Author: indypaulatty

J.D., Indiana University McKinney School of Law, 1994 L.L.M. in Transnational Business Practice, University of the Pacific McGeorge School of Law Senior Associate, Employment Law Office of John H. Haskin & Associates, Indianapolis Representative of IU McKinney School of Law's Military Commission Project at the Guantanamo Bay Naval Station, January 28 - February 3, 2018

My Week at Guantanamo Bay to Monitor Hearings in the Case Against Alleged 9/11 Conspirators

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.

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The NGO Representatives who attended hearings at the Guantanamo hearings pose in front of “Camp Justice,” the tent city where we spent the week

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.

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James Harrington, who has served as learned counsel for 9/11 Defendant Ramzi bin al-Shibh since 2012, was released by Judge Cohen pending appointment of new learned counsel

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.

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Me in front of the northeast gate, the border between the U.S. Naval Station and the Republic of Cuba

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.

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Ferry’s Landing Beach, formerly known as Fisherman’s Point.  Christopher Columbus landed here in 1494.

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.

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Other NGO Representatives and I enjoy a 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

My Return to Guantanamo Bay to Monitor Hearings in the Case Against Five 9/11 Alleged Conspirators

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Professor George Edwards (left) and I at the Guantanamo Bay airport on Saturday, 15 February 2020. I had just arrived for my week of monitoring, and Professor Edwards was preparing to return to Andrews Air Force Base after his week of monitoring at Guantanamo in the 9/11 case.

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.

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Guantanamo Bay’s Windward Point Lighthouse and Museum.  The lighthouse was built in 1904.

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.

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James Connell, Learned Counsel for Defendant Ammar Al-Baluchi

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.

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Air Force Colonel W. Shane Cohen has presided over the 9/11 case as military judge since June 2019

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

9/11 Hearings at Guantanamo

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The Convening Authority’s Administration Building at Guantanamo.  Photo from the Defense Systems Journal.

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 11th 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.

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Me in front of the tent housing three other NGO observers and I this week

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.

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Ammar al Baluchi was tortured at CIA black sites for 3 1/2 years prior to his transfer to Guantanamo

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

 

 

 

 

Return to Guantanamo Bay to Observe 9/11 Hearings

I was approved and have traveled to the U.S. Naval Station at Guantanamo Bay, Cuba for U.S. Military Commission hearings against five alleged September 11 conspirators.

My mission

I graduated with a J.D. from Indiana University 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, the school founded its 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 (MCOP), which sends faculty, staff, students, graduates to Guantanamo, after the program received  special status from the Pentagon.  I am thankful and excited about this opportunity!

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My invitation to travel to Guantanamo and invaluable resources from the observer project

My mission through the IU McKinney project is to attend, observe, be observed, analyze, critique, and report on the hearings against the 5 alleged 9/11 co-conspirators.

The Defendants

Khalid Shaik Mohammad is the lead defendant, and is accused of masterminding the 9/11 attack on the World Trade Center and Pentagon, 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 helped finance the plot.  Ammar al Baluchi, Khalid Shaik Mohammad’s nephew, allegedly sent money to the hijackers for expenses and flight training, and helped some of them travel to the U.S.  Mustafa al Hawsawi allegedly also helped facilitate fund transfers. All  9/11 defendants were arrested in the early 2000s, were held in CIA blacksites, and transferred to Guantanamo in 2006.

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Khalid Shaik Mohammad (“KSM”)

My previous Guantanamo trip.

This is my second trip to “Gitmo” (the nickname for the naval station).  In January 2018, I attended hearings in the case of alleged al -Qaeda commander Abd al Iraqi/Nashwan al Tamir.  Al Iraqi / al Tamir has had five back surgeries in the past nine months, and that contributed to his having only two half-day hearings days the week I was here.  Incidentally, hearings in Al-Iraqi’s case were again cut short this last week when he suffered spasms in the Courtroom and was rushed to a medical facility.

