Initial Impressions

Today I observed hearings in the 9/11 case of KSM and 4 other defendants. Before I go into detail about the day, I want to mention my overall impression, which is one of shock and dismay. Given the arguments today, I can only say that I feel like this whole process seems like a sham, like the government is putting the defendants through the process to give the impression that they are being given a just trial. However, there is far too much happening behind the scenes that indicates that there are serious issues regarding the government’s behavior throughout the proceedings and in the handling of these defendants. It was shocking and disappointing. The victims’ families, this country, and the defendants deserve justice. I’m unsure whether this process is providing this. With that said, I truly enjoyed watching the attorneys in action. As an attorney, it is great to see solid legal arguments made on behalf of both parties involved.

Arrival at Ft. Meade

The hearing started at 9 am. I wanted to arrive early since I knew I would have to go through the visitor’s gate and possibly have my car inspected. I stayed in a hotel just 5 miles from Ft. Meade. I left my hotel at around 8 am and was able to get situated in the Post Theater, where the hearings were live broadcasted, by 8:30. I had no complications in getting to the theater. I simply put the address in my GPS and found parking at the theater parking lot. The theater was sparsely filled. In total, I would estimate there were less than 20 people present.

Call to Order

The first call of business was for counsel to introduce themselves and give their credentials. During this time, I noticed the involvement of military officers as part of the defense team. This seemed to raise issues of bias to me. After hearing the arguments today regarding government infiltration of the defense team, this issue comes back to mind. I don’t want to assume the worst about these members of the defense team; it just seems to me that such an officer with strong government ties would be an easy target if the government were indeed trying to infiltrate the defense side, as was argued today.

After counsel introduced themselves and gave their credentials, Ms. Bormann, counsel for bin Attash, indicated that she needed a recess in order to brief her client. She indicated that she was not able to talk to her client until yesterday and that she had to do so without her notes. As a result, she forgot some points that she wanted to discuss with her client. As she explained, any notes she brings into a meeting with her client have to be reviewed by a government contractor, who does not work on weekends. She seemed a bit irritated by this arrangement. I can understand the government’s national security interest in reviewing these documents, but I think it presents
many interesting issues. As an attorney, it goes against every instinct to share your notes in this way. In fact, I feel like if I were in her position, I would almost be resistant to write any notes and instead try to brief clients by memory. I could also imagine a scenario where an attorney might have an urge to write misleading notes as a way to conceal her impressions, legal theories, or other sensitive information. In general, this arraignment seemed very concerning to me looking at it from an attorney perspective.

Before the recess, the judge advised the defendants of their right to be present during the hearings. All of them indicated, through an interpreter, that they understood this right. After this, we took a 30 minute recess for Ms. Bormann to be able to consult with her clients with notes in hand!

Recess

During the recess, the members of the IU team stepped outside the theater to talk. We were able to chat about our professional backgrounds and interests in the hearings. We were also able to talk with someone from another NGO, who had been to numerous hearings. She gave some insight into the hearings at Guantanamo Bay and what to expect for today’s hearing. She also told us about a sixth defendant that was supposed to be a part of this trial but who is no longer being prosecuted. She explained that the government chose not to prosecute him because he had been tortured so badly and as a result, will be held indefinitely.

Initial Issue—Mistreatment of Defendants

Before the arguments on the main motion, defense brought to the judge a couple of issues. The issue I found most interesting was about the treatment of the defendants. The attorney for bin al-Shibh noted that her client is being mistreated. As she explained, he was rather upset this morning due to incidents that had occurred the night before. According to her, bin al-Shibh was awakened by guards just an hour after falling asleep. Once awake, the guards laughed at him and mocked him. She also stated that her client has been on a hunger strike since May 25th and that he is being belittled by guards as a result. She was asking the judge to address the issue with an order, but the judge seemed disinterested in hearing about this issue at this particular time. As such, the hearing went forward. I thought this would have been a more pressing issue for the judge, but it was not. Again, I was shocked that this was not addressed. I’m not sure what the judge’s thinking was, but he gave the impression that he did not care to hear about this. I found it surprising since there have been so many allegations of torture of these defendants. I thought the judge would have wanted to ensure that there are no further allegations of this nature but apparently that’s not the case.

Motion on Attorney Conflict of Interest

The defense’s motion essentially alleges that the FBI has been investigating the defense team which has resulted in changes to the defense’s investigation of the case. Various members of the defense indicated that they had cancelled trips to the Middle East to conduct investigations due to possible government monitoring. They argue that this is causing a conflict of interest. The defense provided evidence of FBI contact with at least 3 members of the defense team. The defense is asking for discovery in order to determine whether an actual conflict does indeed exist. On the other hand, the prosecution says there are no longer any investigations going on and thus, no conflict exists. In addition to the normal pleadings on this motion, the prosecution was also able to make their case through 3 ex parte communications that the judge allowed to be submitted by the prosecution. I suppose this is unique to Military Commissions since ex parte communication is not allowed in normal circumstances in civilian courts. These communications seemed to cause much frustration in the defense camp. They clearly wanted to know what was contained in those communications.

I think the various defense attorneys made good arguments. They were quick to point out that based on past issues of government intrusion, such as monitoring and planting of listening devices, they are quite suspicious of current FBI actions. In some attorneys, the suspicious almost bordered on paranoia. The prosecution in rebuttal did refer to various letters written by the FBI that denied any active investigation. While I did find the defense argument more convincing, I’m not certain whether the judge will grant their motion. The problem is that the FBI has already denied that there is an investigation. Even if the judge were to order discovery in this matter, I find it highly unlikely that the defense is going to be able to come up with the information they want. The government has already shown that it is willing to skirt the rules. There is no reason to expect it to be forthcoming about its investigations. Frankly, I think granting this motion would open a can of worms which the judge seems unwilling to do. Regardless of his decision, this issue has tainted this case. One attorney in particular expressed that he would seek to withdraw if the motion was not granted, while the prosecution noted that this is eventually going to be used on an appeal.

Conclusion

It was a great experience to see attorneys make thoughtful legal arguments. I think the judge is in a no-win situation. This issue has tainted the case. I cannot imagine anyone wanting to work on the defense team in the current environment. The defense is obviously suspicious of government intrusion, making it difficult for them to continue this case.