I’m at Andrews Air Force Base waiting for a plane to take me to Guantanamo Bay, Cuba, to monitor hearings in the case against Khalid Sheikh Mohammed (KSM) and four other alleged masterminds of the 9/11 attacks (the “9/11 case”). The hearings are scheduled to occur from 28 April through 5 May 2018.
I arrived in Washington, D.C. on Thursday, April 26 and have been preparing for my final exams that I am taking the week after I return from Gtmo.
This week’s hearings may likely include the following issues, including motions regarding CIA black site location information, access for the Defense to interview current or former members of the CIA, the Trump administration’s influence on military justice process, access to further evidence through discovery, current confinement issues, and procedural issues regarding the speed at which unclassified pleadings are released publicly.
I will report back after my observation this week.
Sheila Willard (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
The Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law nominated me, and the Pentagon confirmed me, to travel to Guantanamo Bay, Cuba to monitor U.S. Military Commission hearings in the case against Khalid Shaikh Mohammed and four other alleged masterminds of the 9/11 attacks.
This was my fourth scheduled trip as part of Indiana’s project, and my second trip to Guantanamo. I was originally scheduled to observe at the beginning of October in the case against Hadi al Iraqi, an alleged high-ranking member of al Qaeda, but as reported by Carol Rosenberg in the Miami Herald, the hearings were canceled due to a medical issue experienced by Hadi.
Breaking news concerning the case U.S. v. al Nashiri
A couple of days before we arrived at Guantanamo, we heard news that 3 members of the defense counsel for Mr. al Nashiri, who is charged in a separate death penalty case, were released from their defense roles by Brigadier General Baker, chief defense counsel. Mr. al Nashiri is accused of orchestrating the attack on the U.S.S. Cole in late 2000, killing 17 U.S. sailors.
The three members of the defense, including learned counsel Mr. Rick Kammen, quit earlier this month over a “secret ethical issue” that the defense claimed compromised attorney-client privacy. A learned counsel is an attorney with experience in capital cases, and whose representation and presence is a requirement for these proceedings. Today, judge Air Force Col. Vance Spath scheduled a contempt hearing to be held tomorrow Wednesday after the three members of the defense refused to appear at war court. Read more at the Miami Herald.
Arrival at Guantanamo
We arrived at Guantanamo on Saturday, 14 October and were immediately escorted to our lodgings where we quickly unpacked and began to settle in. That afternoon, our
Standing at the Camp Justice sign a few hours after arriving at Gitmo.
escort drove us to the Navy Exchange where we were able to stock up on snacks for the week, since our dining options are limited mostly to the galley (cafeteria food) or fast food (Subway, McDonald’s, Starbucks). We obtained our security badges and were instructed to wear any time we were home at Camp Justice.
Monday, 16 October
We entered the courtroom and were assigned seats in the gallery, which is separated from the courtroom by thick glass. There is a 40-second sound delay for the purposes of national security, where the judge is able to cut the feed to the gallery and the CCTV in case of accidental or otherwise classified discussion.
The hearings began promptly today with the defense counsel advising Judge Pohl that there were motions in the works to address the issue of possibly compromised meeting spaces after the developments concerning Mr. Kammen and the al Nashiri case came to light prior to the week’s hearings. Judge Pohl said he wasn’t certain that Brigadier General Baker has the authority to disband the trial team.
The defense also raised the issue of claims of lack of resources by the Joint Task Force (JTF) that directly affect the meetings between counsel and defendant. The Joint Task Force is in charge of the operations at Guantanamo, including detainee operation logistics and detainee transfer/supervision. Since the typical meeting spaces will likely be investigated after the developments in the al Nashiri case, the question concerned where the next most adequate space to meet with the defendants will be.
The defense raised a discovery issue — their ongoing request for Brady material. Brady refers to the case Brady v. Maryland, where the court held that the prosecution must turn over any evidence favorable to the defendant, or, exculpatory evidence (also known as “Brady material”). The Government responded that the defense has been provided with any material they (the Government) deemed relevant, and that the defense can request more discovery. The defense argued that the purpose of discovery is not to have to hunt for evidence. The Government referred to a “voluminous discovery” request by the defense, and said that the Government has no obligation to “spoon-feed” discovery to the defense.
The unofficial transcripts for Monday’s hearings may be found here.
Court recessed for lunch at around 1:00PM and the rest of the session was closed to observers.
Tuesday, 17 October
There was no court today, so the NGOs took the day to sightsee, relax, and catch up on work.
