This week I attended U.S. military commission hearings held at Guantanamo Bay, Cuba, against five alleged 9/11 conspirators.  I was a representative of Indiana University McKinney School of Law’s Military Commission Observation Project, which sends McKinney faculty, staff, students, and graduates to Guantanamo to monitor hearings.  I and nine other representatives of non-governmental organizations (NGOs) were able to attend court sessions on three different days this week.  The hearings dealt with a defense lawyer’s motion to withdraw, accusations that U.S. intelligence agencies are interfering with the litigation, defense motions to dismiss, and discovery matters.

Judge excuses 9/11 defense lawyer

On Tuesday morning, 18 February 2020, Air Force Col. W. Shane Cohen heard arguments on a motion to withdraw filed by Defendant Ramzi bin al-Shibh’s “learned counsel,” James P. Harrington.  Defendants facing the death penalty cases are entitled to be represented by “learned counsel” who meet American Bar Association standards of death penalty knowledge and experience.  Mr. Harrington, 75, has served as Mr. bin al-Shibh’s learned counsel since 2012.  Harrington requested permission to withdraw from the case due to his health and difficulty in his relationship with his client.

Most of Mr. Harrington’s arguments related to his medical conditions, though he stated that he difficulties in his relationship with Mr. bin al-Shibh affected the health issues. The government argued that al-Shibh would not be happy with any learned counsel, that Harrington had not provided his medical records, and that his condition was not an emergency.  A separate closed ex parte hearing was held with al-Shibh regarding his relationship with Harrington.

Judge Cohen announced his interim ruling on Harrington’s motion on Wednesday morning.  As he found good cause for withdrawal based on Mr. Harrington’s health, he did not address Mr. al-Shibh’s relationship with his lawyer.  Cohen granted Harrington leave not to appear at Guantanamo again, on the condition that he continue to approve pleadings filed by his team until a new learned counsel is appointed.  Mr. bin al-Shibh’s team is required to update the commission every two weeks on progress in the search for a replacement and file a transition plan upon the appointment of a new learned counsel.

Judge Cohen noted that severing al-Shibh’s case from that of the other 9/11 defendants was an option but did not sever.  He acknowledged the possibility that the start of the trial could be delayed until June 2021.  Judge Cohen cancelled hearings that had been scheduled for March 2020, so hearings in the 9/11 case will not resume until June 2020.

Defense lawyers argue that a live computer link compromises process

In a particularly fiery exchange Wednesday among lawyers for Ammar al Baluchi and Khalid Shaik Mohammad (“KSM”) and the judge, those defense counsel argued that the government was using a device in the courtroom which allowed outside interference in the litigation.  Maximum security is enforced in the courtroom, and generally no phones or other devices with connections outside of it are permitted.

The courtroom has two principal parts to it: (a) the well, where the prosecution, defense, judge, defendants, jury, guards, court reports, and other participants are; and (b) the gallery where NGOs, media, victims and victims’ families, and members of the public sit.  The two areas are separated by reinforced glass and soundproofing.

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, the judge or his security officer can trigger a police-type light to the right of the judge, cutting the monitors and audio.  This has not occurred when I’ve been at the court.

In 2013, during defense argument to preserve what remained of CIA “black sites,” the red light came on and the audio feed was cut, but no one inside the court had triggered it.  The subsequent revelation that intelligence agencies had remote access to the audio feed led to lengthy litigation and the original judge’s order that the CIA or any other agency with remote access disable it.

Earlier this month, defense teams observed government lawyers apparently receiving messages from a device sitting on the prosecution’s tables and reacting to those messages by asking the judge to cut the audio and video feed to the gallery.  On Wednesday, defense lawyers argued that the apparent link with intelligence agencies was once again permitting outside interference into the court’s operation.  Judge Cohen then acknowledged that he had, without notice to defense teams, allowed prosecutors to establish the live link to intelligence agencies, including the C.I.A.  He insisted that the link was necessary to avoid “spills” of classified information, and that 21^st century technology avoided the necessity of having representatives from more than a dozen intelligence agencies in the courtroom to signal their objections to potentially classified information.  KSM lawyer Gary Sowards responded “21^st century technology in the service of 15^th and 16^th century torture.”

Judge Cohen insisted that nothing nefarious was going on, and that if he had proof that defense teams were being listened in on, that he would dismiss the case immediately.  He also said that the commission was not a “kangaroo court” or a “failed experiment,” referring to characterizations of the commission made by former defense counsel and the Chief Defense Counsel of the Military Commissions Defense Organization.

