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