Wednesday, 18 October
The day began with news of government-seized attorney-client privileged material
The hearings resumed Wednesday morning, and started with the news that the JTF had seized the defendants’ laptops which the defense counsel argued contained attorney-client privileged material. Judge Pohl asked the Government to explain why the JTF seized the material. The Government stated that they were working on filing a response to what had occurred that morning and why.
The first motion was picked up from Monday at the end of the session concerning an issue of metadata that was brought by the defense. The defense argued that the prosecution turned over photographic evidence with all metadata stripped off. Metadata is the information that attaches to a digital photograph, including location, date, and time of the photograph, and depending on the sophistication of the equipment used, could even reveal the name of the person who took the photograph. The defense argued that such information is important to their case. The Government responded that the metadata was not relevant, and that the Government will seek to classify the information if the Judge orders that the government turn over metadata to the defense.
The defense also raised a motion to compel the Government to release information regarding certain torture sites, including information on the confinement buildings. The defense sought any architectural drawings, contracts, agreements, etc. pertaining to the buildings. The defense argued that prison architecture can typically reveal a lot about the conditions under which the detainees were held. The actual sites were destroyed or decommissioned, and the defense argued this information may help draw the picture of the conditions under which the defendants were held while at black sites around the world.
The Government responded that the defense could obtain this information from the defendants themselves, and that any information remaining on the black sites is classified “across the board”. The Government argued that while the information may be material to the defenses’ preparation, it is inapplicable to the case because the Government is not using building logistics in their case against the defendants.
The unofficial transcripts for Wednesday’s hearings may be found here.
The session ended late in the afternoon, at around 5PM. The gallery emptied at the close of session, but the NGO observers stayed behind to discuss the day’s events. During this time, we observed one of the four alleged war criminals rise and begin the Islamic Call to Prayer as the four other men stayed seated and continued discussion with their defense
Photo by Janet Hamlin of the five defendants in the KSM case in 2012. Source.
teams. Even though we had the thick glass separating us from where he was standing in the courtroom, we could still lightly hear the sound of the call. It was a surreal moment for the observers, and one I will never forget.
Thursday, 19 October
Today’s hearing was delayed by over an hour because of yesterday’s JTF seizure of the defendants’ laptops that contained attorney-client privileged material. The facts were somewhat unclear, but I believe that the laptops of four of the five defendants were seized as the defendants were on their way to court either the hearing or meeting with their counsel, and one of their materials was seized from the defendant’s cell. The Government noted that they will file notice with an explanation of why the seizure happened, and that the facts will justify the seizure.
This has been the third major seizure of attorney-client privileged material since this case started. The defense asked the judge for transparency in this process and the Government responded that they were filing a response as to what happened. Judge Pohl asked the Government to tell the courtroom what had happened, but the Government insisted that the judge would be interested in seeing the notice first.
The defense presented a list of over 100 potential witness. The defense mentioned the logistical issues that might arise with that high number of witnesses potentially coming to Guantanamo. This includes the issue of sufficient lodging, the threat to judicial independence if hearings are canceled and rescheduled, the fact that there is only one courtroom for all the current cases, scheduling conflicts for all parties involved, etc. The defense mentioned that resources are already an issue and affecting the military commission process.
Government invoked national security privilege during defense oral argument
Around half way through the defenses’ presentation on the proposed witness list, the Government quickly rose to address Judge Pohl and invoked the privilege of national security in regards to the presentation. From the observer standpoint, it seemed that the Government was invoking national security because of information found on the slides, which the judge confirmed with the defense had been sent through the appropriate review and declassification procedure prior to the hearing.
Judge Pohl issued a 10-minute recess so that the Government could figure out what the issue was. During the confusion, the obviously frustrated judge addressed the Government, “Now what do I do?”
The NGOs were allowed to remain in the gallery and we were able to observe the confusion in the courtroom.
Once court was reconvened, the Government requested more time. Judge Pohl inquired into what he deemed an arbitrary interruption to the proceedings and told the Government that there was no classified information in the presentation and therefore no reason to assert national security privilege. There was confusion because the Government did not continue to object to the defenses’ presentation, and the hearing was suddenly free to continue. Judge Pohl asked the Government if the defense was allowed to proceed, to which the Government replied that the defense may continue argument as planned.
The afternoon continued with oral argument on motions to compel the identities of witnesses who were only identified with pseudonyms, and also a motion to compel the location of black sites.
Towards the end of the day’s hearing, defense counsel brought up the seizure of the defendants’ laptops, seeking resolution. The defense claimed that there was no probable cause or even reasonable suspicion for the laptops to be seized. The Government’s position was that the laptops would not be returned and the Government would file more pleadings on the issue “in light of the circumstances described”.
