This week I have been in Guantanamo Bay monitoring the war crimes case against the 5 alleged masterminds of the 9/11 World Trade Center attacks. Today, Wednesday, 17 February 2016, we had hearings all morning and most of the afternoon.

 

I will provide some of my general observations then I will discuss the morning and afternoon sessions.

Personal Observations:

• There is a red flashing light, similar to those in a used in a pro hockey game when a goal is scored, near the Judge.  If a witness or attorney is speaking in court and inadvertently states classified information, the light flashes, the gallery is cleared.  Fortunately, no disclosed confidential information today.
• Upon entering the court, the mood was not as tense as yesterday.  The four accused present for the morning session interacted with their counsel.
• The MPs escort the prisoners to the courtroom.  The also bring a tote box with belongings, which appear to contain clothing, legal paperwork, some clothes and a prayer rug, as well as other items.
• The accused are not handcuffed when they enter the courtroom.
• There were more victims and family members present in court today.
• An NYPD detective was present in the courtroom and acknowledged by the prosecution team.
• The Chief Defense Counsel, General Baker, was not present for these sessions, but will likely be available next week.
• We can often learn more from the body language of the participants than the words they speak.  One attorney appeared defeated after arguing a motion.  It was written all over his face and in his slumped shoulder as he returned to his seat.  This was before the Judge made a ruling.

 

The Accused

 

Four of the accused were present in the morning.  Khalid Sheik Mohammad (“KSM”) was present.  His beard appeared to be partly black and partly dyed, almost red.  KSM and the 3 other defendants wore an ornately patterned shawl or scarf, with black shapes on white.  The scarf had a prominent gold drawing of what appeared to be the gold dome of the Al Aqsa temple on the material that hangs on the front.  The word “Palestine” was prominently embroidered in green on the scarf.

Likewise, Walid bin Attash had what looked to be the same scarf.  He laid his scarf over the computer monitor at the defense table.  Ali Aziz Ali, wore a prayer cap and wore an al aqsa scarf.  Mustafa Hawsawi wore a white cap and an Al Aqsa scarf.

Ramzi bin al Shibh was not present for the morning proceedings.  The court heard testimony from a JAG officer from Camp Delta that bin al Shibh voluntarily refused to attend the proceedings.  He would attend the afternoon session.

 

Morning Session:

The session began at 9:30 with Judge Pohl making his ruling on Walid bin Attash’s (“WBA”) request for new counsel.  The Judge entered the letters as evidence.  The Judge considered the letters as a request to reconsider Mr. Attash’s October motion for new counsel, which was denied.  The Court also ordered that an independent counsel be assigned by the Office of Military Commissions, to advise the court as to whether there is an attorney client issue with the Attash team.  The Order and corresponding instructions to independent counsel will be under seal.

Immediately after the ruling, WBA’s  learned counsel, Cheryl Bormann, argued an oral motion to withdraw as counsel.  She argued that she can longer be effective as counsel.  She gave some of her background working with the defendant and argued that the constraints of the Military Commission system does not allow her to effectively represent her client.

The Prosecution responded that allowing Bormann to withdraw would greatly inhibit the accused right to learned counsel, which is required by 506(b).

The Judge denied the motion.

Next, the Judge heard KSM’s learned counsel, David Nevin, argue a Rule 406 motion regarding a possbile conflict situation with an interpreter.  Mr. Levin has a smooth delivery and, unlike some of the other attorneys here, is concise with his arguments and counterarguments.  According to the defense, KSM’s interpreter (for security reasons, the interpreters are not named) has been assigned to the defense team since 2012.  He had the required Department of Justice clearance, but at some point in July 2015, he had to wait for the appropriate clearance from the Department of Defense.  Another interpreter has been assigned, but the defense prefers the initial interpreter.

The prosecution, through DOJ lawyer Clayton Trivett, contends that, 1) KSM, who attended some college in the US, and understands English (how much is in contention) does not need an interpreter, and 2) the governments duty is to provide an interpreter, which it has, not a specific interpreter.

The Judge asked questions of both counsel.  Through the questioning session, the Judge asked the prosecution to determine if the interpreter at question is only waiting for his specific clearance, and how long it would take to obtain it.

Court adjourned for lunch.

Afternoon Session

The afternoon session started at 1:30.  The Judge asked the prosecution to inform the court on the information it gathered.  Counsel was unable to answer the question directed, but was able to provide a name and contact number. The Judge was clearly perturbed.  Ultimately, the Judge ordered a recess and ordered the prosecution to determine the status of the clearance.

We reconvened at 3:35 after an almost 2 hour recess.  The prosecution stated that the clearance was in review, with no time frame on resolution.  The Judge ruled that it finds that an interpreter is necessary but a specific interpreter is not.  The Judge will allow the February proceedings to continue but that the prosecution has until March 16, 2016, to determine the status of the clearance.

The Commission also heard arguments on Motion 396, a motion dealing with the handling of classified documents. Mr. Ali’s learned counsel James Connell presented the argument.  Mr. Connell speaks with a rhythmic cadence, and he can control a courtroom.  He is one of the better oral presenters we have seen in the case.

The defense argued that they received 8,317 documents marked “classified- pending review”.  They contended that this was not a legitimate status, and that no “review” was being undertaken.  The defense frog marched through the classifications and concluded a temporary or pending review status lasts 90 days.  This has lapsed, thus these documents are no longer classified.  Other defense counsel contended that the government is over-classifying documents.

Prosecutor Clayton Trivett argued that this information has been classified by the appropriate authority and remains classified.

The Judge did not rule on the motion.

Tomorrow’s session

Tomorrow’s Commission schedule includes the 397 motion, a motion filed by the government to consolidate 14 defense motions seeking information on the CIA’s former Rendition, Detention and Interrogation Program (a/k/a torture program).  Due to the size, scope and importance of this motion, it should be an interesting day.

Friday

Friday’s session will be a closed session. The NGOs will not be permitted to attend. This gives us an opportunity to catch up on our research and blogging.

Evening Meeting – Wednesday

In the evening, we had the opportunity to go to the NGO lounge and get some work done.  At 5:30, we had a meeting with the attorneys of the Hawsawi defense team.  We met with learned counsel, Walter Ruiz, two assigned JAGs, civilian defense attorney (and former JAG) Suzanne Lachelier, and some of their staff.  They explained their roles, some of the challenges attorneys face in death penalty litigation and some of the unique challenges in this case. Of particular interest were some of the challenges faced by the female attorneys on the team.  They were down to earth and we were grateful for their insight.

 

Paul Schilling, J.D., Indiana University McKinney School of Law

Indiana Deputy Attorney General

NGO Observer, Military Commission Observation Project (MCOP), Indiana University McKinney School of Law

(Posted by G. Edwards on behalf of P. Schilling)