Guantanamo Bay Hearings Day 1 — 9/11 Case

: 9/11 lead defendant Khalid Shaik Mohammad, in the Guantanamo Bay courtroom. He was not present for the morning session, but was present for the afternoon session (Sketch by Janet Hamlin)

I rolled out of bed at 5:30 am this morning, and was driven from my Guantanamo Bay tent to breakfast at 6:30 am at the Gold Hill Galley. At 8:15 am, the other observers, our escort and I walked, as a group, the 100 yards or so over at from our camp to the courtroom to arrive at the first day of the hearings plenty of time prior to the scheduled 9am start time. We made our way through security (similar to taking a flight, but with no electronics allowed) and into the viewing gallery in the courtroom.

We viewed the hearings live behind a sound-proof glass, but the audio is on a 40 second delay to allow the government to cut the audio if any confidential information is revealed. There are video screens hanging down from the ceiling that show a video feed that matches the 40 second audio delay. There is a red light in the courtroom next to the judge (similar to the light that illuminates when a goal is made) that lights up if confidential information is revealed. If that occurs, the hearing is stopped and the viewing gallery is cleared. The 40 second delay can lead to somewhat as, for example, we hear the all rise from a guard in the viewing room with us in real time when the judge rises to leave at the end of a session when the judge is leaving the room, but via the video and audio feed, we are still hearing the judge or counsel speak.

At one point Mr. Schulz, who was at the hearing to argue on behalf of the press movants regarding AE400 left the courtroom to return to join us in the gallery after addressing the court (he did not have a security clearance to stay in the court room), but, because of the delay, the judge was still addressing him via our feed (despite that being 40 seconds earlier). He heard this and started rushing back out of the gallery only to realize what had happened before he re-entered the courtroom. He smiled sheepishly and muttered that he thought the judge was addressing him as he made his way back to his seat.

A Brief Summary of Substance

Khalid Sheikh Mohammed (KSM) was not present at the morning hearing, but he did come in the afternoon. We were not told any particular reason why KSM was not present. Walid Muhammad Salih Bin Attash was not present either and stated that he would not come to the hearing because Ms. Bormann and Mr. Schwartz were still his attorneys.

I was able to witness what I believe is a first at the Military Commissions: a motion filed by a third party (the press) from outside the Military Commission system. On Wednesday, I will witness another rare event; one of the 9/11 defendants, Mr. Bin al Shibh, will testify regarding to external sounds and vibrations he claims has been subjected to despite an order from the Military Judge prohibiting such actions.

At this point it’s hard to imagine this case making it to trial anytime soon. The current schedule for the hearings are in two week blocks every two months and there are many issues to litigate. The case is still in discovery and, for example, we spent about half the day today listening to the defense argue that the prosecution gave their clients broken laptops and this is an issue in which both parties are in relative agreement. Both parties agree that the defendants should have laptops to assist them in understanding and to expedite the case. The disagreement lied in whether or not certain restrictions such as disabling the CD/DVD drive placed on the laptop violate the Judge’s prior order to return the laptops to the defendants or whether Government can and/or should provide the laptops with restrictions decided on by the Joint Task Force. In addition, the Government’s AE 397 motion would delay production of discovery by the Government until October 2016. Once that discovery is received, the defense will need ample time to review it. That discovery will undoubtedly lead to more discovery and/or motions related to the new information obtained and the process continues. The closure of Guantanamo Bay’s detainee detention facility is not out of the question as just today the Pentagon committed that they would send Congress their plan to close the Guantanamo Bay Prison Facility.

Chief Judge Pohl originally presided over both the al Nashiri case and the 9/11 case.

The unofficial, unauthenticated transcript for the day is available on the military commmissions website, but, generally, the day was spent discussing:

– AE400 (the motion filed by members of the press moving to unseal a transcript of a

public hearing of the Military Commission which was held on the 30th of October, 2015),

– a request for reconsideration regarding bringing in an expert witness to testify on the issue of female guards touching the defendants in the normal course of their job in motion AE 254YYY,

– AE 254Y, a request for the judge to order that the defendants not be subjected to physical contact by female guards as such physical contact is a violation of their rights under the Religious Freedom Restoration Act.

and

– AE 182, a request for an order that the government comply with a previous order to return laptops to the defendant. Defense alleges that the government failed to return the computers that the defendants previously had as they were returned with certain restrictions on their functionality that make them useless.