Over 24 hours after the attorney-client privileged material was first seized by the JTF, Judge Pohl issued an order that the materials be secured with tamper-proof tape, and placed in a receptacle secured with the same.
The unofficial transcripts for Thursday’s hearings are not available.
A lot of questions came up during our NGO discussions throughout the week, mostly surrounding the seizure of attorney-client privileged material, the Government invoking national security privilege on declassified material, and also about the judge’s role in the
A look at the NGO Resource tent where the NGOs retreat to socialize and work after each hearing.
whole process. The defense seems to be strongly advocating for the interest of their clients, and going above and beyond in their duty to the rule of law and the constitutionally-bound process.
While I heard less from the government this week, it seems that they are ultimately interested in achieving justice, but hold a lot of control over the court (such as having the immediate ability to stop all discussion as happened at the hearing on Thursday, even though there was no classified material being discussed.)
My hope for these proceedings is that more Americans become interested and involved in something that a lot of people don’t even know is currently ongoing. Observation is difficult considering that the methods to watch these pre-trial hearings are severely limited, but there are great resources online from both media and NGO observers that members of the public may follow.
Even then, I noticed that the daily transcripts that the military commissions posts on the webpage at www.mc.mil are not complete, with some days missing hours’ worth of transcripts, and some days, such as Thursday, 19 October, missing completely from the website. Without observer and media reporting, the public would likely not know what happens are Guantanamo war court.
Sheila Willard (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Observers from Indiana at Ft. Meade monitoring a Guantanamo Bay Military Commission hearing. Observers were permitted to see / hear the video / audio feed from the Guantanamo courtroom. (file photo)
Public observers at Ft. Meade, Maryland were banned today from watching satellite broadcasts of a hearing being conducted in the Guantanamo Bay courtroom, even though public observers physically at Guantanamo were permitted to view the same hearing.
Pentagon pledge of open and transparent hearings
For many years U.S. Military Commissions have been held at Guantanamo Bay, Cuba, to try individuals charged with war crimes. The Pentagon has stated that these criminal proceedings should be open and transparent, and that to facilitate transparency the Pentagon permits a small number of Observers to travel to Guantanamo to monitor hearings. Observers typically represent human rights or advocacy groups, or academic programs. Observers serve as eyes and ears for the general public, who do not have the opportunity to travel to Guantanamo Bay to witness hearings.
The Guantanamo Bay Military Commission Courtroom, viewed from the spectator gallery. (file photo)
Observers sit in an enclosed spectator gallery in the rear of the Guantanamo courtroom, separated from the lawyers, prosecutors and defendants by a double-paned glass. Observers can see what is going on in the courtroom, and hear what is said.
The Pentagon also permits Observers to view Guantanamo proceedings by close-circuit television (CCTV) in a secure facility at Ft. Meade, Maryland. Observers at Ft. Meade can see what the cameras are pointing at in the Guantanamo courtroom, and hear what he Observers at Guantanamo hear.
Today, in what appears to be the first time, Observers were permitted to be present in the Guantanamo courtroom spectator gallery and monitor proceedings live, but Observers were not permitted to view those same proceedings by CCTV at Ft. Meade.
Thus, NGOs in the U.S. were effectively banned from monitoring today’s proceeding.
Why the ban?
It is unclear why Observers in the U.S. were banned from monitoring the hearings by CCTV at Ft. Meade today, while Observers could view the hearings live at Guantanamo.
Lawyers for the prosecution and defense apparently argued yesterday and over the weekend about the Ft. Meade ban. But, at least some of those arguments were held behind closed doors, with no Observer being permitted to hear. Though motion papers were filed related to the ban, those documents are subject to a security review and are not releasable to the public until after 14 days, and may not be released even then.
There are 5 Observers at Guantanamo this week, and they were able to hear some arguments about the Ft. Meade ban. Indeed, they were in the courtroom able to witness today’s hearings – the same hearings from which the Fort Meade Observers were banned.
Again, it is unclear what the convincing argument is that Observers can watch today’s proceedings live in the Guantanamo courtroom, but other Observers cannot watch today’s proceedings by CCTV at Ft. Meade.
My Ft. Meade experiences today
I arrived at Ft. Meade well before the scheduled start time of today’s hearing. The staff member who oversees the Ft. Meade viewing room was there, the lights were on in the room, and the miniature lockers were in place in the rear of the viewing room so Observers could store their cell phones which can’t be used during the CCTV broadcasts.
