First Up: Motions on Severance & Conflict-of-Interest

gitmo picI am en route via Chicago and Washington D.C. to Guantanamo Bay, Cuba for the first week of the 9/11 hearings.  The hearings are scheduled to start at 9:00 am on Monday, 9 February 2015. Judge Pohl has ordered that all five defendants must be present in court.

The first issue to be addressed during this session is reconsideration of Judge Pohl’s order of August 2014 (AE312) to sever Ramzi bin al Shibh’s case from the other four 9/11 defendants. Mr. in al Shibh’s case was severed as a result of the prosecution’s request for a competency hearing for him as well as the conflict-of-interest matter arising from FBI investigation into his defense team. If this sounds familiar, it should. These same motions were scheduled for hearing but not heard when the December 2014 hearings were cancelled over the female guard issue.

The resolution of the potential conflict-of-interest matter is a complex issue that has delayed the hearings for nearly a year. In 2014, the Military Commission concluded that there was no actual or potential conflict with respect to four of the five 9/11 defense teams. The Military Commission did conclude that there may be an actual or potential conflict with respect to the legal team representing Mr. bin al Shibh. In August, Judge Pohl ordered Independent Counsel for Mr. bin al Shibh to investigate and advise him. Lt Col Julie Pitvorek, USAF was assigned as Independent Counsel for Mr. bin al Shibh. LtCol Pitvorek will be present at the February hearings, as will Mr. Harrington and Lieutenant Commander (LCDR) Bogucki, Mr. bin al Shibh’s present counsel.

In April 2014 a Special Review Team consisting of Department of Justice prosecutors was appointed to investigate the FBI’s undisclosed interviews and investigations of certain members of the 9/11 defense teams. The creation of the Special Review Team was required because General Martins’ prosecution team can not investigate the defense teams. The Special Review Team functions as the prosecution with respect to the investigation of the defense teams and whether the FBI activity created a conflict-of-interest for the defense team.  The Special Review Team was in court at the preliminary hearings in June, August, and October on behalf of the prosecution. These prosecutors will be in court for the February hearings to represent the government for the three pleadings that will be heard by Judge Pohl related to these matters.  Should these matters be resolved, the parties will move on to the many other matters scheduled for argument in the following weeks.

The matters before the Military Commission are legally and factually complex. It makes it challenging for NGO Observers tasked with observing, analyzing, and reporting on whether the military commissions are open, transparent, and providing fair trials to the defendants.  It is important that we focus on our specific role in the process. The Guantanamo Bay Fair Trial Manual is a great tool to help us do so.

The matters scheduled on the docket include:

AE 312C Defense Response to Emergency Government Motion to Reconsider AE 302 Severance Order The order severing Mr. bin al Shibh is currently in abeyance (temporarily suspended). The judge may revoke the order, sever Mr. bin al Shibh, or continue to hold it in abeyance.)

AE 292RR Prosecution Special Review Team Motion for Reconsideration of AE 292QQ (Order) (Prosecution Special Review Team seeks to have Judge Pohl reconsider his decision that there may be a potential conflict within Mr. bin al Shibh’s defense counsel.)

AE 292VV Defense Motion to Compel Discovery Related to Interference with Defense Function by the United States.  (The defense asks Judge Pohl to compel the Prosecution’s Special Review Team to provide the evidence related to the FBI’s investigations of the defense teams. )

AE 292YY Defense 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 (The defense asks Judge Pohl to disclose what information he has about the FBI investigation that has not been provided to the defense.)

AE152 Prosecution Motion for R.M.C. 909 Hearing (The prosecution asks the Commission to establish the competency of Ramzi bin al Shibh to stand trial.)

AE 254KK Prosecution Government Motion For an Expedited Litigation Schedule to Resolve AE 254Y (The prosecution requests oral argument relating to the issue of female guards in contact positions with defendants.)

AE 331 Military Commission Judge Trial Conduct Order (The military judge ordered the government to review the Protective Order regarding classified information and sealed pleadings in light of the release of the Torture Report.)

AE 008 Defense Motion to Dismiss for Defective Referral (The defense position is that the Convening Authority did not charge the defendants properly.)

AE 031 Defense Motion to Dismiss for Unlawful Influence (The defense position is that the President of the United States put pressure on the Convening Authority to bring the case against the defendants.)

AE 192 Defense Motion to Disqualify (The defense position is that the Legal Advisor to the Convening Authority unlawfully interfered with the professional judgment of the Chief Defense Counsel and Mr. al Hawsawi’s Learned  Counsel.)

