This week I traveled to Ft. Meade, Maryland to observe the pre-trial hearings in the Guantanamo Bay, Cuba criminal case against 5 alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon. The proceedings in the Cuban courtroom were broadcast via “live stream” into Ft. Meade’s Post Theater. The proceedings took place Monday, 22 February 2016.
Rights of Guantanamo Bay Stakeholders
As an NGO Observer I am charged with ascertaining whether the right to a free trial is being afforded at Guantanamo Bay.
The right to a fair trial is a foundation of a just legal system. Often, the defendant is presumed to be the most important and perhaps the only stakeholder. However, the Fair Trial Manual stresses that there are other stakeholders whose rights also need to be considered. The right to a fair trial is not only to be afforded to the defendant but also to the Prosecution, Victims and Victims’ Families, Witnesses, the Press, the Court, JTF-GTMO Detention Personnel, NGO Observes and Others.
During these hearings, which took place on Monday, 22 February 2016, lawyers argued points of law about pre-trial matters. These arguments, called “motions”, focused on three different topics:
- the release of an un-redacted transcript of a public hearing held on 30 October 2016 (the AE400 Motion, filed by the media and joined by the defense);
- to allow expert testimony to show that the touching of a defendant by female guards forces the defendant to relive the torture inflicted by female guards in the past (the AE254 Motion, filed by the defense)
- to return to defendants laptops the government seized (the AE182 Motion, filed by the defense)
Please note that all public documents released by the Military Commission including the motions filed by the parties and unofficial/unauthorized transcripts can be found on the website of the military commission.
AE400 Motion to Unseal 30 October 2015 Transcript of Public Proceedings.
IU McKinney Observer Matt Kubal posted a bit about the background of this motion. Carol Rosenberg, a reporter for the Miami Herald, who dedicates much effort to covering Guantanamo Bay developments, has also written about the motion.
In short, on 30 October 2015 a 9/11 case hearing was held at Guantanamo Bay. Present in the courtroom for the hearing were observers (including a representative of Indiana McKinney School of Law), media, and many other persons without security clearances, and all of these people were aware of all that was said during the hearings. Subsequent to the hearing, Military Commission published a redacted transcript of that public hearing, rather than publish the entire transcript. The Press and Defense argue that the redactions are unconstitutional. The Prosecution argues that there are no constitutional violations.
This motion is an example of an allegation that the right to a fair trial, which is a right afforded the Press, is being violated. The motion dealt with the redaction of information from a transcript of a public hearing held 30 October 2015. The motion was filed by various news outlets. I don’t expect to see the New Yorker, The New York Times, The Associated Press, Fox News Network, and the Washington Post to be on the same side of an issue, but here these news outlets and a handful of others are collectively known as the “Press Movants”. The rights implicated in this motion are found in the Manual on pages 81, 127, and 183.
This motion is not only a clear example of the rights of a non-party stakeholder, it also presents examples of some of the reasons for the delay that has plagued the progress of the Commission. To an extent, every issue brought to the Judge in these cases is an issue of first instance, as there are no prior decisions issued by this court regarding many issues.
Arguments by Press Movants and Defense
The Press Movants, who were represented by non-party counsel Mr. David Schulz, argued that their 1st amendment right had been violated because they were denied access to public information when the Military Commission published a redacted transcript of a public hearing held on 30 October 2015. Mr. Schulz argued that “there can really be no serious doubt that the First Amendment, the constitutional right of the public to inspect that record applies to these transcripts.” Unofficial/Unauthenticated Transcript-The R.M.C. 803 session called to order at 0902, 22 February 2016. Lines 1-3, pg 10614.
Furthermore, Mr. Schulz argued that, among other things, the government has gone to great lengths to prevent the release of classified information both before the start of any hearings but also during, with the implementation of the 40 second audio delay and redlight system. However, once the information is released to the public after passing the implemented filters, the removal of such information from the record after the fact is unconstitutional.
Another part of the argument put forward by the Press Movants was that the government actually released two versions of the transcript. The first had entire pages redacted while the second had significantly less redacted information. The defense discussed both versions to show that the redactions could not have been narrowly tailored and were unjustified in the first redaction. Accordingly, the argument continued, it is likely that the redactions in the second version are also not justified.