The minutes ticked away, and soon I learned that an official message had been received that the hearings would not be broadcast to Ft. Meade today, and that was by order.
Nevertheless, I waited to see if the hearing would open, with an announcement of closure made, before the transmission stopped.
Also, was there still a chance that the hearing would be transmitted in full? Just as an order is made, an order can be reversed.
In today’s case, the initial order regarding this week’s hearings was that Observers could monitor at Guantanamo Bay and at Ft. Meade. A subsequent order reversed the portion of the former order that permitted transmission to Ft. Meade. That reversal prohibited the transmission to Ft. Meade. That reversal could very well have been, and could still be, reversed, and transmission could have occurred today. It appears that it would only take a flip of a switch to begin transmitting from Guantanamo to Ft. Meade, and that such transmissions could be started at any point.
I continued to wait. The large video screen in front of the viewing room stayed dark and blank.
The person at Ft. Meade who oversees the technical side of the transmission sits in a different room of the same building where the viewing room is. I checked with that person, and was informed that there was no sign that the transmission would commence.
I left about 90 minutes into the hearing, with the screen still dark and blank, witnessing none of today’s testimony.
Yesterday I discussed in a blog post what my options were for being able to observe today’s hearings, particularly since I (and other Observers) chose not to travel to Guantanamo Bay this week in part because we were initially permitted to observe at Ft. Meade. We were informed 4 days ago (Friday) that NGOs would be banned from viewing the hearings at Ft. Meade. By then it was too late to catch the Sunday flight to Guantanamo Bay to view the hearings in person, sitting in the spectator gallery, along with the 5 Observers who are there. There are 14 seats reserved for Observers in the Guantanamo courtroom, so they had room for 9 more Observers this week.
Had I known last week what I know today, I definitely would have requested travel to Guantanamo Bay for this week’s hearings.
I am scheduled to deliver in Australia early next week, and I could have delivered (and still could deliver) that lecture by video rather than in person, freeing me to be at Guantanamo Bay for this entire week. Indeed, if I could go to Guantanamo tonight or tomorrow for the remainder of this week’s hearings that are not being transmitted to Ft. Meade, I would do so and deliver the Australia lecture by video.
Perhaps the Military Commission will permit Observers who were banned from viewing this week’s proceeding at Ft. Meade to view the videotape? The videotape cannot be classified, because if it were, then the 5 Observers at Guantanamo this week would not have been permitted to be in the courtroom for the hearing.
If the reason for the Ft. Meade ban was security associated with transmitting it stateside – maybe the possibility of interception / hacking – then I and other interested Observers could watch the videotape in a secure room at the Pentagon, or in a secure facility when we are next at Guantanamo Bay – and even possibly watch the video in the courtroom itself.
Also, if any victims and family members of victims (VFMs) are interested in watching the video, maybe they will be permitted to do so as well. Several FVMs were present in the Guantanamo courtroom for today’s hearings, but VFMs were denied the opportunity to observe today’s hearing at Ft. Meade, just as Observers were denied the opportunity to observe. Indeed, any member of the general public, aside from Observers, were similarly denied the opportunity to observe at Ft. Meade, though members of the general public are entitled to observe at Ft. Meade, as are Observers, VFMs, and media.
A Guantanamo Bay defendant charged with planning the 9/11 attacks on the World Trade Center and Pentagon informed the United Nations Committee Against Torture that the U.S. tortured him.
In a 26 June 2016 filing, lawyers for Mr. Mustafa al-Hawsawi, alleged that the U.S. Central Intelligence Agency (CIA) tortured him before sending him to Guantanamo Bay, where he has remained “for over a decade despite having yet to be tried by a regularly constituted court in compliance with Common Article 3 of the Geneva Conventions”.
The Al-Hawsawi team submitted documents to the UN Torture Committee, as part of the process through which the Committee seeks to ascertain whether the U.S. is complying with its obligations under the United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (“UN Torture Convention”), which is a treaty that the U.S. signed and ratified.
Walter Ruiz and Sean Gleason – Two lawyers for Mr. al-Hawsawi
The al-Hawsawi team materials submitted to the Committee have 3 parts:
First, the submission reads, “as background to the questions that we suggest to you, we want to contrast the indisputable facts of Mr. al-Hawsawi’s situation to the misleading rhetoric our Government continues to use to deflect your questions”.