Last week, the sole high security courtroom at Guantanamo was double-booked, with hearings scheduled concurrently for the 9/11 defendants and for al Iraqi/al Tamir. Only one set of hearings can be held here at a time. Last week, the military judge in the 9/11 case, Marine Col. Keith A. Parella, held closed hearings in the Washington D.C. area, the first time a Guantanamo military commission criminal hearing in a death penalty case has been held in the continental U.S.  Parella has presided since August 27 and replaced Army Col. James Pohl, who had presided continuously since 2011.

Preparing for My Trip to Guantanamo.

On Saturday, 10 November 2018, I traveled on a military flight from Andrews Air Force Base in Washington, D.C. to Guantanamo Bay.  Motion hearings in the 9/11 case are scheduled to take place all week.  There will be eight other representatives of non-governmental organizations (NGOs) observing the hearings with me.

My preparation for the mission to Guantanamo has included reviewing several publications of the Program in International Human Rights Law. These include the Guantanamo Bay Fair Trial Manual: Excerpts, which has introduced me to the relevant international and U.S. law.  I believe this publication will be very helpful as I seek to analyze, critique and report on my Guantanamo experiences.

The IU McKinney program also provided me with Know Before You Go To Guantanamo Bay: A Guide of Human Rights NGOs & Others Going to Gitmo To Attend U.S. Military Commission.  This has also been very helpful.

One of the NGO representatives, from the National Institute for Military Justice, provided the other NGOs documents relevant to the issues that are expected to be addressed.  These are about 50 pleadings in the case, and a docket showing 17 motions which the court needs to address.  More recent filings remain confidential, an issue which Al-Baluchi’s team hopes will also be addressed.  This will certainly make for a full and interesting week.

We attended a barbeque hosted by al Baluchi’s defense team on Saturday night. The al Baluchi team sent a summary of five main issues that they expected would be addressed, and confirmed that Judge Parella intended to address those issues in a conference held earlier on Saturday.

The first is issue political influence with the military justice process, including the coordinated firing of senior military commission officials and the current CIA Director’s comments regarding the guilt of the accused.

The other issues are: defense access to additional information about CIA torture, defense access to other evidence, conditions of confinement issues, and the transparency of the military commissions.  In January, our group of NGOs attended a similar barbecue hosted by Al-Iraqi’s defense team later in the week.  Our meeting with al Baluchi’s defense teams this early in the week has helped us all understand the issues that will be addressed this week much better.

I plan to draft more blog posts as the week progresses.

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Other NGOs and I relaxing before the start of a busy week

Paul Logan

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Government’s “Star Witness” Against Nashwan Al-Tamir Appears in Guantanamo Court

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Ahmed Al-Darbi, in an undated photo by the International Red Cross 

Tuesday, 30 January 2018, in the Guantanamo Bay courtroom, an alleged al Qaeda Iraq member and Taliban liaison encountered the government’s purported “star witness” against him. Defendant Nashwan Al-Tamir has been charged with attacks against allied troops and contractors in 2003 and 2004 in Afghanistan, during the U.S. led invasion, and he was confronted in court by Ahmed Muhammed Haza al Darbi, who testified in August that Al-Tamir was “Hadi al-Iraqi,” Al-Darbi’s Al-Qaeda commander in 1996 whom he saw at a guest house with other Al-Qaeda commanders as late as 2000. In addition to testifying against Al-Tamir, Al-Darbi is also testifying in a case against the alleged U.S.S. Cole bomber, Abd al Rahim al Nashiri, who is alleged to have masterminded the bombing of the U.S.S. Cole off the coast of Yemen. His testimony was in exchange for a guilty plea under which he is set to return to Saudi Arabia this month to serve a sentence of 9-15 years.

Why I am in Guantanamo?

I am a graduate of Indiana University McKinney School of Law, and I am here as a monitor representing the school’s Military Commission Observation Project.  This week I and five other NGO representatives have been monitoring pre-trial proceedings in the government’s case against Al-Tamir.  Al-Darbi’s in court deposition was suspended in August due to Al-Tamir’s health and was set to resume next week.

