This evening (23 February) I have for you a correction from my last post, a few notes about the hearing in the 9/11 case today, some thoughts regarding a missing transcript from today (perhaps temporarily), a clarification of a comment I made in my last post and a preview of what we have to look forward to tomorrow and the rest of the week.
I mentioned in my last post that I believed that Mr. David Schulz’s oral argument on behalf of members of the press was the first time a third party movant (the Press in this case) had filed a motion and presented oral argument before the court. I was advised this evening that this was not the first time that Mr. Schulz has argued on behalf of he press. You can read about one of the previous times in 2012 when Mr. Schulz argued before the judge in the Nashiri case here.
A Missing Transcript?
Also of note is that, as of 11:30 pm on February 23rd, the daily unofficial/unauthenticated transcript from the hearings today have not been posted. This is interesting as the transcript is usually posted very soon after the hearings are completed for the day. The AE 400 motion filed by the press and argued on Monday was in response to a similar scenario on October 30, 2015, where the government failed to immediately provide the unofficial/unauthenticated transcript and, when they did provide it, redacted a significant portion of the transcript from the hearing that, on the day of the hearing, had been heard by observers, members of the press, victims family members, others in the gallery at the court room and by those watching via the video feed at Ft. Meade. This very well may be a technical error of some kind, but if the transcript for the hearing today (February 23rd) is posted in a redacted form at a later date, I suspect the press would file another motion objecting to the redactions making the similar argument as they made for AE 400. The judge has not yet ruled on AE 400. You can read the arguments made in support of AE 400 made Monday morning by Mr. Schulz on behalf of the press (February 22nd) here
A Clarification and al Shibh’s Expected to Testify
My clarification from my last post is that, if Ramzi Bin al Shibh (al Shibh) testifies tomorrow (and i suggest that is still an if), it will be the first time a defendant has taken the stand to testify in this case. At the end of the hearing today the judge advised the court that al Shibh would not be shackled or physically restrained while testifying and his testimony would be limited to the issue of external sounds and vibrations while detained pertaining to AE 152LL only. The reason why I say if he testifies is because at the end of the hearing al Shibh’s attorney requested that he be able to testify from the chair where he normally sits, next to his counsel, during the proceedings. Judge Pohl denied the request and said he will be required to take the stand like any witness. If the request to speak at his usual seat in the courtroom is based on any hesitance by al Shibh to testify, then it is possible that he will have cold feet and will not take the stand.
Here is the summary for AE 152LL from the public Motions Hearing Summary:
AE 152LL; Filed by the Defense
Title: Emergency Motion for Show Cause Why The Government, JTF Camp Commander and JTF Guard Force Members Should Not Be Held In Contempt
Brief Summary: Mr. Bin al Shibh continues to be subject to external sounds and vibrations while detained, despite order from the Military Judge prohibiting such actions by Joint Detention Group and Joint Task Force staff. As a result, Mr. Bin al Shibh requests the Military Judge order the relevant staff to show cause why they should not be held in contempt.
After Bin al Shibh’s Testimony Tomorrow (Wednesday, February 24th)
The remainder of the day tomorrow, February 24th, will likely be spent continuing the AE 018 series of motions which we started at the end of today with arguments on AE 018Y. The judge indicated that after Mr. Bin al Shibh’s testimony tomorrow, the court would continue with AE 018Y and then move to AE 018W.
Towards the end of the hearing today Chief Prosecutor General Martins, Mr. Connell (attorney for Mr. Ali Abd Al-Aziz) and Mr. Nevin (attorney for Khalid Sheikh Mohammed) presented oral argument on AE 018Y, Government Emergency Motion for Interim Order and Clarification that the Commission’s Order in AE018U Does Not Create a Means for Non-Privileged Communications to Circumvent the Joint Task Force Mail System. Here is the brief summary from the Motions Hearing Summary document we were provided:
The Government seeks an Emergency Motion for an Interim Order following accusations of unauthorized distribution of materials that did not receive sanctioned review by JTF-GTMO.
On AE 018Y today, the Government claimed the defense facilitated unauthorized distribution of materials that did not receive sanctioned review by prison officials (Joint Task Force – Guantanamo). The defense argued that the Government’s characterization is incorrect, that the mail was reviewed and determined not classified prior to being sent, that they were not restricted from sending it.
Up third tomorrow will be AE 018W. Here’s the summary from the Motions Hearing Summary document we were provided:
Filed by: Defense
Brief Summary: Joint Defense Motion to Amend AE 18U, Privileged Written Communications Order
The Defense seeks an order from the Military Commission amending the Privileged Written Communications Order (AE018U), which governs how defense counsel and the accused can communicate in writing.
There are several other motions outstanding in the AE018 series (11 total in the Motions Hearing Summary document we were provided). Per Judge Pohl at the end of the day on Monday, next up in open session after the AE 018 series of motions is AE 391:
Here’s the summary from the Motions Hearing Summary document were provided
Filed by: Government
Brief Sumary: Government Motion For the Admission of Death Certificates Into Evidence
The Government requests the admission in evidence now, in advance of the as yet unscheduled trial, of the death certificates of the victims listed in the charge sheet.
Thursday, February 25th, remains scheduled as a closed hearing, so if the court either doesn’t finish AE 018 and/or get to AE 391 tomorrow, I expect those motions will be addressed on Friday.
Options Other Than The Military Commission?
Finally, I have had a few people e-mail me asking what judicial forum might be preferable to the Military Commissions. I would preface my opinion with a caveat that the it is clear from watching the attorneys, judge and court staff operating in the Military Commission in this case are incredibly talented and dedicated professionals. I and my fellow observers have been nothing but impressed with their ability to excel in a very difficult situation.
I touched on some of the theories for what causes delays and challenges in the Military Commission hearings in a previous post. To answer the question, my personal opinion would be to move the hearings to a federal criminal court or a military court in the USA. Another alternative would be for the USA set up a military or special US District court down here. Capital cases take a long time in the USA as well, but trying this case in a judicial system with more established rules, legal precedents and procedures without the need to transplant all of the members of the court to Cuba for each hearing should be significantly faster and more efficient than trying the case in the Military Commission at Guantanamo Bay. This is also the suggestion that several of the attorneys practicing in the Military Commissions attorneys offered when asked a similar question.
On a personal note, I enjoyed some tasty jerk jerk chicken from a little outdoor restaurant by the water. It was ~75 degrees this evening with a nice breeze. Before I returned to the NGO lounge to write this post, several of my fellow observers and I spent the rest of the evening enjoying the lovely weather at a picnic bench in front of our tents in Camp Justice.
By Matt Kubal, JD, Indiana University McKinney School of Law
Posted by G. Edwards on behalf of Mr. Kubal