Second, the submission attached “a recently obtained, not previously released CIA document that shows Mr. al-Hawsawi was more extensively tortured than our Government previously admitted (Central Intelligence Agency, Disposition Memorandum: Alleged Use of Unauthorized Interrogation Techniques (“CIA Disposition Memo”)(6 December 2006)). The submission contends that within days of his rendition, Mr. al-Hawsawi’s rendition his ordeal and torture began, and that soon after the CIA concluded that Mr. al-Hawsawi “was not an individual with significant knowledge of al-Qaeda, and therefore was not “high-value”, and thereafter “another round of torture was ordered” and the US “continued to torture him for over three years.” They argue that at Guantanamo Bay the U.S. “has woefully neglected Mr. al-Hawsawi’s medical treatment and has completely failed to take any rehabilitative measures. The injuries were sustained because of his torture, and these daily painful reminders of his torture have never been medically remedied.
Third, they submitted a “communication we have made to various UN Special Procedures, which includes more extensive additional up-to-date information on the particular circumstances of Mr. al-Hawsawi.”
Dr. Mitch Robinson (Center), International Law Specialist for Mr. al-Hawsawi. Dr. Robinson was Guest Researcher, Norwegian Centre for Human Rights. (Right — Professor Mads Andenaes. Left — Mr. Joey Barefield)
The submission commented on “some specific assertions our Government’s representatives made at the United States’ review before the Committee Against Torture in November 2014”, and on the document titled “One-year Follow-up Response of the United States of America to Recommendations of the Committee Against Torture on its Combined Third to Fifth Periodic Reports on Implementation of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“One-Year Follow-Up Response”).
The al-Hawsawi team alleged that “the United States Government is in current violation of the Convention Against Torture at Guantanamo Bay, Cuba”.
Here is a copy of the al-Hawsawi United Nations Committee Against Torture Filing of 26 June 2016:
The Committee Against Torture may receive other documents from non-governmental groups seeking to shed light on the U.S. Government’s compliance or non-compliance with the Torture Convention. The Committee will formulate a “List of Questions” to ask the U.S. government, and will expect the US to answer those questions before the U.S. Government is requested to appear at a UN Torture Committee hearing and answer questions related to whether or not the U.S. is in compliance with the Torture Convention.
The next hearing that the Torture Convention holds at which the U.S. appears will likely be contentions, as have been previous Torture Committee hearings at which the U.S. appeared. The U.S. will likely remain firm in its believe that it does not engage in torture, while human rights groups, Guantanamo Bay defendants, and others will argue that the U.S. has breached, is breaching, and will likely continuing breaching the Torture Convention.
Today, 10 July 2016, the U.S. announced that it released an additional detainee – Fayiz Ahmad Yahia Suleiman of Yemen – who has been relocated to Italy. This brings the total detainee population at Guantanamo bay to 78.
The al-Hawsawi documents were submitted by the following:
Walter B. Ruiz, (Civilian Learned Counsel for Mr. al-Hawsawi)
Suzanne M. Lachelier, (Detailed Civilian Counsel for Mr. al-Hawsawi)
Lieutenant Colonel Sean M. Gleason,USMC, JAG (Detailed Military Counsel for Mr. al-Hawsawi)
Lieutenant Colonel Jennifer N. Williams, USA, JAG (Assistant Detailed Military Counsel for Mr. al-Hawsawi)
Mitch Robinson, Ph.D. (International Law Specialist for Mr. al-Hawsawi)
9/11 lead defendant Khalid Shaik Mohammad, in the Guantanamo Bay courtroom. (Sketch by Janet Hamlin)
Today’s hearings in the 9/11 case started on time in the Guantanamo Bay courtroom.
Defendants KSM, Ramzi bin al Shibh, and Ali Abdul Axis Ali (aka Ammar al Baluchi or “Triple A” or “AAA”) were present when I walked into the Gallery. The other two defendants chose not to appear, which is not uncommon.
The Gallery is a small room with soundproof clear glass through which NGO Observers, Victim’s Family Members, Media, and other visitors are able to watch the hearings. The Gallery has several televisions that show the hearings, with audio on a 40 second delay. We can see what is happening live through the Gallery glass, and 40 seconds later see what we just saw on the TV. It is only through the TV that we can hear what happened in the courtroom, 40 seconds after it actually happened. The purpose of the delay is to prevent the release of classified/confidential information.
There is a curtain in the Gallery separating separating the media and Non Governmental Organization (“NGO”) observers from the victims and victims’ families. The curtain is usually not in use. I have already written about the selection and approval process which allowed me to attend these hearings as an NGO observer. Victims and Victims’ family are chosen based on a lottery system.
The day’s hearing touched on three sets of motions:
AE 018: The hearings on these motions deal with how certain information is treated and released to either the parties or nonparty actors. I believe there were a total of 13 AE 018 motions on the docket for the week’s hearings.
