I am a law student at Indiana University and I recently returned from Guantanamo Bay where I monitored pretrial hearings in the case against five alleged 9/11 masterminds. This was my second trip to Guantanamo Bay and I have previously traveled to Ft. Meade, Maryland to view the hearings via closed circuit video stream.
Detainees’ Right to Attend Hearings
The first day of pretrial hearings began on Monday 8 January 2018, all five detainees entered the courtroom as is required on the first day of hearings at the beginning of any hearing week. After an initial appearance on the first day of hearings detainees may voluntarily waive their right to be present at hearings for the remainder of that hearing week, without the need to be present in the courtroom. Two of the detainees wore camouflage clothing to court as they are entitled under Article 27 of the Third Geneva Convention.
Body Search and Defense Counsel Bag Search
The first two issues in court arose from events that occurred the same morning. The detainees were searched that morning, as is always the case before hearings, but this was the first time that the search involved patting of the inner leg, thigh, and possibly groin. Some detainees would later claim that they would not attend court on subsequent hearing days due to their unwillingness to submit to this procedure. A second issue of the morning was that defense teams’ bags were searched upon entering the courtroom, although not all defense teams abided. This was the first time that guards had asked to look through the defense counsel’s bags, some of which contained legal material. Specifically, defense counselor Nevin refused the search and returned to his vehicle where he left his legal materials. He entered the courtroom with just a single legal pad and argued that such a search violated attorney client privilege. He was eventually allowed to enter the courtroom without his bag being searched.
Late last year the guard force at Joint Task Force Guantanamo, where the detainees are housed, found that Khalid Sheikh Mohammed possessed a prayer schedule with instructions concerning modifying the laptops provided to the detainees by the U.S. government. The prayer schedule was marked with Ali Abdul Aziz Ali’s document identification number and it is unclear how it was transferred to Mohammed. Similar instructions were found in Walid Muhammad Salih Mubarek Bin ‘Attash’s cell. The prosecution claims that the instructions showed significant technical knowledge and they are suspected to have originated from Ali, who was at one time a certified Microsoft engineer. For this reason, the prosecution motioned for a forensic search of the laptops. We heard a lot of argument concerning bios, encryption, software, and internet access. The prosecution claimed that providing the detainees with laptops is an inherent threat to national security, while the defense rejected this claim and asked that the laptops be returned. Judge Pohl did not rule on the issue but did ponder a compromise where a forensic search might be completed and the laptops potentially be returned to the detainees.
Mr. al Hawsawi was not implicated in the contraband laptop instruction issue but his laptop was seized, and Ramzi Bin al Shibh was in a unique position because he was the only detainee to have a 2016 laptop, while the other four had 2008 models. Nevertheless, all laptops were confiscated. The instructions also allegedly specify which detainees were privy to the information, with al Hawsawi and al Shibh being kept out of the loop so to speak. Still the government argued that the mere knowledge of how to modify the laptops would make it too dangerous for them to be returned. When pressed on the nature of the risk prosecution said it was impossible to determine without a forensic search, a notion that the defense argued against.
We also heard about a defense motion to dismiss the case for lack of jurisdiction. This motion is based on the disputed premise that the U.S. was not at war with al Qaeda at the time the alleged crimes were committed, and so the Military Commission lacks jurisdiction over the case. The defense cited a lack of hostilities as evidence that the U.S. was not at war when the alleged crimes occurred. To counter this argument, the prosecution argued that the U.S. was at war and gave explanations for lack of hostilities. Specifically claiming that there was a lack of actionable intelligence and that the potential for collateral damage was too high. They also cited problems with arming Predator drones with missiles as an issue preventing conflict.
Threatened Prosecution of Defense
Another issue came to the surface late in the week due to the fact that the prosecution sent a letter to defense teams and indicated that they might be prosecuted under the Identity Protection Act for attempting to interview current and former CIA employees and contractors. Specifically, the letter laid out a process by which defense’s desired witnesses would be contacted, which would involve a CIA employee and FBI special agent visiting desired witnesses and informing them of their absolute right not to testify. The defense opposed this approach and claimed that they were being prevented from doing effective discovery, an element essential to due process. This issue is compounded by the fact that the prosecution refuses to provide a timeline showing where the detainees were, what was done to them, and who was there to witness it during their time in CIA custody. The government cited national security as the reason for withholding this information. Judge Pohl seemed to think that if the government would be forthcoming with a timeline and other desired information, then this might alleviate some discovery issues. No such compromise appears to be viable option, at least as far as the government is concerned.
The Issue Not Argued
There has been mounting pressure for Judge Pohl to set a target date to begin the trial. He appears unwilling to hear argument on this topic, and probably with good reason. One concern is that if he does set a trial date that delays and pretrial hearings might cause the date to be pushed back. After all, it was once said in court that the trial could begin as early as December of 2013. General Baker expressed uncertainty with regard to trial date and stated that the issues from the week made him feel like a trial was further away than ever. He cited a lack of cooperation, between defense teams and the prosecution, on the discovery process as justification for this position. Although we thought we might hear some argument on this issue, Judge Pohl did not allow this, apparently fearing that such argument would be premature.
Exploring the Bay
On Tuesday the court convened for a classified 502 hearing, which gave us an opportunity to explore the bay since we did not have the required clearance to attend. We rented a boat and journeyed out to Hospital Cay, an island in the Bay once used to quarantine those with Yellow Fever and Influenza. After visiting the island, we stopped for a short swim. The boat driver also took us to the north end of U.S. controlled Guantanamo Bay where we could see the water bridge that separates the Naval Station and Cuba, from a distance.
That afternoon we headed over to Marine Hill and departed on a tour of the North East Gate, which is the only gate still in use between the U.S. and Cuba. This afforded us the opportunity to take pictures and hear the history of Guantanamo Bay from the time Christopher Columbus landed there through present day.
We returned to court on Wednesday morning which is when the court took up three main aforementioned issues spanning the remainder of the week. Those issues were: the seizure of detainees’ laptops, a jurisdictional issue turning on when the conflict began between the U.S. and al Qaeda, and threatened prosecution should the defense teams attempt to contact any current or former CIA employee or contractor.
3rd Year Student
Indiana University McKinney School of Law