Yesterday, I monitored the first day of this week’s pre-trial hearings in the case against the alleged 9/11 masterminds. I viewed the proceedings via secured video link at the McGill Training Center at Fort Meade, Maryland, and represented the Indiana University McKinney School of Law’s U.S. Military Observation Project.
A Defendant’s Defiance
“I don’t understand,” Ramzi bin al Shibh snapped at Military Commission Judge, Army Colonel James L. Pohl, upon being asked if he understood his rights to be present or absent at the hearings against him and four other alleged masterminds of the 9/11 Word Trade Center and Pentagon attacks.
bin al Shibh, who allegedly helped hijackers find flight schools and enter the United States in addition to helping fund the operation, has alleged that the guards at Guantanamo Bay’s Camp 7 have been tormenting him and keeping him awake by shaking or vibrating his room and bed despite Judge Pohl’s order to cease the alleged conduct.
At the beginning of each week of pre-trial hearings, the 9/11 military judge requires each defendant to be physically in the courtroom, and asks each defendant whether he understands certain rights.
“You don’t understand your rights?” Judge Pohl asked bin al Shibh, noting that they had been through similar rights colloquies on other occasions.
bin al Shibh seemed to believe that Judge Pohl was being inconsistent and therefore unfair in enforcing rulings. He appeared to be upset that Judge Pohl could force him to be present at the hearing Tuesday, the first day of the hearing week, but that the guards at Camp 7 did not, according to bin al Shibh, have to comply with the Judge’s orders.
The two had a quick, yet contentious back-and-forth regarding who had to listen to whom.
Near the end of the exchange, Judge Pohl stated that if bin al Shibh “did not understand” his rights, that he would continue to be brought back in front of the court until it was clear that he did understand his rights. Judge Pohl then ordered bin al Shibh—who continued to talk over him—out of the courtroom until after the lunch break. On the CCTV, we could hear bin al Shibh continue to yell at the judge, even after bin al Shibh left his chair and was being escorted outside the courtroom. I learned from our Indiana McKinney observer who was physically in the courtroom’s gallery during the outburst that those sitting in the gallery behind double-paned glass could hear bin al Shibh yelling even after he left the courtroom and was on his way to his holding cell.
Other Defendants Acknowledge Their Rights
The other four defendants, Khalid Sheik Mohammed—who wore a green camouflaged “army” coat, what appeared to be a white Pakol (hat), and a red beard—Walid bin Attash, Ammar al Baluchi (aka “AAA”), and Mustafa al Hawsawiall acknowledged their rights. They all answered “yes” in Arabic when asked if they understood.
Judge Pohl’s Control of the Courtroom
At the beginning of the hearing, and especially during the contentious exchange with bin al Shibh, Judge Pohl appeared to keep his cool, and he allowed all of the accused to speak. To keep control of his courtroom, he could have reacted more assertively and perhaps even had bin al Shibh restrained. But he did not. And, bin al Shibh re-joined the hearing after the lunch break, though it was unclear from the video feed how he had changed his behavior during the remainder of the proceeding, though I did not observe any additional outbursts during the day.
bin Attash Complains
After the exchange between Judge Pohl and bin al Shibh, another defendant — Walid bin Attash — addressed the court and protested his counsel. He raised four points, which he said wanted to make for the record.
First, he said that he did not believe his defense counsel was helpful to him and therefore he didn’t want them.
Second, he appeared to state that no legal mail had been exchanged between him and his defense counsel, though it is not exactly what he was saying. I plan to check the transcript as soon as it is posted and update this blog post.
Third, he stated that he has had no meetings with his defense counsel since last year.
Fourth, he appeared to tell the Commission that the “ill” of the actions he alleged of his defense team, “will make them part of killing me…and part of the government’s decisions,” and that they would be of no help to him. Again, I plan to check the transcript as soon as it is posted and update this blog post.
al Hawsawi’s Motions
After the bin al Shibh and bin Attash fireworks subsided, the defense team for al Hawsawi called witnesses and made motions focusing on the rights of the accused related to material covered by attorney / client and other privileges that was removed from al Hawasi’s Camp 7 cell when a staff member inspected his cell in 2015.
Walter Ruiz, counsel for al Hawsawi, examined two assistant staff Judge Advocates (SJA) who were stationed at Camp 7 during those inspections. Ruiz inquired about what legal materials al Hawsawi is permitted to have in his cell; how those materials are to be marked to indicate that they are protected; where in those cells those legal materials are to be maintained; procedures for when materials are located in the cell and the materials are not in a “legal bin” and are not “marked”; and how all of that comported with Judge Pohl’s order regarding the protection of an accused’s legal documents.
Colonel Sterling Thomas, who represents al Baluchi, questioned the current SJA, known in the hearing as “Major.” It appears as though he suggested that because the accused help with their own defense, the accused need to be able to create their own documents. And, if there were a protocol for giving the accused pre-marked / pre-stamped sheets to use for their work product, guards and others would know that words written on those sheets were protected and not subject to retention or seizure. The lack of a protocol could put defendants at a disadvantage and give the government an upper hand. The lack of a protocol could also tend to diminish defendants’ trust in the process.
I believe that the lack of protocol also might present concerns for the government, specifically regarding guard safety and national security. If pre-stamped / pre-marked sheets are essentially deemed invincible and shielded, then it is possible that those sheets could communicate potentially harmful acts or plans within them.
Furthermore, it was revealed that the translator, who possessed no legal background or qualifications, determined whether the documents were legal in nature. This is a concern for both the government and defense, and it is counter a requirement that an impartial third-party review documents for their safety and legitimacy. If someone must determine that a particular document is protected by privilege, the one who makes the determination about the nature of the words on the page should be trained as an attorney.
al Baluchi’s Motions
al Baluchi’s team focused on allowing access to certain redacted documents. To be sure, the accused have a right to certain classified information, especially if it is being used against them. It’s necessary to the right to a fair trial and the right to have the effective assistance of counsel.
Yesterday’s motions focused on documents with alleged arbitrary redactions; redactions of the specific names of personnel; and some documents which were identical in content but contained different redactions which would arguably unnecessarily burden defense counsel who would need to piece the information together.
Other redactions contained certain incidents involving the accused to which Judge Pohl exclaimed, “He was there! What are we keeping from him?”
Defense counsel argued that in capital cases, it is essential for an adequate defense to be able to confront witnesses for better or worse, and preferred that the military Judge review the redactions to ensure that the information was not material; rather than taking the prosecution at its word.
The government argued the redactions were needed for “force protection” (protecting guards, staff, etc.) and national security.
The hearings illuminated the very fine line that the court must walk in balancing the rights and interests of the accused and the rights and interest of the United States government, as well as the rights and interests of other stakeholders – including, for example, JTF-GTMO personnel, the victim’s and their families, the public, the media and others.
Mike Cunningham, J.D. Candidate (2017)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University Robert H. McKinney School of Law