The Defenses argument is that there is a possibility that a conflict exists because of this FBI investigation; therefore, an inquiry must be conducted by the Commission. Defense cited 3 SCOTUS cases in support of their argument. The cases were Wood v. Georgia, Cuyler v. Sullivan, and Holloway v. Arkansas.

On the other side of the aisle, the Prosecution wants Judge Pohl to address the originally scheduled docket and come back and look at the conflict of interest issue at a later hearing. It is the Prosecution’s contention that there is “no legally cognizable conflict of interest” for any of the defense attorneys; therefore, the hearing should proceed as originally intended and the 909 issue should be addressed.

The most interesting exchange of the hearing occurred when Judge Pohl questioned Mr. Ryan, an attorney for the DOJ and co-counsel for the Prosecution. Judge Pohl asked Ryan, based on his experience, since it it is an ongoing investigation, did Ryan think it would be unlikely that the 2 FBI agents would cooperate if the Judge issued an order for them to appear? Mr. Ryan stated “[I] think the commission would be greatly mistaken to go down a road of trying to look inside an ongoing investigation being conducted by the Federal Bureau of Investigation, if, in fact, one is in — exists.” The Courts inability to order certain agencies — namely the FBI — to come testify gives off the initial impression that there is a lack of control by the MC over the proceedings. Which brings the question: Ultimately, who is in control of these proceedings?

I think Judge Pohl should just bifurcate the issues. Since the defense is not challenging Binalshibh’s competency, I don’t understand how they would be conflicted to let the Prosecution present evidence on the 909 issue. The MC could use this week to figure out Binalshibh’s competency, then it can move onto the FBI issue (292) during the next round of hearings. This would allow the Prosecution to address the 909 issue and it would also allow the Defense to have an inquiry conducted into the FBI investigation before the next scheduled hearings. It seems to me to be the pragmatic solution. With all of this being said, I understand the gravity of the conflict of interest issue and I am sure Judge Pohl would rather be safe than sorry. He would rather address the conflict of interest issue first, so it potentially is not brought up later on appeal and reversed for structural error — which under the Federal Court system requires an automatic reversal without a showing of harm.

Note: I would like to thank my fellow IU Affiliate, Hattie Harman, for bringing the structural error issue to my attention.

Judge Pohl adjourned the hearings until Thursday, April 17 and issued an Order that anyone who was approached by the FBI or any other federal government agency, concerning any defense-related matters, must disclose this to the Lead Counsel of each team, and not anyone else. Also, by Wednesday at 5 PM, the defense has to submit any proposed orders of production that they believe appropriate in the case.

If you would like more details about today’s hearing please find a copy of the transcript below.

KSM II (TRANS15April2014-AM)

Since the hearing was over before noon, some of the NGO group went and took a tour of Radio GTMO. The station’s motto is “Rockin in Fidel’s Backyard.” We visited the radio station because it also has a popular gift shop. In fact, I bought a couple of “challenge coins” here. These coins are generally collected by other service members to show what bases they have been to.

 

All of the NGO’s, 13 of us, met with General Mark Martins, Chief Prosecutor of the Military Commissions, for a Q&A session at 5:30 PM. General Martins was very respectful of everyone’s questions and I appreciate it that he took time out of his extremely busy schedule to sit down with us. Overall, I thought it was a productive Q&A, given the fact that the General can only talk about so much because of the nature of this case. That said, I got the impression that he answered most of the NGO’s questions in a very prosecutorial/politician sort of way — making sure to never tip his hand.

Although the hearing was cut short, I felt the rest of the day was productive. Time to wait and see what Thursday brings. Until then, it looks like Wednesday is going to include some more snorkeling!

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