I traveled to Guantanamo Bay, Cuba to monitor the 21 – 25 August 2017 hearings in the U.S. Military Commission case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon.
I represented the IU McKinney Military Commission Observation Project (MCOP) of the Program in International Human Rights Law (PIHRL). My role was to observe the proceedings and provide independent, impartial, and accurate accounts of the proceedings. Below I describe the week of hearings and activities that I and my fellow NGO’s participated in.
Monday 8/21 – Full Day of Hearings
Courtroom Setting & Preliminary Matters
The three other NGO’s that I was traveling with, myself, and our monitors entered the courtroom for our first day of hearings Monday morning at 8:30 for a 9:00 start time. During our meeting with Mr. Connell, Learned Counsel for Mr. al Baluchi, on Sunday, he told us that this is the 25th set of hearings that he has participated in while representing their Mr. al Baluchi. During this preliminary time before the hearings convened officially, while I was sitting in the observation area attached to the courtroom, I had a few observations about the surroundings and the logistics as people entered and prepared for the hearings to begin. On his way into the courtroom Gen. Martins individually greeted and shook the hands of the victims’ family members who were in the in gallery.
In the courtroom itself with two guards on either side of each defendant, each of the five detainees were brought in one at a time and escorted to their places at their respective counsel’s tables. The detainees were unshackled and dressed in what we were told was traditional afghan clothing. It appeared that all of the female civilian defense team members were wearing headscarves and modest clothing covering everything but their hands in deference to their client’s religious beliefs, while none of the female military personnel on the defense, prosecution, or guard detail seemed to dress any differently than they otherwise would (i.e. traditional western business attire and military uniforms).
When the judge entered the room all of the people in the courtroom and the viewing gallery stood except the detainees. During the proceedings, the security force inside the courtroom consisted of approximately 19 military guards, three of which were female, who sat in chairs on the side of the courtroom closest to the detainees. During the proceedings the guards rotated in and out of the courtroom periodically in pairs, presumably to provide a break for the guards during the proceedings.
Judge Pohl initially addressed each of the accused and asked them each individually if they understood that they had a right to attend the hearings but that they could decline to attend as well. They all indicated that they understood this with a simple “Yes” stated in English. Mr. bin Attash spoke to the judge about his ongoing objections to his lead counsel Ms. Bormann which has been an ongoing issue for Mr. bin Attash. I learned later during my conversation with Gen. Baker, Chief Defense Counsel, that his objection is based on a difference of opinion on trial strategy and not based on her gender. The NGO’s learned that Ms. Bormann has asked the Judge on several occasions to step down as Mr. bin Attash’s counsel but the judge has denied the request.
The final preliminary matter that was discussed was brought up by the attorneys for Mr. al Hawsawi. They informed the judge that all their computers lost power that morning and as a result they were unable to access all of their documents for the hearings. The judge informed the parties that during the morning session he would attempt to address those matters that did not involve the al Hawasawi team, and would address those issues pertaining to Mr. al Hawasawi later when hopefully the power would be restored to their computers.
Once the preliminary matters were addressed, the court turned to the list of motions on the docket for the day. There were several motions that were handled relatively quickly which are summarized as follows:
Preliminary Discussion on 502 – Issues of personal jurisdiction
Several of the parties stated that more discovery is necessary so they were not taking part in this motion today.
Mr. Al Baluchi’s team stated that they are awaiting some clarification from the classification review process of the documents they intend to use regarding their classification level. Specifically, 5 of their 11 documents submitted have different classification markings than they are currently authorized to see.
This particular issue brings up one unique situation in this case that has 5 different defendants. With this one specific motion, several of the Defense teams had differing litigation strategies from each other team. This shows how differing strategies may impact each of the individual defendants differently.
Noises & Vibrations
The next motion to be addressed was brought by Mr. bin al Shibh’s team. Their client has complained for some time that he has ongoing issues about various noises and vibrations bothering him in the detention facility. His attorneys stated that when he complains about it to the guards he is disciplined, and that those disciplinary penalties have escalated under the current camp commander. Mr. bin al Shibh’s counsel told the court that these issues have interfered with their attorney client relationship and that they are seeking relief from the judge who has issued a prior order directing any noises and vibrations directed at Mr. Bin Al Shibh by the government to cease. The attorneys argued that these orders have been routinely ignored and that they suggest the judge consider abating the proceedings until there is a resolution.
