As I learned during my first visit to Guantanamo as an NGO representative of Indiana University School of Law’s observer program in January, the fact that there are hearings scheduled at the war court complex is no guarantee that they will go forward.  At that time, hearings were cancelled and shortened due to concerns for the health of alleged al-Qaeda commander Abd al Iraqi/Nashwan al Tamir, who has now undergone five back surgeries in the past nine months.  As we prepared to observe this week’s hearings against five alleged September 11 conspirators, we learned that there were again issues that threatened to derail the hearings scheduled through the week.

Mold issues at the war court

When the defense team for alleged 9/11 conspirator Walid bin Attash arrived at their offices in a prefabricated trailer-style building Saturday, they found it, their files, and their court clothes caked in mold.  The legal teams’ trailers are a part of the “Expeditionary Legal Complex,” which, along with the “Camp Justice” tent city housing visiting NGOs and journalists, all atop an obsolete airfield.  The hearings were again in question, until Sunday night, when we learned that they would indeed go ahead at 9 a.m. after an 8 a.m. conference between Judge Parella and the parties’ lawyers.

The first hour of the day was spent in discussion of the mold problems, and the delays to planned preparation they caused the defense teams.  According to Bin Attash’s defense lawyer, William Montross, two members of the defense team had gone to the ER for “breathing difficulties” and a third’s arms were “all red” as a result of the exposure to the mold.  His own suits were ruined, and he wore instead green chinos, a gray collared shirt, and a “Harry Potter” tie.  Confidential documents had to be left behind rather than risking contaminating other areas.

Proposed alternate office contained a decaying rat and rat feces and nests.  The other teams, who’s offices share a common ventilation system, were also affected.  Montross argued that the hearings should be delayed to permit more preparation time to make up for time lost dealing with the mold, re-printing documents, and finding an alternate workspace.  Judge Parella rescheduled oral argument on a bin Attash motion until later in the week, and otherwise decided that hearings would proceed as scheduled.

The gallery

I and observers representing eight other non-governmental organizations (NGOs) and our Guantanamo escort entered the court complex through a security tent and a walkway lined with chain-link fencing covered with black cloth sniper-netting and lined with razor-wire.  There was additional security at the entrance to Courtroom II itself, and we then received our seat assignments in the gallery.  The nine of us sat in the third and last of four rows on the left side of the gallery, and several journalists sat in the first row.  Several uniformed servicemen sat to our left, as did a paralegal and one of the legal teams’ victim family member liaisons.

Eight victim’s family members (VFMs) entered the gallery last, sitting in three rows on the right side of the gallery, separated from us by a blue curtain.  Before the hearings started, VFMs were escorted individually to the left side of the gallery to get a better view of the defendants.  While most of the NGOs are lawyers or law students representing law schools and other legal organizations, one of our group represents September 11^th Families for Peaceful Tomorrows, and herself lost her sister in the South Tower of the World Trade Center on that fateful day.

The gallery we were seated in has five large windows looking into the courtroom, each with a television monitor at the top.  The monitors display the person speaking, whether the judge, defense or government counsel, and they and the audio work on a 40 second delay.  We were informed that if classified information is mentioned, a police-type light to the left of the judge would turn on, the monitors and audio would stop, and white noise would begin.  This has not occurred while I’ve been at the court.  Cameras in each corner of the gallery kept watch upon observers, who were warned that decorum would be maintained as if we were seated in the courtroom.  The proceedings were also broadcast by closed circuit television to sites at Fort Meade, Maryland and Fort Devens, Massachusetts.

The Courtroom

Inside the courtroom are six tables for each the defense and prosecution teams of up to six defendants.  A chair on the left side of each defense table is equipped with “shackle points” – a chain about a foot long secured to the floor to which Defendants may be shackled.  These shackle points have not been used in some time. The five defendants were escorted in by guards of the Joint Task Force – Guantanamo Bay (JTF-GTMO).  Twelve to fourteen guards rotated in and out of the courtroom and along the left wall periodically throughout the hearings.