AE 196 Defense Motion to Disqualify (The defense position is that the Chief of Operations for the Convening Authority unlawfully interfered with the professional judgment of the Chief Defense Counsel and Mr. al Hawsawi’s Learned Counsel.)

AE 254 Defense Emergency Defense Motion to Permit Attorney-Client Meetings (The defense position is that JTF-GTMO is interfering with attorney-client visits.)

AE 112 Defense Motion to Compel White House and DOJ policy on Rendition, Detention, and Interrogation Program (The defense seeks to compel discovery about the policies underlying the CIA rendition, detention, and interrogation program.)

AE 114 Defense Motion to Compel Information regarding Buildings in Which Defendants May Have Been Confined (The defense asks the prosecution to produce evidence about any facility where the defendants were held.)

AE 182 Defense Motion to Possess and Resume Use of a Microsoft-Enabled Laptop Computer (The defense asks that the defendants have access to standalone computers to work on their defenses.)

AE 183 Defense Motion for Telephonic Access for Effective Assistance of Counsel (The defense asks to be able to communicate by telephone with the defendants.)

AE 195 Defense Motion to Compel Production of Communications Between Government (The defense seeks information about government involvement with the movie Zero Dark and Filmmakers of Zero Dark Thirty.)

AE 206 Defense (Mohammed) Motion to Cease Daily Intrusive Searches of Living Quarters and Person (The defense wants the prison to use less intrusive means to search for physical contraband.)

AE 036E Prosecution Motion to Clarify Order AE036D (The prosecution asks the Judge to order that the prosecution has control over all witnesses, including remote testimony.)

AE 036G Defense Motion to Compel Discovery (The defense wants the Judge to compel discovery on government policy of producing witnesses.)

AE 036H Defense Motion to Compel Witnesses (The defense wants the Judge to compel witnesses on prosecution statements regarding costs of producing witnesses.)

AE 214 Defense Motion to Compel access to Government of Saudi Arabia. (The defense requests that the Military Commission compel the Secretary of Defense to facilitate communications between Mr. Hawsawi and Saudi Arabia.)

AE 119 Defense Motion to Dismiss and to Compel a Status Determination Pursuant to Article 5 of the Geneva Conventions (The defense asserts that there is a question as to the status of the defendants under Article 5 of the Geneva Conventions and charges should be dismissed.)

AE 164 Defense Motion to Stay all Review Under 10 U.S.C. § 949-4 and to Declare 10 U.S.C. §949p-4(c) and M.C.R.E. 505(f)(3) Unconstitutional and In Violation of UCMJ and Geneva Conventions (The defense argues that the Commission’s decision to permit trial counsel to substitute, summarize, withhold, or prevent access to classified information is unconstitutional.)

AE 018W Joint Defense Motion to Amend AE 018U Privileged Written Communications Order (The defense argues that interpretations of the provisions in the written communication order are restricting attorney-client communications and should be amended to protect the rights to effective assistance of counsel and to prepare and participate in own defense.)

AE 018BB Defense (WBA) Motion to Compel Paper Discovery in Accordance with Privileged Written Communications Order (The defense requests that the Commission order the government to provide a duplicate copy of all paper discovery materials releasable to Mr. bin ‘Attash.)

AE 018MM Defense Motion to Compel Reasonable Privilege Review Team Hours of Operation (The defense requests that the Commission order the Privilege Review Team (PRT) to maintain reasonable weekend hours at all times; or at a minimum, maintain weekend hours for processing materials immediately prior and to and following hearings, or when there are approved attorney-client visits.)

AE 161 Defense (AAA) Motion to Require the Government to Comply with MCRE 506 Regarding redaction of Unclassified Discovery (The defense argues the Commission should order the prosecution to produce the complete, unredacted copies of certain unclassified discovery documents under Military Commissions Rule of  Evidence 506.)

AE 190 Defense (AAA) Motion to Compel Production of Information Relating to Statements Made by Mr. al Baluchi or Potential Witnesses at a Detention Facility Classified Motion AE 191 Defense (AAA) Motion to Compel Production of Information  Classified Motion AE 194 Defense (AAA) Motion to Compel Discovery of Mr. al Baluchi’s Statements (The defense requests that the military judge compel production of all records of all statements made by Mr. al Baluchi in the government’s possession

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay February 9-13, 2015)

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