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 21st 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 “21st century technology in the service of 15th and 16th 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.
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.
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University McKinney School of Law
February 22, 2020