Transport Van Pictures
Mr. al Baluchi’s team had a motion to use pictures that they had taken of the prisoner transportation vans admitted into evidence but they were marked FOUO (For Official Use Only) in the classification review process. This means that their client is not permitted to see the photos due to the various security features on the vans. This issue was resolved with an agreement that the defendant’s team could use the photos in their case but they would not be publicly displayed or displayed to the defendant.
Hearing on Motion to Suppress Statement & Issue Protective Order
The main issue for the day’s proceedings that was argued at some length concerned a written statement from the 5 detainees outlining their response to the charges against them. The defendant Mr. al Hawsawi’s counsel claims that the document is overly prejudicial to their client and should be suppressed from evidence. This document was filed during a time when 2 out of the 5 defendants arguably had counsel in place and 3 were proceeding pro se.
The prosecution made several arguments in response to this motion. First, the document has been publicly posted on the internet and on the Military Commission website since 2009. Second, the statement was not coerced and was voluntarily submitted by the defendants in order to show their pride in the 9/11 attacks and to plead guilty and confess to their crimes. In addition, the judge at the time ordered it released publicly and no one or counsel objected at the time of its public release. The session ended that afternoon with counsel for Mr. aL Hawsawi stating that they planned to present their response at the next public court date.
Meeting with General Martins
After the hearings concluded on Monday, our group of NGO’s had the opportunity to meet with General Mark Martins, Chief Prosecutor for the Military Commissions.
General Martins spent over an hour talking with us and answering our questions. After giving us some general background about the Military Commissions process, how it differs from a traditional Article 3 Court, and also from a traditional court martial process, we talked about some specific issues. General Martins addressed some of the unique situations that arise by having the proceedings at Guantanamo Bay.
During the meeting we discussed that the base was established originally as a law of war camp and some of the facilities used have been re-purposed to accommodate the current proceedings but weren’t originally designed for that purpose. For example, the defense issue of listening devices in the rooms where they meet with their clients was discussed. We discussed the fact that these rooms were originally built and have been used for multiple purposes, including detainee interrogation and interviews where the use of video and audio monitoring is often employed.
Tuesday 8/22 – Closed Hearings
Today the hearings were closed to the NGO’s and the public since they were discussing classified information, but we had the opportunity to meet with Gen. Baker, Chief Defense Counsel. Gen. Baker is the 7th Chief Defense Counsel since the Military Commissions process began after 9/11.
General Baker started our meeting by giving us some background about his position. He said that as of 2012 there were 12 GSA (General Service Administration) positions on the defense teams, and now there are 96 authorized positions although not all are currently filled. He also outlined his general staffing guidelines for trying to have 23 personnel for each death penalty case, 19 for each non-death penalty case and 6 personnel dealing with sentencing issues.
Gen. Baker also indicated that his role was not to represent any defendants but to assist all of the various defense teams assigned to each particular detainee. Typically, the defense teams have common interests and needs but occasionally there are different needs that may actually be in opposition to each other as was recently demonstrated by the testimony of one of the defendants (Mr. al Darbi) against another defendant (Mr. al Iraqi) neither of which are not involved with the KSM 9/11 case that we were there to monitor.
We also spent some time talking to General Baker about the anticipated timeline and the appeals process after the trials are actually done. General Baker indicated that historically there is an 80% reversal rate on capital cases in Military Commission proceedings. General Baker indicated several unique challenges that he said have posed significant challenges to this process; 1) The issue of torture has infected the process, 2) The issue of classified information and how to deal with it while also maintaining a fair process, and 3) The generally challenging logistics of having these proceedings at Guantanamo Bay, Cuba.
Wednesday 8/23 – No Hearings
There were no hearings today so we took the opportunity to visit a variety of places on the base including Radio GITMO, Camp X-Ray (the original site detainees were placed in open air facilities), and Marine Hill. We also took the opportunity to get in a work out at the base gym (which is a fairly new, very nice facility) and especially enjoyed the showers which were several steps up from the showers in the latrine tents at Camp Justice. We also went to Windmill beach and the NEX to buy more supplies.