AE 422: The 422 motion was filed by the Government. The Government seeks the deposition of family members of the victims of September 11, 2001 during public pre-trial hearings scheduled for 4-14 October 2016.
AE 133: This motion was filed by the Defense. It is an Emergency Motion to Remove Sustained Barrier to Attorney-Client Communication and Prohibit any Electronic Monitoring and Recording of Attorney-Client Communication in any Location, including Commission Proceedings, Holding Cells, and Meeting Facilities and to Abate Proceedings.
I will not discuss each motion that falls under AE 018, but generally they deal with how communications and information can be released, how those communications are reviewed by the various security processes, and the format and timeliness of prosecution’s discovery responses. There are processes in place for the how various communications are to be reviewed and delivered, however the processes continue to evolve as the litigation continues. The discussions on these motions appear to be good examples of the types of issues that have delayed the 9/11 trial. A few of the specific AE 018 motions are:
AE 018 BB: Government Emergency Motion for Interim Order and Clarification that the Commission’s Order in AE 018U Does Not Create a Means for Non-Privileged Communications to Circumvent the Joint Task Force Mail System.
AE 018EE: Defense Motion to Compel Discovery Responsive to Mr. Mohammad’s Request for Discovery Dated 14 March 2014. (emphasis added)
AE 018 KK: Defense Motion to Invalidate Non-Legal Mai Restrictions Unrelated to Legitimate Penological Interests.
AE 018MM: Defense Motion to Compel Reasonable Privilege Review Team Hours of Operation.
This motion was filed by the prosecution to conduct depositions of certain witnesses. Specifically, the prosecution seeks to depose 10 victims’ family members during the October 2016 hearing. The prosecution wants the depositions conducted in open session at Guantanamo Bay, during the October 2016 hearing. The prosecution cited ages and health concerns, the uncertain posture of the case, and the logistical difficulties for potential witnesses to travel during the actual trial.
The defense generally agreed with the need for depositions but expressed expected concerns about holding the depositions in open court and the proposed dates. The defense teams were not all on the same page with respect to the deposition issue, but some of the arguments expressed by the defense were:
public hearing will taint potential panel members (jury)
there is no need to preserve the testimony because there are so many witnesses
the age and health of potential witnesses is not a factor
there is no need to have the depositions in open court if the evidence may never be admitted
if the prosecution wants to preserve evidence for the elderly and those in poor health, bringing them to Guantanamo Bay would be counterproductive
it does not make sense to have public depositions so close to the election
there is a difference between having the victims’ voice heard and presented vs. creating a public spectacle
This is an ongoing motion dealing with allegations that the government has been trying to pierce the attorney – client privilege. The defense is concerned that they are subject to monitoring which prevents frank exchanges between the attorney and the client. The motion stems from the finding of microphones in fire detectors in rooms that were used for attorney/client meetings.
I suggest reading the AE 133 motions on the military commission website. The discovery of these microphones is documented.
The prosecution stated that while the recording capabilities were present, they were not used during attorney/client meetings. The prosecution stated that while the microphones were used for other law enforcement purposes in the past, they have not been used to monitor attorney/client meetings related to these trials.
My Personal Observations
One issue that stood out for me was the AE 018MM Motion. This motion was filed by the defense to compel the Privilege Review Team (“PRT”) to have reasonable hours of operation. The Privilege Review Team, among other duties, reviews all documents that are taken to a detainee, including any notes attorneys may bring to an attorney client meeting. If the PRT is not operating, then the team of attorneys cannot take any notes into the meeting. Counsel for Hawsawi told the Judge that the PRT was not “open” on the Saturday and Sunday before Monday’s (Memorial Day) hearing, so they had to meet with their client without being able to bring any notes. To me, this sounds outrageous. How is it possible that a team of attorneys who are only able to see their client during very limited hours, after chartering a military flight that flies infrequently, are not able to bring in notes to a client a day before the hearing just because staff of the Period Review Team did not want to work?
I was initially “convinced” by the defense arguments. However, the prosecution presented a different side to the story.
The prosecution argued that PRT staff are like any other employees and it is not unreasonable for them to have the weekend off, especially a holiday weekend. Additionally, the prosecution stated that the PRT is available as long as appointments are made in advance. Prosecution also stated that it is not uncommon for the defense team to not show up to scheduled appointments. After the prosecution presented their argument I was less outraged, and more confused.
