Rather than summarize solely what we were told from Team Hawasawi, I will take this opportunity to provide a brief summary of several points we heard again and again when we spoke with defense counsel at the barbecue earlier this week, at the meeting this evening with Team Hawasawi and in court over the past week. Following is a collection of my impressions and is not a direct quotation of any single member of the defense counsel.
- Classification and National Security Issues Concerning the Dissemination of Classified Information vs. The Government’s Desire For and Constitutional Requirements For Transparency, a Full, Fair and Transparent Discovery Process :
- Security clearance issues and access to information has been a recurring theme
throughout this week. The prosecution alleges that they are seeking to protect classified information which if released could damage national security, while the defense claims that the prosecution is hiding the ball by unnecessarily redacting documents, not doing all they can to assist the defense in obtaining security clearances (and actively standing in their way in some cases) and the defense alleges that the prosecutions claims of protecting national security are a impenetrable blanket excuse to not provide near the items requested in discovery that the defense claims they are entitled to. The prosecution argued generally against the judge being involved as the arbiter of disputes regarding the decision to or to not release classified documents to the defense and asserted they are turning over documents as fast as they can. - Each defense team has between 15-16 persons on that team at any given time. However, we learned via oral argument in court that each team is limited to 10 person with the clearance required to view many classified documents at any given time. During the hearings this week all of the teams had a clearance issue with one or more of their team members access classified evidence and there were several members of the defense teams that were not allowed in the courtroom (they sat in the gallery with the observers, victim’s family members and others without clearance). The defense argues that delays in processing classification reviews of current and future team members are preventing them from providing adequate representation and that the prosecutions effectively has veto power on what evidence they believe the defense should be entitled to. Furthermore, the defense argues that the prosecution has shown that when it serves their interests, they are able to obtain security clearances for defense team members in a very short amount of time (a clearance was obtained Thursday in 29 minutes with help of a phone call from Chief Prosecutor General Martins after a defense team member’s lack of clearance would have delayed the hearing).
- According to the defense, the prosecution’s redactions and refusal to provide documents based on national security concerns are an impenetrable blanket excuse to not provide discovery. The prosecution has argued that the judge is not equipped to make classification decisions and would, in some cases, cut the judge out of objections to over-classification in the discovery process (this would potentially allow the prosecution to be the final arbiter in some discovery issues and provide a fraction of the documents requested).
Chief Prosecutor Brig. General Mark Martins
- For the prosecutions part on nearly all of these issues, they argued that they are satisfying their duties under the discovery rules while taking the steps they are required to take to protect classified information that, if released inappropriately to the wrong people, could damage national security.
- Issues of security and transparency arose several times this week regarding transcripts of public hearings that were redacted after the fact to remove some of the statements that were publicly made, but were later decided to contain classified information. Members of the Press and the defense moved in AE 900 on Monday for the court to release the full unredacted transcript on grounds that not doing so violated the 1st Amendment and 6th amendment. Tuesday, the day after the defense and members of the press made this argument, the Military Commission’s website failed to post the unofficial, unauthenticated transcript that is normally posted the same day of the hearings here. The next day the prosecution moved to seal several exhibits discussed and the defense pre-preemptively objected to an after the fact redaction. Mr. Connell, learned counsel for al Baluchi objected immediately. I have not heard yet whether members of the press or the defense has filed any motions regarding this issue, but unless it was worked out in the closed session on Thursday, I expect another motion along the same lines of AE 900 will be filed in the upcoming weeks regarding this new after the expected retroactive redaction.
Chief Judge Pohl originally presided over both the al Nashiri case and the 9/11 case.
- Security clearance issues and access to information has been a recurring theme
- A New Judicial System: Several defense members mentioned that there are inherent challenges in the military commissions system because it is such a new judicial system and because it was created after the crimes took place and after the accused were captured. They also mentioned that, from the defendant’s perspective, the Military Commission system appears to be a judicial system created and designed specifically to lead to their conviction and eventual execution (rather than an independent arbiter to reach a determination of guilt or innocence and, if guilt is found, to mete out an appropriate punishment).
- Ideal Choice of Law/Forum? When asked, in a perfect world, what forum and/or choice of law would the members of the defense choose for their defendants, none of them suggested the military commissions or in Guantanamo Bay. Their answers were generally that they would choose a U.S. Federal Court on the east coast in the USA (New York and the Washington D C. area were both brought up, but a couple of the attorneys chose a military court in the USA (at Quantico and in New York). One of the attorneys added that, in that ideal world, they would want a separate trial for their defendant divorced from the other four current defendants.
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Ramzi Bin al Shibh, a defendant in the 9/11 case, testified Wednesday about conditions of his detention at Guantanamo Bay, Cuba
Conditions of Confinement: Defendants have asked their attorneys to seek relief that will address their current condition of detainment and health. In some cases, the attorneys suggested these were their primary concerns. For example, defendants sought the return of their laptop computers, none of the defendants want to have female guards touch them, the defendants and defense attorneys would like to have more freedom to transmit legal and non-legal mail to and from their client and to third parties, Mr. Hawasawi is in need of surgery & medical care, Mr. Bin al Shibh wishes the judge to stop alleged vibrations and noises in his cell and Mr. al Baluchi would like to have post-torture/PTSD counseling.
- Ethical Obligations: The attorneys each have different ethical obligations depending on the agency that is licensing them. For example, learned counsel for Attash, Cheryl Bormann, is licensed by the Illinois State Bar Association and so her ethical rules are different than her co-counsel Army Maj. Matthew Seeger who is bound by the the Army’s Rules of Professional Conduct for Lawyers.
- When Will it End?: Estimates of when this case would go to trial varied from 5 years to not in this decade to not anytime soon. No one seemed to think this case would be moving to trial in a speedy fashion (though the right to a speedy trial is expressly not awarded to these defendants via the Military Commissions Act of 2009).
Conclusion
On a personal note, I fly from Guantanamo Bay to Andrews Air Force Base tomorrow morning early and I will drive back to Indianapolis soon thereafter. I hope to post a few more times in the next week or so.
Allow me to take this opportunity to thank the Program in International Human Rights Law’s Military Commission Observation Project at Robert H. Kinney School of Law and Professor George Edwards for allowing me to spend the last week viewing the 9/11 hearings at Guantanamo Bay, Cuba. Over the past week I was able to explore many of the issues surrounding the Military Commissions, the Guantanamo Bay facility from the perspective of an observer and to report to you my findings. I found the experience engaging and though-provoking. I am quite happy that I was selected and that I agreed to participate.
By Matt Kubal, JD, Indiana University McKinney School of Law