Wow, What a morning. I just witnessed Ramzi Bin al Shibh, one of the five defendants on trial for the 9/11 attacks, testify on direct (questioned by his learned counsel, Mr. James Harrington. He was cross examined by Mr.Clayton G. Trivett Jr., a reserve navy lieutenant commander representing the prosecution and re-direct will be after lunch. The testimony is regarding bin al Shibh’s motion regarding complaints of vibrations and loud noises/hammering in his cell preventing him from sleeping, writing, etc. The judge had previously ordered any vibrations and loud noises to be stopped. The motion, AE 152LL, is a motion for the government to show cause (arguing that the previous order to stop the noises/vibration was not followed).A few interesting notes from Bin al Shibh’s testimony in this morning’s session:
– Prior to testimony, the Government requested the judge advise Bin al Shibh regarding the protective order protected the release of classified information. The judge denied the request saying that Bin al Shibh is not in a position to determine what material is classified. Harrington responded that he believes he has a way to avoid classified material. He starts by using the publicly available (though heavily redacted) torture report as a guide (references page 75 where the report discusses Bin al Shibh).
– Ramzi took an affirmation (like an oath) over a Koran and testified from the witness stand and both testified and received questions entirely in English. He testified without shackles (the judge pointed this out yesterday and today), but with two security officers facing Bin al Shibh (nearby and to his left).
– Trivett cross examined Bin al Shibh. The consensus amongst the observers were that he had a very tough time controlling Bin al Shibh as Bin al Shibh was often allowed to explain away potentially damaging prior statements.
– At one point Trivett asked Ramzi if he remembers his dreams. Ramzi replied affirmatively. Trivett followed with: “Do you ever dream of the people killed on 9/11?” Defense objected and the objection was sustained immediately.
The red light, just to the right and slightly below the judge was activated today indicating classified information was revealed in the courtroom
– The flashing red hockey light in the courtroom indicating classified and/or protected information had been revealed was activated right as Bin al Shibh, who was describing his detention facility, started saying “when you come into camp…” (we watch live behind sound proof two way glass, but hear on a 40 second delay, so we don’t hear anything classified/privileged). After the light turned on the audio cut off, a standby screen was put up on the monitors (monitors are available that are synced with the 40 second delay) and we were removed from the hearings. Everyone in the courtroom remained in the courtroom and I could see the judge speaking (it looked like he was speaking with Bin al Shibh). After 3-4 minutes, we were allowed back in to the gallery to continue viewing the proceedings.
– At one point Bin al Shibh reminded his attorney to object when the Government Prosecutor asked Bin al Shibh if he was a warrior. The judge advised Bin al Shibh that he had to answer the question unless his attorney, Mr. Harrington, objected. Mr. Harrington then objected and the objection was sustained. This was
– Seemingly out of the blue, the judge asked a follow-up question in the middl e of Mr. Trivett’s cross. He asked if Bin al Shibh felt the vibrations in the room where he and his attorneys meet. Bin al Shibh said yes and then clarified that he felt them when the attorneys are gone.
– At one point Bin al Shibh looked at Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks and said, “Before somebody else was captured I was something special,” he also said. “They tried these things until now.” Bin al Shibh was allegedly a potential hijacker, but when he could not gain access to the U.S. he instead served in a support role.
Exhibits From February 23rd Sealed
I wrote this last post late last night. It turns out that the prediction I made that the transcript might be redacted was true. The hearing started today with the government requesting that the court seal exhibits 112L, 112K and 112M. These exhibits were related to a motion to compel discovery by the defense. Off of memory, my guess as to what the Government would like to protect were exhibits presented by Mr. Connell, Ali Abd Al-Aziz Ali’s learned counsel, related to AE 397 motion to consolidate and AE 112 motion to compel discovery.
To summarize Connell’s testimony yesterday, he used several exhibits to argue that the defense needed to be able to see what was behind redacted sections from several documents. In response to a prior claim by the government that his requests were overbroad and not specific, Connell numbered each of 150 redactions (made by a FOIA officer) in a long document and made arguments as to why each section might be important based on what he guessed might be behind it. The judge eventually cut him off and advised that he gets the point: that Connell is able to provide a specific explanation why he wants each redaction removed. Connell also requested that the court order General Baker, the court’s ethics and compliance officer, to be present at the hearing tomorrow (the judge denied the request).
Regarding the government’s request to seal the three exhibits, the judge ordered the exhibits temporarily sealed pending review in a closed hearing. As of 1 pm on February 24th, the unofficial, unauthenticated transcript is not available either.
If the court orders the documents permanently sealed and/or the transcript is redacted, we will likely have motions submitted making a similar 1st amendment argument made in the future regarding yesterday’s transcript as we had this past Monday when Mr. David Schulz, independent attorney hired by members of the press to argue on their behalf, argued that a redaction of a transcript of a public hearing from last October was a violation of the 1st Amendment Freedom of Speech. Indeed, Mr. Connell of the defense for Mr. Ali Abd al-Zziz Ali, already objected prospectively on this issue. On Monday, the defense also argued that the after the fact redaction of a public Military Commission hearing was a violation of the 6th Amendment Right to a Public Trial.
The Way Forward
Finally, the judge ended by describing the way ahead:
1. re-direct of Bin al Shibh by his defense attorney, Mr. Harrington this afternoon
2. AE 018Y and AE 01W (regarding detainee letters) after that until around 3pm
3. At ~3pm the court will go into a closed session to consider the Government’s motion to seal AE 112 (see above)
4. Friday we will continue AE 018 (11 motions in the series that are up for consideration this week) and then move on tho AE 254 if there is time.
Lunch is over and I am heading back to the courtroom for a 1:30pm start.
Update: Re-direct by Mr. Harrington was short and relatively uneventful. After the testimony, the judge advised that if the defense wishes to call the other two witnesses (originally Harrington had requested to call three deainees as witnesses) he may do so at a later date. Allowing Harrington to call only al-Shibh was Pohl’s stated plan prior to the hearing today.
Following al-Shibh’s testimony, the court returned to AE 018Y and AE 018W regarding letters from the defendants. The issue discussed is what the procedures should be for the defendants to send non-legal/legal and classified/non-classified letters (and each combination of those four categories). Testimony ended with the judge seeming to narrow the issue as to how a legal letter is define and requested that the government provide a more specific request as to what relief they want.
At shortly after 3 pm, the gallery was cleared and the defendants removed for a closed hearing to, among other topics, consider whether or not to discuss the governments emergency motion to seal several exhibits that were presented yesterday.
Tomorrow is a closed session. My next and last day of hearings this week will be on Friday.
By Matt Kubal, JD, Indiana University McKinney School of Law