I noticed this sway in many of the arguments I have seen in my limited experience with the Military Commission: the movant pulls on emotional strings and presents facts that help their case, the opposing party presents facts in a way that appear to be unemotional and paint a fuller picture. In the end, I am happy I don’t have the burden of having to make a decision. Having only been at Guantanamo Bay for a few days, and only being able to see what I am allowed to see, I find it very difficult to have a strong opinion one way or the other. It is difficult to gather unbiased information because of the emotions and passions tied to the subject matter. Information I receive could be driven by agendas that I do or do not understand. I have made an effort to keep a neutral point of view in order to allow me to gather as much information as possible before I start to lose impartiality.
The hearing on AE 422 was understandably emotional. The curtain separating the media and NGOs from the victims’ family members was drawn shut. The parties argued about the prosecution’s motion to depose, in public court, family members of the 9/11 victims. One particular testimony would revolve around a telephone conversation occurring as a plane hijacking was taking place, just before United 175 flew into the South Tower. The arguments went into additional details, which I will not do here, but the hearing’s transcript is available on the website of the Military Commission.
KSM was also emotional. He, without the Judge’s permission, expressed his feelings regarding the proceedings. I could not make out everything that was said but part of it dealt with the fact that his attorney is an American person and is representing American interest, which is not neutral. Judge Pohl responded with, “one more word and you’re leaving”. Later, Mr. Nevin (Lead Counsel for KSM) explained that his client was upset because an objection was overruled and that a lack of an interpreter prevented the defendant from understanding the meaning of “deposition”.
On Wednesday the Commission held hearings open to NGOs, Media, and Victims’ of Family Members in the morning session; the Commission held closed session in the afternoon. I will write about these later, but I need to get some rest before the hearings tomorrow. The hearings tomorrow are scheduled to include two witnesses. Both of the witnesses are high value detainees who have not been charged with a crime. They will testify during the hearing on AE 152 which is the Emergency Motion for Show Cause Why the Government, JTF Camp Commander and JTF Guard Force Members Should Not Be Held in Contempt. The motion’s allegation is that Mr. Bin al Shibh continues to be subjected to external sounds and vibrations while detained. Hassan Guleed is expected to testify at 10 in the morning and Abu Zubaydah is expected to testify at the start of the afternoon session.
Leontiy Korolev, J.D., Indiana University McKinney School of Law
Participant, Military Commission Observation Project (MCOP), Program in International Human Rights Law (PIHRL), Indiana University McKinney School of Law
Leontiy Korolev at Guantanamo Bay, Cuba on Memorial Day, 30 May 2016
On Monday, 30 May 2016, the U.S. Military Commission held the first day of this week’s pre-trial hearings in the case against the 5 alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon. I was sitting in the Guantanamo Bay courtroom during today’s hearings, which were fascinating.
This post will share about the substance of today’s hearings. Near the end of this post I will share some of my personal observations and opinions about the proceedings and process.
May 30 2016 9/11 Hearing
Yes, it is Memorial Day, but the Judge made it a while ago clear that today’s hearings would take place.
The hearings started with a discussion of the schedule of motions to be argued this week. The following is a list of some of the motions that will be argued, in the order they will be argued, at least as of the end of Monday’s public hearing. Each motion is assigned an “AE number”.
AE 380: Whether or not Walid bin ‘Attash can remove his counsel.
AE 161: Defendants motion for release of unredacted copies of unclassified information.
AE 400: Defense motion for the release of full transcript of the open hearing which government redacted after the fact.
AE 018W: Defense motion to correct problems with the legal mail regime.
AE 018Y: Prosecution motion to block communications between defendants and other except through JTF-GTMO Protocol.
AE 152: bin al Shibh motion for Contempt of the Government for not stopping the “harassing noises and vibrations”.
AE 422: Prosecution motion to depose victim’s family members during October 2016 hearing.
As of now both the defense and prosecution will present witnesses for the 152 motion. The defense will present two current detainees, one on Thursday morning, and one on Thursday evening.
I have no doubt that both detainees will present captivating testimony, but the potential presence of one of the detainees is is particularly noteworthy.
The Prosecution will present a former Camp commander on Friday morning.
Late start to hearings
There was a bit of a late start to the hearings today, in part because there were new guards assigned to secure the proceedings. This fact was brought up several times during the hearings today, most notably after the lunch break when counsel for Khalid Shaik Mohammad (“KSM”) stated that the guards would turn down the A/C in KSM’s holding cell. [Side note, I was able to go into one of the holding cells as part of the tour of Camp Justice on Sunday (he was not there).] Bin ‘Attash actually jumped into the conversation twice expressing his displeasure with the situation. This lead to a “that’s enough Mr. bin ‘Attash”, from Judge Pohl.