Defense lawyers requested a guide outlining classified matters, feedback on alleged confidential matters causing audio to be cut, and the original schematic for electronic wiring at the court.  Judge Cohen took the requests under advisement.

Other motions argued this week

We also observed arguments on discovery matters and motions to dismiss.

Defense lawyers argued that the government had not complied with discovery requests and orders regarding medical records of the defendants and the disclosure of potential witnesses.  They contend that these records and witnesses could shed light on the effect of torture upon defendants before their statements to FBI “clean teams.”  The government seeks the introduction of these statements into evidence in the case, while the defense contends that the statements were the result of coercion and should be excluded.  Government lawyers agreed to attempt to resolve these disputes before court resumes in June.

Lawyers for Ammar al Baluchi and Mustafa al Hawsawi also argued that some of the charges against their clients should be dismissed as they are unreasonably multiplicitous.  In other words, the same alleged acts are the basis of multiple charges.  Judge Cohen also took these arguments under advisement.

Court adjourned

On Thursday afternoon, Judge Cohen ordered that hearings in the 9/11 case be adjourned until June.

On Friday, the other NGO Representatives and I toured the U.S. Naval Station’s Northeast gate with Cuba, and met with Commander Wall, Deputy Chief Defense Counsel of the Military Commissions Defense Organization.  As our meeting with Commander Wall began, we were informed that our flight back to Andrews Air Force Base in Maryland that had been scheduled for Saturday was delayed for 24-hours due to mechanical problems.  We took advantage of the delay by taking a late afternoon boat ride in Guantanamo Bay.

Paul Logan

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

Program in International Human Rights Law

Indiana University McKinney School of Law

February 22, 2020

The Pentagon approved me to travel to the U.S. Naval Station at Guantanamo Bay, Cuba, to observe and monitor U.S. Military Commission pre-trial hearings against five alleged co-conspirators of the September 11 attacks on the World Trade Center and Pentagon.

On Saturday, 15 February 2020, I traveled on a military flight from Andrews Air Force Base (Joint Base Andrews) outside Washington, D.C. to Guantanamo along with nine other representatives of non-governmental organizations (NGOs). Our mission includes to attend, observe and be seen, analyze, critique and report on the proceedings.

The 9/11 trial is scheduled to begin on 11 January 2021, less than one year away. Developments in the case may derail the case, causing a substantial delay.

This short piece describes my background and my observation and monitoring role, who the 9/11 defendants are, case developments I learned at a barbeque sponsored by one of the defense teams including the requested withdrawal of one of the defense counsel, and my concluding thoughts.

My background

I received my Juris Doctor degree from Indiana University’s McKinney School of Law in 1994, and am an employment lawyer in Indianapolis. When I was in law school, there were few international law opportunities for students.  Several years after I graduated, Professor George Edwards founded the school Program in International Human Rights Law (PIHRL), which for over 20 years has offered students and graduates many international opportunities. One of its projects is the Military Commission Observation Project, to which the Pentagon granted special status that permits the Project to send IU McKinney faculty, staff, students, graduates to Guantanamo to observe and monitor U.S. Military Commission hearings.

I am thankful and excited about this opportunity, for myself, and for other IU McKinney Affiliates who have taken advantage of it!

This will be my third trip to “Gitmo” (as the Guantanamo Bay Naval Station is called). In January 2018, I monitored hearings in the case against alleged  al Qaeda commander Hadi al-Iraqi / Nashwan al Tamir.  As a result of his ongoing back problems, only two half-day hearings took place the week I was there.

In November 2018, I returned to Guantanamo for hearings against the five alleged 911 co-conspirators.  We had a busy week of hearings, including the testimony of former acting general counsel William Castle regarding Defense Secretary James Mattis’ firing of the Military Commission’s Convening Authority and its legal advisor.

The defendants

The five defendants in this case hail from multiple nations, are of varying ages, speak multiple languages, and share a long history of confinement in black sites and at Guantanamo.

• Khalid Sheik Mohammed, called “KSM,” is the lead defendant, and is accused of masterminding the 9/11 attack and overseeing the operation and training of the hijackers in Afghanistan and Pakistan.
• Walid bin Attash allegedly ran an Al-Qaeda training camp in Afghanistan where two of the 19 September 11 hijackers were trained.
• Ramzi bin al Shibah allegedly helped the German cell of hijackers find flight schools and enter the United States and allegedly helped finance the plot.
• Ammar al Baluchi, KSM’s nephew, is accused of sending money to the hijackers for expenses and flight training, and helping some of them travel to the U.S.
• Mustafa al Hawsawi is charged with facilitating fund transfers to and from the hijackers.

