Panic like a 1st year law student or new law firm associate!

It is easy for an Guantanamo Bay fair trial NGO observer to experience the same sort of panic that a first year law firm associate experiences when thrown into a complex litigation matter. I’ve spent a fair bit of time over the last few days reading and re-reading the motions to be heard next week when I am in Guantanamo Bay. Despite my homework, I am not sure I fully comprehend the significance of many of the details.

 

Blog posts – to a fair trial – Guantanamo Bay Fair Trial Manual.

Generally, my blog posts during my Guantanamo Bay mission will not focus so much on the substance of the legal arguments related to the case. Instead, they will focus on right to a fair trial issues, as discussed in the Guantanamo Bay Fair Trial Manual. However, on the eve of my departure, I wanted to post on the defendants in the hearings next week, the pre-trial motions scheduled, and on the odd assortment of categories of lawyers expected to be present to represent the defendants and to represent the U.S.

The hearings for 15 – 16 December 2014

Five motions are scheduled to be heard during two days of hearings at Guantanamo Bay in the case against 5 alleged masterminds of the World Trade Center / Pentagon attacks on 9-11. All five defendants, Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak bin ‘Atash, Ramzi bin al Shibh, Ammar al Baluchi (aka Ali Abdul Aziz Ali), Mustafa Ahmed Adam al Hawsawi, and their legal defense teams are expected to be present for the hearings. Also expected to be present is Independent Counsel appointed for Mr. bin al Shibh.

The regular prosecutors in the case will likely not be in the courtroom during at least some of the hearings, but the U.S. will be represented by a “Special Review Team” that was called in to represent the U.S. next week because of conflict of interest issues related to due to allegations related to the FBI allegedly infiltrating defense teams on the case. 

Conflict of interest

Earlier this year, it was revealed that members of the 9-11 defense teams had been approached by the FBI to act as informants. This raised issues of conflict of interest for defense team members. Defense lawyers should be loyal to their clients. If the FBI is investigating the defense team, and you as a defense lawyer might be a target of that investigation, might you devote more energy to protecting your own interests than protecting the interests of your client? Does the FBI investigation of your defense team cause the defendant’s (your client’s) legal position to be compromised? Has the attorney / client relationship been damaged irreparably? In April 2014, an independent Special Trial Counsel / Special Review Team (Department of Justice prosecutors) was appointed and tasked with investigating the FBI’s actions with respect to the defense teams.

The Military Commission later concluded that there was no actual or potential conflict with respect to 4 of the 5 five defense teams. The Military Commission concluded that there may be an actual or potential conflict with respect to the legal team representing Defendant Ramzi bin al Shibh.

In August, Judge Pohl ordered Independent Counsel for Mr. bin al Shibh. Lt Col Julie Pitvorek, USAF was then assigned as Independent Counsel for Mr. bin al Shibh.

Lt Col Pitvorek is expected to be present at the December 15-16 hearings, along with Mr. Harrington and LCDR Bogucki, Mr. bin al Shibh’s present counsel.

Summary of Motions Scheduled for 15 – 16 December 

The five motions are described briefly below. The brevity of the summaries is not intended to negate the significance of these matters:

(1)   AE292RR Motion of Reconsideration of AE 292QQ (Order):

The Special Trial Counsel is requesting that the Military Commission reconsider its decision that (i) there may be a potential conflict within Mr. bin al Shibh’s defense team and (ii) the appointment of independent counsel are necessary to determine whether an actual or potential conflict exists with respect to his defense team.

(2)  AE 292SS Joint Motion for Reconsideration of AEQQ (Order): Defense counsel for Mr. Mohammad and Mr. al Baluchi are requesting the Military Commission reconsider its decision to not appoint independent counsel for these two defendants to determine whether a conflict of interest exists with their current legal defense teams.

(3)  AE 292TT Motion of Special Trial Counsel for Clarification of AE 292QQ (Order):

The Special Trial Counsel seeks clarification about what the Military Commission ordered with respect to the FBI’s storage and retention of information related to their investigation of Mr. bin al Shibh’s defense team.

(4)  AE 292VV Motion to Compel Discovery Related to Interference with Defense Function by the United States:

All five defense teams request the Military Commission to compel the Prosecution’s Special Trial Counsel to provide the evidence related to the FBI’s investigations of the defense teams.

(5)  AE 292YY Motion for Appropriate Relief-Disclosure by Military Judge Whether He has Acquired Information Relating to the Case from an Undisclosed Source and the Details of the Information:

All five defense teams request that the Military Commission disclose whether the Military Judge has received additional information regarding the FBI/conflict of interest matter and if he has received such information, provide that information to defense counsel.

My homework — Focus on Right to a Fair Trial Issues

I have done my homework, received helpful advice and insights from MCOP Observers Hattie Harman and Chuck Dunlap, and much direction and guidance from Professor George Edwards. I am excited to start the journey to Guantanamo Bay tomorrow morning when I head to Andrews Air Force base at 4:50 a.m.

My upcoming blog posts will not focus so much on the substance of the legal arguments related to the case as my role is one of observing, analyzing, reporting on the right to a fair trial issues, as discussed in the Guantanamo Bay Fair Trial Manual.

(Posted by Catherine Lemmer)