Our Guantanamo Bay tents are about 50 yards from the entrance to the war crimes courtroom complex that we walked to at 8:15 a.m. today, Tuesday, 16 February 2016.  We had to pass through airport-like security to get into the courtroom. Today’s hearings are in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon.

The Observers sit in the gallery, with a thick protective glass separating our seating area from the defendants, counsel, judge and others in the main part of the courtroom. We stare through the glass at the backs of most of those of the courtroom, facing the judge.

We can see all that happens in the courtroom, as we peer through the thick glass. But our room is soundproof, and we can only hear what’s happening in court when TV screens with speakers are turned on, hanging in front of the glass gallery wall, piping in the audio.

Different sections of the gallery are reserved for the media, NGO Observers, and victims and their families (whose section can be cordoned off by a curtain should they wish). Military personnel may also take some of the gallery seats.

After we were all seated, the 5 accused entered the courtroom.

Each of these 5 accused has a civilian legal counsel and military counsel (Judge Adjutant General (“JAG”) attorneys).  Since this is a death penalty case, the Military Commission Act requires that the accused have an attorney that has previous death penalty case experience.  Civilian counsel for these 5 defendants have death penalty experience, and they are referred to as “Learned counsel”.

Courtroom Layout

Facing the judge on the left hand side of the courtroom are 5 tables, one for each of the accused, their civilian and military counsel, an interpreter and others on the defense team.  In the front and center of the courtroom is the military judge, Judge Pohl.  Judge Pohl sits elevated on the bench with a court security officer to his right (the left front of the courtroom), the witness stand to his left (the right front of the courtroom) with the court reporters located below, in front of the judge.  A speakers’ podium sits front and center of the judge and courtroom. The prosecution sits on the right side of the courtroom.  General Mark Martins is the Chief Prosecutor for all the U.S. Military Commissions.  We was present in court today and was seated with and assisted by attorneys from the Department of Justice and the Department of Defense, interpreters and 3 JAG officers.  To the far right of the courtroom is the jury box.  Since these hearings are for pre-trial discovery motions, there is no panel present.  Military Police (“MP”) personnel are located to the far left of the courtroom, along the left wall, and are seated there after escorting the defendants into the courtroom.   The are approximately 2-3 MPs for each defendant.  Paralegals, interpreters, MPs and other court personnel are located in the courtroom and may move about freely.

My general observations

As Observers, behind the glass, one of the ways we can best observe the proceedings is by closely observing the interactions of the players.  Here are some of my observations.

• All 5 accused wore glasses entering the court and removed them as the proceeding went on
• Kalid Sheikh Mohammad’s beard was partly black, partly white and partly orange.  It looked like it was dyed.
• All of the accused interacted with their attorneys.  They shook hands, smiled and appeared to listen to their attorneys.  In fact, the interaction was similar to what you would expect to see between a defendant and his attorney in a criminal trial in a regular U.S. courtroom.
• Two of the accused, Ali Aziz Ali and Mustafa al Hawsawi, spent much of today’s short court session talking to one another.
• I thought Judge Pohl did an excellent job maintaining courtroom order and decorum.  He set out to explain things to the accused, and apparently sought to understand any concerns raised by the accused or counsel. He appeared to ask pertinent, difficult questions.  It seemed clear to me that he was in control of the hearing and has respect of counsel on both sides.
• The Observers are viewing the hearing in real-time, through the glass.  However, the audio is delayed 40 seconds, for security reasons we were told.  This can make for awkward viewing.  For instance, we can see the personnel in the court stand up when the Judge enters.  However, we do not hear the “all rise” command until almost a minute has passed.  It can also make it difficult to determine when someone has finished speaking.  We can see them depart the podium, but we are still hearing their final remarks on the audio feed.

Proceedings

Today’s hearing did not begin until 9:15, about 15 minutes behind schedule.  Once the Judge was seated, he took the appearance of the parties and advised the accused of certain rights that they have.  He explained that the accused had a right to be present and it was their personal choice to attend or leave.  Most of the gallery was waiting in anticipation to hear the accused speak.  Each of the accused affirmed orally that they understood their rights as explained by the judge.  As Observers, we realized this is one of the few occasions that we may have to actually hear the accused speak, since during most hearings traditionally the lawyers and the judge do the talking.  The Judge explained what motions were going to be heard and asked defense counsel if there were any issues.

One of the defendants, Walid bin-Attash, expressed his desire to dismiss his learned counsel and military counsel.  From the testimony received and the judge’s statements, it appears that bin-Attash sent a letter (in arabic) to the Judge.  When questioned about the letter, bin-Attash stated that he did not trust his attorney and wished for new counsel.  It is my understanding that his lead attorney, Cheryl Bormann has been on the case since the beginning.  bin-Attash also expressed his intent to dismiss his other counsel, Michael Schwartz.  Schwartz was his previous military attorney.  Based on the testimony of his new military attorney, US Army Major Michael Seeger and bin-Attash, Seeger has only been on the case a very short period of time.  The Judge questioned counsel regarding an attorney’s duties to his/her client.  The Judge also questioned the accused regarding his intentions and whether he wished to retain Seeger. bin-Attash also provided the court with a second hand-written letter at the hearings, expressing his desire for new counsel.

The court allowed for input from other defense counsel and the prosecution.

After about an hour and a half, the court went into recess until tomorrow.  The Judge decided to have the letters translated and he would reconsider the request to dismiss counsel tomorrow.

For now, we are scheduled for a full day of hearings tomorrow, with the total hearing time today being only about 90 minutes.

Paul Schilling, JD graduate, Indiana University McKinney School of Law

(Published by Professor George Edwards on behalf of Mr. Shilling.)