The 9/11 defendants were seized in Pakistan in 2002 and 2003, and were held in secret CIA black sites outside the U.S. from then until September 2006, when they were transferred to at the Guantanamo Bay Naval Station since 2006. When the men were in the black sites, they were subjected to what the U.S. government calls “enhanced interrogation techniques” but which the defendants call “torture”, including stress positions, walling, dietary manipulation, sleep deprivation, cramped confinement, and others. Some of them were waterboarded, including KSM, who was waterboarded 183 times.

Barbeque invitation by al Baluchi’s defense team; Gathering information

While pre-trial motion hearings in the 9/11 case had been scheduled to take place all week, an unforeseen development late last week has thrown this schedule into doubt.  We (the NGOs) learned more about this development at a barbeque held by Mr. al Baluchi’s defense team Saturday night, hours after we arrived at Guantanamo.

Mr. al Baluchi’s defense team regularly invites NGO Representatives to a barbeque on the night of their Guantanamo arrival in order to preview the hearings expected to take place during the week and to answer questions regarding the proceedings.  The “barbeque” now features pizza and is held at Guantanamo’s historic windward point lighthouse, rather than featuring meat and vegetables cooked on grills at the townhouses where defense counsel used to live at Guantanamo.  The barbecues have become an invaluable resource for NGO Representatives to gain insight into developments in the 9/11 hearings.

The Possible Withdrawal of Mr. bin al Shibah’s “Learned Counsel”

At the barbeque Saturday night, we were informed that last Tuesday, Mr. bin al Shibah’s 75 year old learned counsel, James P. Harrington, asked to be excused from the case for medical reasons, and because of issues involving his defense team. A “learned counsel” is a lawyer with training and experience handling cases in which the death penalty is an authorized penalty, as in this 9/11 case. Under Military Commission regulations, each defendant facing the death penalty is entitled to a learned counsel at all hearings. If the learned counsel is not present for any particular hearing, the hearing cannot go forward.

Air Force Col. W. Shane Cohen, the military judge, recessed hearings for the remainder of last week to permit Mr. Harrington to file his motion and for the government to respond.  The briefing has now been completed, with argument thereon is scheduled to take place here Tuesday morning, 18 February 2020.

Mr. Harrington’s absence from the case threatens to derail the war court’s plan to start the trial in January 2021.  As Mr. al Baluchi’s counsel James Connell explained, the requirement for death penalty defendants to have counsel learned in such cases dates to the very beginning of the republic in 1789.

The October 2017 withdrawal of alleged USS Cole bomber Abd al-Rahim al-Nashiri’s learned counsel, Indianapolis lawyer Rick Kammen, eventually contributed to the months-long abatement of that case, in which the D.C. Circuit Court vacated years of rulings.  Chief Defense Counsel Brigadier General John Baker, who oversees all Military Commission defense counsel, has repeatedly requested funding for back-up learned counsel, but those requests have been denied.

Mr. Harrington has served as al Shibah’s learned counsel since 2012.  It is reported that he has a heart condition that required surgery a year and a half ago, followed by two knee surgeries, and that his doctor has advised him to leave the case.  While Judge Cohen suggested that Mr. Harrington’s withdrawal would cause a delay of three to nine months, Mr. al Baluchi’s counsel described that short of a delay as very ambitious.  The Pentagon would have to hire a new learned counsel, get that lawyer the required security clearances, and provide time for the lawyer to get up to speed on more than seven years of pretrial proceedings.

Judge Cohen has stated a willingness to entertain motions from each defense team to sever their client from the other defendants, with severed cases being tried separately. For example, if Mr. al Shibah’s case is severed, and other defendants are not severed, the case would go forward with 4 defendants, with Mr. al Shibah’s case heard separately.

Conclusion

Tuesday’s proceeding could alter the schedule and eventually the shape of the 911 proceedings.  I and the other NGO Representatives look forward to witnessing these arguments firsthand and hope to hear Judge Cohen’s ruling as well.

Paul Logan

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

Program in International Human Rights Law

Indiana University McKinney School of Law

February 19, 2020