Plans for the Remainder of the Week

The judged ended the hearing laying out he plan for the week accordingly (summaries are taken from:

1. AE 112 defense motion for discovery & related AE 397 (also discussed last week) filed by the Government to consolidate several motions related to discovery of information related to the CIA’s Torture program. Approval of the consolidation would delay production of Government discovery to October 2016.

2. AE386 Defense Defense Motion to Invalidate Touhy Requirements as Non Reciprocal Discovery (to include filings in the AE 350 series of motions addressing Touhy) Mr. al Baluchi requests the Military Commission determine that Touhy regulation (which governs whether and how a government agency witness, from an agency that is not a party to the litigation, may be subpoenaed to testify) does not apply here since the regulation amounts to a requirement on the defense that does not apply to the Prosecution, and therefore violates the Due Process Clause and the Detainee Treatment Act.

3. AE018 Series: 11 motions on the docket under the AE018 umbrella:

AE018EE Defense Defense Motion to Compel Discovery Responsive to Mr. Mohammad’s Request for Discovery Dated 14 March 2014; The Defense requests the Military Commission compel the production of all documents contained in Mr. Mohammad’s Request for Discovery on 14 March 2014.

AE018FFF Defense Defense Motion to Compel Production of Witnesses for Evidentiary Hearing on Motions in the AE018PP Series; Mr. al Hawsawi requests the Military Commission require that the Government produce witnesses in the AE 018PP series of motions, which includes the relevant JTF personnel involved with the seizure of privileged legal materials.

AE018W Defense 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.

AE018EE Defense Defense Motion to Compel Discovery Responsive to Mr. Mohammad’s Request for Discovery Dated 14 March 2014 The Defense requests the Military Commission compel the production of all documents contained in Mr. Mohammad’s Request for Discovery on 14 March 2014.

AE018FFF Defense Defense Motion to Compel Production of Witnesses for Evidentiary Hearing on Motions in the AE018PP Series Mr. al Hawsawi requests the Military Commission require that the Government produce witnesses in the AE 018PP series of motions, which includes the relevant JTF personnel involved with the seizure of privileged legal materials.

AE018Y Government 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 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.
AE018BB Defense Defense Motion to Compel Paper Discovery in Accordance with Privileged Written Communications Order Mr. bin ‘Atash requests the Military Commission to order the Government to provide a copy of all paper discovery materials releasable to Mr. bin ‘Atash, and for the Privilege Team to deliver that to Mr. bin ‘Atash directly.
AE018KK Defense Defense Motion to Invalidate Non-Legal Mail Restrictions Unrelated to Legitimate Penological Interests The Defense requests that the Military Commission order JTF-GTMO to stop refusing to deliver written materials from counsel to Mr. bin ‘Atash on the ground that such non-legal materials are written in Arabic or are too voluminous. Refusing on that basis requires the defense to translate every page of Arabic material.

AE018MM Defense Defense Motion to Compel Reasonable Privilege Review Team Hours of Operation Mr. bin ‘Atash seeks an order from the Military Commission requiring the Privilege Review Team (which reviews legal and non-legal written materials sent to the accused from defense counsel) maintain reasonable weekend hours for the immediate processing of deliverable materials.

AE018PP Defense Defense Motion for Government to Show Cause For Its Violation of AE018U The Defense requests the Military Judge Order the Government to show cause for its violation of AE 018U and thoroughly review a new breach of attorney-client privilege by JTF-GTMO in February 2015.

4. AE 391: AE 391 Government 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.

Also, for Wednesday morning: AE 152LL: Ramzi bin al Shibh can testify on noises/vibrations this Wednesday (AE 152LL)