Thursday 8/24 – Full Day of Hearings
On Thursday, the hearings began at 9:00 AM with 4 of the 5 detainees present. Mr. al Hawsawi was not present. After discussions with the guards by counsel for Mr. Hawsawi in the courtroom under oath from the witness stand, Mr. Ruiz addressed the court about a letter that was hand delivered to him from his client that morning. Mr. Ruiz stated that his client declined to attend the hearing due to being subjected to jarring and rough transportation rides in the van that brought him to the courtroom. Mr. Ruiz stated that based on this, the detainee did not voluntarily waive his right to be present, at which point the judge recessed the proceedings until Mr. al Hawsawi could be brought to the courtroom.
Defense Argument of Islamic Response Statement
The proceedings were reconvened at 10:59 with all 5 of the detainees present. The judge initially addressed Mr. Hawsawi and told him that in the future there would only be two options regarding attending the hearings; 1) sign an unconditional waiver to attend for the session or 2) attend in person and do not waive their right to be present.
The Court then moved to have the Defense address the issue of the defendants’ previous statement that the prosecution argued on Monday should be admitted . Mr. Ruiz argued several points to show why “The Islamic Response to the Government’s Nine Accusations” document should not be part of the court record. Specifically Mr. Ruiz cited the following points; 1) It is undisputed that 2 of the 5 defendants were represented by counsel at the time and therefore the individual detainees represented by counsel could not submit documents to the court on their own; 2) The status of the case at the time was still an active case even though it was continued; 3) The statements by the defendants were not voluntary; 4) The statement was not actually signed by the parties; 5) a curative instruction by the judge is not adequate to protect the defendant from the prejudicial value of the statement.
The prosecution responded that the statement was not a pleading seeking relief but was a confession and the judge was not required to stop the defendants from making such a statement. After both parties presented their arguments to the court, the Judge indicated that he would take the issue under advisement and issue a decision at a later time.
Issue of Disabling Audio in Attorney Client Meeting Rooms
The next issue the court addressed concerned the disabling of all audio recording in the attorney client meeting rooms in the detention facility on Guantanamo Bay. The Court had previously entered an order prohibiting all audio recording in the client meeting rooms, and that order was still in effect. The defense counsel indicated that in another case there had been an incident of recording devices found in the client meeting rooms and they wanted the court to reiterate its order and to also allow the defense teams to verify that audio recording was not occurring. The prosecution and defense agreed to work together to try and satisfy the defense teams’ concerns. It was also noted that for security reasons the guards are allowed to monitor the meeting rooms via video but without any audio. The court then recessed at 1:15 until after lunch.
Issue of Preservation of Black Sites as Evidence
During the break, the NGO’s went to the Commissary for lunch. The court reconvened at 2:15. After a few minutes addressing the issue of listening devices in the client meeting rooms, the court moved to address the issue of preservation of the black sites as evidence. The issue was raised by the Defense teams that the Court permitted the destruction of the Black Sites which the Defense teams wanted to visit and document in order to possibly submit mitigation evidence but which had been “decommissioned,” or destroyed as the defense states.
Mr. Nevin, Counsel for KSM and Mr. Connell, counsel for Mr. al Baluchi, took turns asking the judge questions in a voir dire process about his role in the original order to preserve the black sites where the defendants were held and then the process where the judge entered another order allowing the sites to be decommissioned without the defense counsel receiving a copy of the order in a timely fashion. After the defense counsel asked the judge questions about what happened during this process and what the judge knew of the sequence of events, the defense rested and the court shifted to a different topic with the substance of the black site issue scheduled to be argued in Friday’s session.
Prosecution’s Proposed Scheduling Order
The next issue to be addressed was a discussion of the prosecution’s proposed scheduling order for moving the proceedings forward. The government said that new resources (not a new courtroom) should be in place by Nov. 2018 , enabling two simultaneous trials/hearings to take place sharing the current courtroom. Specifically, they proposed a 4/3-day rotation with one trial having 4 days on and 3 off and the other trial having 4 off and 3 on. The judge said that the 9/11 case due to its size would not operate concurrently with another one. Also, they could only do 1 death penalty case and one non-death penalty case at the same time and not 2 death penalty cases.