Star witness against al-Tamir unexpectedly appears in the courtroom

To the the surprise of us NGO representatives observing proceedings this week, Al-Darbi came in to Court Wednesday afternoon with his lawyers for a hearing on Al-Tamir’s motion to compel production of records concerning his psychological condition and treatment.  We did not expect him to appear in court today and we were surprised because his deposition was not set until next week. Not even Miami Herald reporter Carol Rosenberg, the only reporter to regularly attend the hearings, knew that this motion was would be on the Commission’s docket this week. Al Darbi was clean cut and wore a blue suit, having shaved the beard he had worn prior to his guilty plea.  Al Tamir requested production of the records to try to discredit al Darbi’s testimony and deem it unreliable due to trauma he endured as a result of torture inflicted upon him at the U.S. air base in Bagram, Afghanistan and at Guantanamo.

Arguments about al Darbi’s mental condition & mental health records

Al-Tamir’s counsel, Air Force Major Yolanda Miller, argued that al Darbi’s records could show that Al-Darbi was suffering psychological trauma from torture when he testified against Al-Tamir in 2017.  Miller also argued that Al-Darbi had waived any patient-physician privilege when he disclosed records in arguing that he was unable to testify publicly, and that at least the Court should review the records in camera, without disclosing them publicly, before ruling.  The government argued that it had the responsibility to determine discoverability of the records, and that it had determined that al Darbi’s medical records were not relevant.  Al-Darbi’s lawyer, Navy Lieutenant Commander Greg Young, argued that the medical records were privileged, and that Al-Darbi had not previously disclosed any of the records.  The military judge, Marine Colonel Paul Reuben, took the matter under advisement.

Al-Tamir’s motion to abate the proceedings

Earlier Wednesday afternoon, the court had heard arguments on Al-Tamir’s renewed motion to abate the proceedings and his motion to compel the production of intelligence reports.  The proceedings had previously been abated, or suspended, due to Al-Tamir’s degenerative back condition, for which he’s received four surgeries in the past four months.  He had complained of pain since arriving at Guantanamo in 2007, and his previous treatment had largely consisted of ben-gay.  Only last year after Al-Tamir had become incontinent and paralysis became a threat did he receive the surgeries.

Al-Tamir lawyer Adam Thurschwell argued that due to events which occurred just after Tuesday’s hearing, the hearings in the case should be abated, or suspended.  Al-Tamir submitted a letter to the court stating that Joint Task Force (JTF-GTMO), which maintains the detention facilities at Guantanamo, had delayed his ability to relieve himself while dealing with the handcuffs agents had put on him too tightly, it’s seizure of documents his legal team had given him, and failure to deliver a special toilet seat to his holding cell which permitted the him to relieve himself without experiencing pain.  He soiled himself, and there was no running water to his cell.

Thurschwell argued that the hearings had to be abated due to the government’s deliberate indifference to Al-Tamir’s medical needs, making it impossible for him to meaningfully participate in his own defense.  Government lawyer Lieutenant Commander B. Vaughn Spencer presented the testimony of a Staff Judge Advocate (SJA) who disputed Al-Tamir’s version of events.  He testified that the papers had been taken as a part of a routine review process involving any papers provided to detainees, and that he had asked Al-Tamir three times if he needed to use the toilet. Also, the Joint Task Force Guantanamo (JTF-GTMO), which operates the detention camps had, by Wednesday – the next day- provided the special toilet seat to Al-Tamir’s holding pod, and the Base Emergency Engineering Force (BEEF) had been notified of the water issue.

Judge Reuben found that the government had not been deliberately indifferent and denied the Defendant’s motion.  Despite this ruling, Thurschwell continued to interject his concerns for Al-Tamir’s condition as the hearing continued.  Judge Reuben and the government have agreed to conduct shorter hearings with more breaks as an accommodation for Al-Tamir’s disability, which causes him increased pain with prolonged sitting.

