The Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law nominated me, and the Pentagon confirmed me, to travel to Guantanamo Bay, Cuba to monitor U.S. Military Commission hearings in the case against Khalid Shaikh Mohammed and four other alleged masterminds of the 9/11 attacks.

This was my fourth scheduled trip as part of Indiana’s project, and my second trip to Guantanamo. I was originally scheduled to observe at the beginning of October in the case against Hadi al Iraqi, an alleged high-ranking member of al Qaeda, but as reported by Carol Rosenberg in the Miami Herald, the hearings were canceled due to a medical issue experienced by Hadi.

Breaking news concerning the case U.S. v. al Nashiri

A couple of days before we arrived at Guantanamo, we heard news that 3 members of the defense counsel for Mr. al Nashiri, who is charged in a separate death penalty case, were released from their defense roles by Brigadier General Baker, chief defense counsel. Mr. al Nashiri is accused of orchestrating the attack on the U.S.S. Cole in late 2000, killing 17 U.S. sailors.

The three members of the defense, including learned counsel Mr. Rick Kammen, quit earlier this month over a “secret ethical issue” that the defense claimed compromised attorney-client privacy. A learned counsel is an attorney with experience in capital cases, and whose representation and presence is a requirement for these proceedings. Today, judge Air Force Col. Vance Spath scheduled a contempt hearing to be held tomorrow Wednesday after the three members of the defense refused to appear at war court. Read more at the Miami Herald.

Arrival at Guantanamo

We arrived at Guantanamo on Saturday, 14 October and were immediately escorted to our lodgings where we quickly unpacked and began to settle in. That afternoon, our

escort drove us to the Navy Exchange where we were able to stock up on snacks for the week, since our dining options are limited mostly to the galley (cafeteria food) or fast food (Subway, McDonald’s, Starbucks). We obtained our security badges and were instructed to wear any time we were home at Camp Justice.

 

Monday, 16 October

We entered the courtroom and were assigned seats in the gallery, which is separated from the courtroom by thick glass. There is a 40-second sound delay for the purposes of national security, where the judge is able to cut the feed to the gallery and the CCTV in case of accidental or otherwise classified discussion.

The hearings began promptly today with the defense counsel advising Judge Pohl that there were motions in the works to address the issue of possibly compromised meeting spaces after the developments concerning Mr. Kammen and the al Nashiri case came to light prior to the week’s hearings. Judge Pohl said he wasn’t certain that Brigadier General Baker has the authority to disband the trial team.

The defense also raised the issue of claims of lack of resources by the Joint Task Force (JTF) that directly affect the meetings between counsel and defendant. The Joint Task Force is in charge of the operations at Guantanamo, including detainee operation logistics and detainee transfer/supervision. Since the typical meeting spaces will likely be investigated after the developments in the al Nashiri case, the question concerned where the next most adequate space to meet with the defendants will be.

The defense raised a discovery issue — their ongoing request for Brady material. Brady refers to the case Brady v. Maryland, where the court held that the prosecution must turn over any evidence favorable to the defendant, or, exculpatory evidence (also known as “Brady material”). The Government responded that the defense has been provided with any material they (the Government) deemed relevant, and that the defense can request more discovery. The defense argued that the purpose of discovery is not to have to hunt for evidence. The Government referred to a “voluminous discovery” request by the defense, and said that the Government has no obligation to “spoon-feed” discovery to the defense.

The unofficial transcripts for Monday’s hearings may be found here.

Court recessed for lunch at around 1:00PM and the rest of the session was closed to observers.

Tuesday, 17 October

There was no court today, so the NGOs took the day to sightsee, relax, and catch up on work.

Wednesday, 18 October

The day began with news of government-seized attorney-client privileged material

The hearings resumed Wednesday morning, and started with the news that the JTF had seized the defendants’ laptops which the defense counsel argued contained attorney-client privileged material. Judge Pohl asked the Government to explain why the JTF seized the material. The Government stated that they were working on filing a response to what had occurred that morning and why.

The first motion was picked up from Monday at the end of the session concerning an issue of metadata that was brought by the defense. The defense argued that the prosecution turned over photographic evidence with all metadata stripped off. Metadata is the information that attaches to a digital photograph, including location, date, and time of the photograph, and depending on the sophistication of the equipment used, could even reveal the name of the person who took the photograph. The defense argued that such information is important to their case. The Government responded that the metadata was not relevant, and that the Government will seek to classify the information if the Judge orders that the government turn over metadata to the defense.

The defense also raised a motion to compel the Government to release information regarding certain torture sites, including information on the confinement buildings. The defense sought any architectural drawings, contracts, agreements, etc. pertaining to the buildings. The defense argued that prison architecture can typically reveal a lot about the conditions under which the detainees were held. The actual sites were destroyed or decommissioned, and the defense argued this information may help draw the picture of the conditions under which the defendants were held while at black sites around the world.