As stated above, the motion was filed by Press organizations, however it was also joined by the defense. The Press Movants based their argument on a violation of the first amendment, while the Defense based their argument on a violation of the sixth amendment. According to the Defense, the sixth amendment guarantees a defendant’s right to a public and open trial. The government can impinge on this right but only if it has an overwhelming interest in keeping the information from the public. The Defense argues that the government is not able to meet that standard. (Mr. al Baluchi’s Motion to Join Press Movants’ Motion to Unseal 30 October 2015 Transcript of Public Proceedings, pg 2) The arguments by the Defense in this instance were made by Mr. Perry. Mr. Perry mentioned that the Defendants’ rights as enumerated in the sixth amendment were violated not only because of the limitation on the right to a public and open trial but also because the Defense relies on the Commissions’ transcripts “every day.” I do not believe this was explicitly stated, but in my mind, the government’s imposition of limitations to the Defense access to documents they require to provide effective assistance to their client, is a violation of the Defendant’s Sixth Amendment Right to Counsel.
Arguments by Prosecution
The Prosecution provided four arguments against the release of the previously redacted information.
- Prosecution argued that the unofficial/unauthorized transcript is not a Judicial Document, so the redaction after the fact is fully authorized.
- Prosecution argued that the redacted information was redacted because it is classified. If someone determined that this information is classified, they did so in the interests of national security. Furthermore, the person designating certain formation classified has a broader view of the effect of the information on national security. Accordingly, the prosecution gave little weight to the argument that they may have waived their right to protecting any classified information by not raising the issue during the 30 October 2016 hearing.
- Prosecution also argued that because the second release contained less information designated as classified, the redactions were indeed narrowly tailored.
The Judge asked the prosecution what they think the best way forward is, which leads me to believe that he will not order the government to release the redacted information.
Logistical/Administrative Hurdles related to the redacted transcript motion
Before the start of the substantive evidentiary hearings, the parties presented arguments on whether Mr. Perry, one of the defendants’ attorneys, should be allowed to present arguments before the Judge. Mr. Perry was a government worker for over 12 years and has a secret security clearance, but does not have the proper clearance to argue before the Judge in Guantanamo Bay on behalf of the defendants. For one reason or another paper work was not processed and clearance was not obtained before the hearing. Mr. Perry and his team applied for the proper clearance in June 2015. The judge ultimately allowed Mr. Perry to argue but only on this particular motion. Mr. Perry was only allowed into the court room to present his arguments and had to watch the rest of the proceedings from the viewing room which as a 40 second delay. While Mr. Perry was able to argue before the court in this instance, obtaining required security clearance causes delays in the resolution of these trials.
Another example of a reason for delay in the resolution of these trials can be found in the substantive discussion of the AE400 Motion when the Judge asked if he even had the authority to question the decision by the executive branch to make certain information classified. The Judge pointed out that there is a high standard to mark information classified, and he is not sure if he is in the best position or even has the authority to question that determination. One reason for the ongoing pre trial hearings is to determine exactly what rights should be afforded to stakeholders’, including the rights/authorities of the Court and its Judge. I would like to note that I do not show this example to critique the court or the progress made, but merely to show that a judicial system without precedent does not function as efficiently or timely as one with decades of precedence and established procedures.
Mr. Nevin, counsel for Khalid Sheikh Mohammed, brought up an incident he believes occurred in 2012. Mr. Nevin recounted that in 2012, he was speaking before the Judge when the red light went off. The red light is an indication that classified information is being released and if the light goes off the hearings are stopped. Mr. Nevin stated that when the red light went off, he was not discussing classified information. Neither the Judge nor courtroom staff activated the light, meaning that someone outside of the courtroom must have activated the red light. It was discovered, according to Mr. Nevin, that the CIA, viewing the hearing from another location had the power to, and did, activate the light. The Military Commission then disabled the ability of out of courtroom CIA viewers to active the light and restrict the information that leaves the court. Mr. Nevin reminded the Judge that the Judge was not happy about the possibility of someone outside the courtroom restricting the release of information, implying that the Judge does have the authority to determine what information is to remain public.