Defense motion to compel the government to produce intelligence reports

Judge Reuben also heard argument on the defense’s motion to compel the government to produce intelligence reports regarding its interrogations of Mr. Al-Darbi.  Major Miller explained the interplay between intelligence documents known as HCRs (Human Collection Requirement), SDRs (Source Directed Requirement), and (IIRs) Intelligence Information Reports.  She explained that while the government had provided IIRs which provide information of intelligence value to Department of Defense customers, it had not produced the underlying SDRs, which show specific collection requirements for interrogators examining detainees like Al-Darbi, or HCRs, which would reveal the questions asked by interrogators and whether Al-Darbi refused to answer them.  According to Miller, these documents would provide objective facts, such as lie detector tests, as to whether Al-Darbi was telling the truth, and whether he had been asked about Al-Tamir during the earlier interrogations.  Marine Captain William DePue presented the government’s argument that the SDRs and HCRs were not discoverable or relevant, were cumulative to information contained in IIRs, and that the defense had not met its burden to permit the court to compel the production of those documents.  Again, Judge Reuben took these arguments under advisement.

During the argument on the defense’s motion to compel, the Chief Information Security Officer (CISO), who was seated to the judge’s right, leaned over and had an off the record conversation with the judge.  The CISO has the ability to press a button during the proceedings if he believes that classified information is being discussed, which would cause a light at the judge’s stand to illuminate, monitors to go blank, and the audio feed to the gallery and remote viewing sites, which runs on a 40 second delay, to be cut.  Thereafter, the judge asked each side if proceedings should be closed under Military Rule of Evidence 513.  Both the government and defense replied that there was no cause for closed proceedings.  This classified button was not pressed at any time during the proceedings we witnessed this week.

Wednesday’s hearings begun at 1 p.m., as Al-Tamir had a 10 p.m. MRI on Tuesday night.  While the judge wanted to press ahead on the arguments regarding Al-Darbi’s psychological records, he finally relented to Thurschill’s requests that the hearing end at 5:30 p.m. due to Al-Tamir’s increased pain from prolonged sitting, and the resulting encumbrance upon his ability to participate in his own defense.

Development’s in the case during the rest of the week

We and counsel involved in the case all arrived in court on Thursday morning, expecting arguments on pending motions to resume.  We were told, however, that Al-Tamir had refused to come to court due to the pain he was experiencing, and also did not waive his right to be present for the proceedings against him.

Friday’s hearing was also cancelled.  Later on Friday, we learned that a neurologist had examined Al-Tamir and concluded that emergency surgery was necessary.   Judge Reuben met with counsel for the parties at 10:30 p.m. Friday night in what is known as a 802 conference, for Rule 802 of the of the Rules for Military Commissions, to discuss how to proceed considering these developments.  As a result, the commission will convene in open session on Sunday, February 4 at 9:00 a.m., and the neurologist will be present.  We, the NGO observers at the military commissions this past week, will all look forward to reports from the next set of NGO representatives on this coming week’s developments at the military commission, as we have today (Saturday, February 3) returned to Washington, D.C.  IU McKinney law student Denton Monteith will represent the school’s Military Commission Observers Project this week.

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The Military Commission Administration Building at Guantanamo Bay, Cuba

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2019 IU JD/MBA Candidate Denton Monteith flew into Gitmo on the same United Airlines plane I flew out on Sunday

 

U.S. Military Commission Hearing against Hadi al Iraqi/Nashwan al Tamir

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Our group of NGO Observers at “Camp Justice” on the Guantanamo Naval Station

Yesterday I attended a hearing held in the military commission case against Hadi al-Iraqi, who was referred to by both the military judge, Marine Colonel Paul Reuben, and defense lawyer Adam Thurschwell as Mr. Al Tamir, the name the defendant claims.  I and observers representing five 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 to provide shade and protection.  There was additional security at the entrance to Courtroom II itself, and we then received our seat assignments in the gallery.  The six of us sat in the second and third rows, and Miami Herald journalist Carol Rosenberg sat in the first row.  There was a retired serviceman observing, as was a woman in an area reserved for victim family members (VFMs).  There is a blue curtain which can be drawn to separate VFMs from other observers, but it was not drawn today.  A uniformed serviceman sat in the middle of the gallery.