The Government responded that the defense could obtain this information from the defendants themselves, and that any information remaining on the black sites is classified “across the board”. The Government argued that while the information may be material to the defenses’ preparation, it is inapplicable to the case because the Government is not using building logistics in their case against the defendants.

The unofficial transcripts for Wednesday’s hearings may be found here.

The session ended late in the afternoon, at around 5PM. The gallery emptied at the close of session, but the NGO observers stayed behind to discuss the day’s events. During this time, we observed one of the four alleged war criminals rise and begin the Islamic Call to Prayer as the four other men stayed seated and continued discussion with their defense

teams. Even though we had the thick glass separating us from where he was standing in the courtroom, we could still lightly hear the sound of the call. It was a surreal moment for the observers, and one I will never forget.

 

Thursday, 19 October

Today’s hearing was delayed by over an hour because of yesterday’s JTF seizure of the defendants’ laptops that contained attorney-client privileged material. The facts were somewhat unclear, but I believe that the laptops of four of the five defendants were seized as the defendants were on their way to court either the hearing or meeting with their counsel, and one of their materials was seized from the defendant’s cell. The Government noted that they will file notice with an explanation of why the seizure happened, and that the facts will justify the seizure.

This has been the third major seizure of attorney-client privileged material since this case started. The defense asked the judge for transparency in this process and the Government responded that they were filing a response as to what happened. Judge Pohl asked the Government to tell the courtroom what had happened, but the Government insisted that the judge would be interested in seeing the notice first.

The defense presented a list of over 100 potential witness. The defense mentioned the logistical issues that might arise with that high number of witnesses potentially coming to Guantanamo. This includes the issue of sufficient lodging, the threat to judicial independence if hearings are canceled and rescheduled, the fact that there is only one courtroom for all the current cases, scheduling conflicts for all parties involved, etc. The defense mentioned that resources are already an issue and affecting the military commission process.

Government invoked national security privilege during defense oral argument

Around half way through the defenses’ presentation on the proposed witness list, the Government quickly rose to address Judge Pohl and invoked the privilege of national security in regards to the presentation. From the observer standpoint, it seemed that the Government was invoking national security because of information found on the slides, which the judge confirmed with the defense had been sent through the appropriate review and declassification procedure prior to the hearing.

Judge Pohl issued a 10-minute recess so that the Government could figure out what the issue was. During the confusion, the obviously frustrated judge addressed the Government, “Now what do I do?”

The NGOs were allowed to remain in the gallery and we were able to observe the confusion in the courtroom.

Once court was reconvened, the Government requested more time. Judge Pohl inquired into what he deemed an arbitrary interruption to the proceedings and told the Government that there was no classified information in the presentation and therefore no reason to assert national security privilege. There was confusion because the Government did not continue to object to the defenses’ presentation, and the hearing was suddenly free to continue. Judge Pohl asked the Government if the defense was allowed to proceed, to which the Government replied that the defense may continue argument as planned.

The afternoon continued with oral argument on motions to compel the identities of witnesses who were only identified with pseudonyms, and also a motion to compel the location of black sites.

Towards the end of the day’s hearing, defense counsel brought up the seizure of the defendants’ laptops, seeking resolution. The defense claimed that there was no probable cause or even reasonable suspicion for the laptops to be seized. The Government’s position was that the laptops would not be returned and the Government would file more pleadings on the issue “in light of the circumstances described”.

Over 24 hours after the attorney-client privileged material was first seized by the JTF, Judge Pohl issued an order that the materials be secured with tamper-proof tape, and placed in a receptacle secured with the same.

The unofficial transcripts for Thursday’s hearings are not available.

Final thoughts

A lot of questions came up during our NGO discussions throughout the week, mostly surrounding the seizure of attorney-client privileged material, the Government invoking national security privilege on declassified material, and also about the judge’s role in the

whole process. The defense seems to be strongly advocating for the interest of their clients, and going above and beyond in their duty to the rule of law and the constitutionally-bound process.

 

While I heard less from the government this week, it seems that they are ultimately interested in achieving justice, but hold a lot of control over the court (such as having the immediate ability to stop all discussion as happened at the hearing on Thursday, even though there was no classified material being discussed.)

My hope for these proceedings is that more Americans become interested and involved in something that a lot of people don’t even know is currently ongoing. Observation is difficult considering that the methods to watch these pre-trial hearings are severely limited, but there are great resources online from both media and NGO observers that members of the public may follow.

Even then, I noticed that the daily transcripts that the military commissions posts on the webpage at www.mc.mil are not complete, with some days missing hours’ worth of transcripts, and some days, such as Thursday, 19 October, missing completely from the website. Without observer and media reporting, the public would likely not know what happens are Guantanamo war court.

 

Sheila Willard (J.D. Candidate, ’18)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law