This hearing was based on a motion to reconsider a previous Order denying a request by Mr. Nevin, learned counsel for Khalid Sheikh Mohammed, to bring in an expert witness to testify as to the religious and cultural norms behind the pain Mr. Mohammed experiences when touched by female guards.. While, the focus of the Defense was that the Judge used a wrong standard in making his earlier ruling, I was more intrigued by the discussion of the use of an expert witness. The Defense would like to bring an expert witness to testify that female guards’ touching of the Defendants previously tortured, and specifically sexually abused by female guards in Guantanamo during torture, forces the Defendants to re-live the experience.
AE182 Motion-Government Return of Laptops to Defendants
Defendants had access to laptops between 2008 and 2010. They did not have counsel during that period, and the government provided access to laptops because the use of laptops would provide a better opportunity for Defendants to defend themselves. The government seized the laptops in 2010 after Defendants received legal representation. The defense stated that the Judge has issued three previous Orders requiring the return of the laptops to the Defendants and again asked the Judge to enforce his Orders. The Prosecution argued that they released the laptops to defense counsel, and defense counsel is allowed to give the laptops back to Defendants as long as they follow certain security protocol. Defense counsel summarized the prosecution’s strategy in the following way:
“The judge intends for you to get back the computers you had in 2008-2010, but before we do that we are going to break them, and the reason — the way we’re going to break them is in compliance with security protocols that have just been miraculously developed by our good friends at Joint Task Force Guantanamo Joint Detention Facility.” Unofficial/Unauthenticated Transcript-The R.M.C. 803 session called to order at 1331, 22 February 2016. Lines 11-17, pg 10794.
This hearing was the only one where I sensed any hostility or aggression between counsel for both parties. Counsel for Defense was combative and attacked the motive of the Prosecution. The Judge expressed confusion with respect to some of the underlying facts and it was my impression that both sides were trying to hide the ball. This motion shows that not only are there logistical and administrative obstacles to the progress of the hearings but that, like in any other court, strategy and the adversarial structure also play a role in the delay.
Personal Observation and Experience
I drove through the inspection entrance at Ft. Meade around 7:15 am. When asked why I was coming I told the inspectors I was here to observe the 9/11 hearings. They seemed to have no idea what I was talking about and asked a few additional questions. Full disclosure, I became a bit nervous after they started asking additional questions. I started to think it was some sort of test/screening process. I now think they genuinely did not know what I was talking about. Ft. Meade is a huge base and Post Theater, where the live stream is shown, is a very small part of it. While the 9/11 hearings are of extreme significance to some, it is perfectly reasonable that others would not be aware of the place, time, and substance of related pre-trial evidentiary hearings occurring in Cuba and being “live” streamed to a small theater in Maryland. I notified Professor Edwards of my arrival and took some photos of the theater and a nearby park.
I was inclined to drive around the base but wanted to make sure I was able to get into the theater when it opened. One of the day’s hearings dealt with a motion filed by the press. I was concerned that the theater will be filled with media types. Turns out my fears were not justified as no one arrived until right around 8:30 and at a maximum there were about 16 people at any given time. I talked to an employee of the theater after the hearing who mistook me for a law professor. During the conversation I learned that there are usually no more than 20 people in the theater and that Post Theater is reserved for legal professionals and victims/victims’ families. The media observes the hearings from a different location in part, I imagine, to avoid contact between members of the media and the victims/victims’ families. I asked if I could take pictures of the theater when court was not in session; the answer was a resounding “no”.
The drive home was an experience in and of itself. I finished listening to the Guantanamo Diary, a book written by a current GITMO detainee. I took a break to listen to the Pentagon Press Briefing on the closure of Guantanamo Bay as I drove past the site the Flight 93 crash.
Leontiy Korolev, JD 2012, Observer
Many of the ideas above are based on my memory and understanding of the 22 February 2016 Hearings and related motions and transcripts. The foregoing is my opinion in my own personal capacity, and my blog posts and other comments are my own and do not necessarily reflect those of the Indiana University McKinney School of Law or anyone else, for that matter.