The gallery 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 did not occur while we were at the court today.  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.  This was set up to accommodate the six original 9/11 Defendants.  Charges against one of the six has since been dropped.  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 on Al-Tamir since he became incapacitated, but are still used on other Defendants. About nine individuals were on each side of the aisle, including an interpreter for Al-Tamir, defense and government counsel, and their staff.

Nashwan al-Tamir, now in his 50s, was transported into the courtroom in a wheelchair by servicemen and wore an upper body brace extending to just below his chin to immobilize his neck.  He has undergone four surgeries in the past four months, and hearings set in October and December were postponed.  According to his lawyers, Al-Tamir suffered from degenerative disk disease before he was captured in Turkey in 2006, allegedly trying to reach Iraq on orders of Osama bin Laden.  He spent 170 days in secret CIA custody before being transferred to Guantanamo in 2007 and had for years complained of back pain.  In 2014 he was charged with being a high-ranking member of al Qaeda Iraq and liaison with the Taliban, and is accused of being responsible for deadly attacks in Afghanistan and Pakistan in 2003 and 2004.  If convicted, he faces a life sentence.

Tuesday’s hearing

This week’s hearings are to address defense motions requesting the government provide medical evidence requested in discovery, for a medical expert on Al-Tamir’s competence to participate in his own defense, for an order compelling access to the accused by his counsel, and an order to prohibit his forcible extraction from his quarters.  The arguments Tuesday covered only the first two of these motions.  Defense counsel Thurschwell, a Pentagon paid civilian, argued that Al-Tamir needs accommodation for his disabilities, including a hospital chair for use when consulting with his lawyers at camp 7, where he is held, a special toilet seat which reduces the pain he experiences without it, a bottle to urinate in without exacerbating his pain, and for shorter hearings with more breaks.  Thurschwell argued that Al-Tamir’s pain was exacerbated by his captors’ denial of necessary medical care until last fall, when he had become incontinent and was in danger of paralysis.

The government’s arguments were presented by Lieutenant Commander B. Vaughn Spencer, who recently became a civilian.  Vaughn did not have clear answers as to why Al-Tamir was not provided with the devices he had requested to accommodate his disabilities, or why the current senior medical officer (SMO) who was to testify about Al-Tamir’s condition did not appear.  He expressed confusion as to whether the defense was requesting abatement, or postponement of proceedings, or accommodation so that proceedings could continue, and noted that the government had no objection to Al-Tamir’s requests for accommodation.

Thurschwell pointed out that the Defendant was present and was willing to participate to the extent he could receive accommodations that could prevent him from experiencing debilitating pain.  The defense requested its own medical expert to assess Al-Tamir’s competence to participate in his own defense, considering a deposition to perpetuate the testimony of a government witness is set to take place next week, and for the court to order the Joint Task Force (JTF) in charge of Al-Tamir’s confinement to provide the requested devices. Each side presented arguments as to the applicable legal standards under the Military Commission Act of 2009 and precedent for assessing a defendant’s capacity to participate in his own defense at this pre-trial stage of proceedings, and the defense’s entitlement to an expert.

While Judge Reuben wanted to address several other issues yesterday, he granted the defense requested an end to the hearing due to Al-Tamir’s inability to relieve himself without the requested devices, while taking all other motions under advisement.  As Mr. Tamir was set to undergo an MRI last night at 10 p.m., today’s hearing will not begin until 1 p.m.

 IMG_0063     NGO Representatives at work in the NGO Resource Center

 

Paul Logan, JD ‘94

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law