The defense side of the court was full.  Four of the defense teams, both military and civilian lawyers, are seated to the right of their clients.  Walid bin Attash has declared that he no longer wants his counsel to represent him, so they sit at the sixth table.  Most of the female defense lawyers, in consideration of their client’s cultural sensitivity, wear traditional Muslim abayas covering their heads.  Six three shelf carts full of documents binders are arrayed around and behind defense tables. Government trial counsel sit to the right of the aisle, and are either military, Department of Defense, or Department of Justice lawyers.

Defense motions to compel additional evidence – business records correspondence

Much of the day was taken in arguments over defense motions to compel the government to produce additional evidence about CIA torture and its rendition, detention, and interrogation program.  The first of these was Mustafa al Hawsawi’s motion to compel the government to produce records regarding communications the FBI had with, and records it obtained from, third parties during its investigation of the case.

Al Hawsawi lawyer, Marine Corps Lieutenant Colonel Sean Gleason, explained that during the testimony of FBI Special Agent Abagail Perkins last year, it was revealed to the defense for the first time that the banking and financial records’ declarations the prosecution had offered in its case against al Hawsawi were not collected by the FBI themselves, but were provided by foreign government intermediaries, sometimes years after the records themselves were collected.  Therefore, the defense needs notes, letters, or e-mails containing requests or responses between the FBI and foreign governments in order to properly evaluate the foundation for the records.  Lawyers for Walid bin Attash and Ammar al Baluchi joined in the motion, noting that the financial records were the government’s most important evidence regarding their client’s alleged support for the 9/11 hijackers.

Defense motions to compel accurate information regarding CIA black sites

Lawyers for Ammar al-Baluchi then argued two motions to compel the government to produce additional information about CIA torture, mainly conducted at “black sites” at locations around the world.  Following his arrest in April 2003, al Baluchi was kept in CIA custody at undisclosed locations prior to his September 6, 2006 transfer to prison at Guantanamo.  During al-Baluchi’s secret detention, he was tortured by the CIA using what have become known as “enhanced interrogation techniques.”

Al-Baluchi’s civilian lawyer, Alka Pradhan, made the argument that the index that the government had provided regarding the CIA’s rendition, detention and interrogation program (“RDI”) was full of errors, gave only code names instead of actual locations, and failed to identify individuals that were present during his interrogations and torture.  Other defendants joined in the motion, and Walid bin Attash’s lawyer deferred argument until Friday’s closed session.  The government argued that Judge Pohl had ruled the index they had provided was sufficient, and that witness identification was unnecessary.

Defense motions to compel information about torture and interrogations

Al-Baluchi’s learned counsel, James Connell, argued related motions that the government produce information for non-CIA requests for black site interrogations, documents regarding interrogation personnel, and a report regarding the CIA’s sleep deprivation policy.  Death penalty defendants are entitled to counsel experienced in capital cases.  Connell argued that it appeared that the FBI had fed questions to CIA interrogators, and that the court should therefore compel the government to provide information regarding FBI investigations in Iraq, Afghanistan, and Guantanamo.

The defense is also requesting profiles of individuals who worked at black sites and had direct and substantial contact with the defendants.  Government lawyer Jeff Groharing argued that Judge Pohl had approved its index as satisfying the requirement for a synopsis of individuals with substantial contact with the defendants, and that the government was continuing to supplement its responses to the defendants’ requests.

Court was adjourned for the day at 3:30 to permit defense teams at least some additional time to prepare for Tuesday’s testimony of William Castle.  Castle was the acting general counsel at the Department of Defense in February, when Defense Secretary James Mattis fired the Military Commissions Convening Authority Harvey Rishikof and its legal adviser Gary Brown.

Paul Logan

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

Program in International Human Rights Law

Indiana University McKinney School of Law

14 November 2018