Until the improvements are completed in 2018, the prosecution recommended that the judges coordinate the schedules so they could maximize the use of the courtroom. Also, the Government confirmed that they are not contemplating adding a new courtroom due to the “lack of political will” of the Pentagon to spend the money required. There was a lengthy discussion about how feasible & logistically realistic it would be to build another courtroom. The judge postponed this conversation until October when they are scheduled to reconvene for the next round of scheduled hearings. One other option that was presented was to try to set up a SCIF (Secure facility) in the Washington DC area to do the 505 H and 806 hearings (Classified sessions) so they don’t have to go to GITMO for those.
Threat Assessment Documents
The next topic for today was on a discovery request from Mr. al Hawsawi’s team. They argued that some documents related to a threat assessment of al Hawsawi were not produced by the Prosecution that the defense team wanted. The prosecution is exerting a Deliberative Process Privilege which the judge will consider and rule on later after arguments.
End of the day
At the end of the day, the judge laid out several motions to be considered on Friday with a morning open session followed by a closed classified session. At about 4:30 the judge allowed the defendants to pray in the courtroom before they were transported back to their detention cells.
Friday 8/25 – Morning Hearings
Court convened at 9:00 AM with none of the defendants present. After confirming with the guards and defense counsel that all of the defendants had voluntarily waived their presence in the courtroom by having the guards testify in court, and a few other preliminary matters, the court turned to several issues: (a) the defense motion to disqualify the judge and the prosecution; (b) abate the proceedings due to the destruction of the black sites were the defendants were held; (c) and the inability to adequately obtain exculpatory evidence by the defense.
Argument to recuse Judge, Prosecution & Abate Proceedings due to Destruction of Black Sites
Mr. Niven and Mr. Connell lawyers for Khalid Sheik Mohammed and Ammar al Baluchi respectively, argued that the exculpatory evidence at the black sites was destroyed without any notice to the defense teams, the substitute videos are not sufficient substitutions, and since this is a death penalty case, the only solution is to abate the proceedings and remove the judge and prosecution team. The defense argues that a video recording that the court had made of the site is not adequate since it does not capture things like temperature, vibrations, lines of sight, sounds, humidity, and experts can’t see it in person. Since this is a crucial part of the mitigation of the proposed death sentence, there is no other remedy but to abate the proceedings.
Mr. Niven & Mr. Connell argued that the government’s bad faith has been persuasive in this case and then laid out a time line of events, as follows:
1) Aug. 2012 – Defendants initially asked the court to order preservation of the black sites so they could inspect them and obtain mitigation evidense;
2) Dec. 2013 – The black sites are ordered preserved by the judge;
3) June 2014 – The judge after ex parte communication with the prosecution issues an order saying it is OK to “decommission” (aka destroy) the black sites (Order 52EE) but the redacted order does not get distributed to the defense attorneys at the time for unknown reasons
4) July 2014 – The Prosecution tells the judge that they will send the defense counsel a redacted order regarding destruction of the black sites
5) January 2015 – Defense counsel notice the order in the order book and contact the court to determine what it is since they never received a copy of it.
5) February 2016 – The defense counsel first receives the redacted order 52 EE issued in 2013 permitting the government to decommission the black sites
Mr. Swann, counsel for the Prosecution responds to the defendants’ motion by arguing that there is no basis for disqualification of the judge or the prosecution. Mr. Swann argues that if there was an improper order by the judge that it is grounds for appeal not recusal. In addition, the Classified Information Protection Act (CIPA) is the core issue here. Specifically, the preservation of an alternative as was done in this case with the video has been consistently approved. In addition the precedents that the defense relies on focus on evidence that was destroyed without a court order unlike this case.
Press Conferences and Final Dinner
After the court sessions were over, our group of NGO’s headed to the trailer next to the media room to watch the press conferences from the prosecution, the defense counsel and also the victims families. After that, we had our final dinner together as a group at the Bay View restaurant.
Saturday 8/26 – Travel back to Joint Base Andrews
Saturday was our travel day back to Joint Base Andrews and we had to turn in our security badges, clean out our tents and make our way to the area to check our bags for the trip back. After loading onto the ferry for the trip across the bay we boarded the plane at 10:00 and after 3 ½ hours we were back in the United States.
Charles R. Dunlap, J.D.
Member, Military Commission Observation Project
Program in International Human Rights Law
Indiana University McKinney School of Law