A Brief Overview of Some of the Hearings on the Motions
AE 380: bin ‘Attash audibly confirmed that he would like to remove his counsel and later followed up by saying that in 2013 he was able to remove an assistant D.A.G. from his team. He argued that he should be able to remove the current assistant attorney, Mr. Schwartz as well. The issue is whether or not the defendant can remove non-statutorily required counsel. The Judge gave defense 2 weeks to file a brief showing why such counsel cannot be removed from the defense team up request from bin ‘Attash.
AE 161: There are laws that allow the government to redact certain information from disclosure. The defense argues that the prosecution is overstepping its bounds because information is being withheld improperly and the redacted information makes it impossible for the defense to use some of the documents they receive. For example, in one discovery response the prosecution redacted administrative information from the provided documents, which made difficult to match up the documents with their respective attachments.
AE 400: This was a continuation of oral arguments on a motion that I heard argued when I travelled to Ft. Meade in February, 2016. The controversy revolves around an open hearing held on 30 October 2015. After the 30 October 2016 hearing, a redacted transcript was released. The Defense and media companies filed a motion to release the entire unredacted transcript. I published an earlier blog on the motion on 22 February 2016. I found it interesting that this motion may be one of the few times when news outlets such as Fox, MSNBC, and New York Times are all on the same side of an issue. In today’s hearing the parties argued weather or not the discussion of the redacted information can be had in an open session. The defense argued that it could, the prosecution argued the opposite. The Judge stated they will meet in a closed session (505 hearing) to determine if the substantive hearing (806 hearing) can be held in open session.
David Nevin and KSM
David Nevin, Learned Counsel for KSM, requested that KSM be present at both, the hearing to determine if there should be a closed hearing, and at the closed hearing if one is held. The Judge ruled that KSM cannot be present at the 505 hearing, but withheld a ruling regarding the 806. He later denied the request for KSM to be present at the 806 hearing as well.
AE 428: The defense filed a motion for a continuance because various members of the different defense teams have not received proper clearance from the government to view certain evidence. The prosecution argued that a continuance is not necessary because some of the necessary clearance forms were not filed properly. The Judge did not grant a continuance but did bring up a point worth discussing – judicial economy. If clearance is given after many issues have been litigated to conclusion, motions to reconsider will be filed for each such issue since the granted clearance would create new evidence. New evidence bolsters the case for reconsideration of a previously litigated issue.
Tents in Camp Justice where NGOs live at Guantanamo Bay. The Defense had ordered that its lawyers and staff not live at Camp Justice due to concerns about possible carcinogens. The order was lifted prior to this week’s hearings.
AE 426: This motion dealt with the habitability of facilities at Guantanamo Bay. Specifically, this motion dealt with the presence of toxins at Camp Justice, which happens to be the place where I will be living for for the next week. Here is a Link to an article discussing various carcinogens found in the soil at Camp Justice as well as an Order forbidding defense staff from sleeping at Camp Justice.
AE 018W and AE 018Y: The hearings on these motions dealt with the transmission of communications by defendants to third parties through the defendants’ counsel. Defense argued that it should be able to transmit any unclassified documents to third parties, or alternatively there should be a specific process they can follow to determine what communications can be cleared for release.
Mustafa al-Hasawi, defendant # 5 in the 9/11 case
However, Counsel for Hawsawi (defendant # 5 in the 9/11 case) made it clear Hawsawi would not agree to any such process, they would especially not agree to any such process unless the process was transparent and those involved in any review were identified. Counsel for Hawsawi argued that the government is not releasing certain communications because it does not like the message, not because the communications are a threat to national security. The AE 018 motions dealt with a handful of communications that were provided to third parties including a defendant’s family and the White House.
AE 183: Defense argued that defendants should be able to call their attorney from Camp Justice whenever necessary, and vice versa. Currently there is no efficient way for the defense counsel to communicate with their client without being in the same location. Prosecution argued that there is no way to establish a secure connection between the detainees and their counsel. Some research into the current logistics, including any security hurdles, of the communication between defendant and counsel both in person and from the U.S. would likely lead to interesting findings.
My Personal Observations
There just is not enough time to process and report in a meaningful way my experience so soon after the end of the first day’s hearings. I feel very grateful to finally be here and have the opportunity to observe these hearings and interact with the other people here.
All five defendants were present on the first day of hearings. KSM wore his cameo jacket as a statement to show that he is a combatant. There does not seem to be a simple explanation here for anything, while KSM’s attire at first seems to be just a statement in support of the actions he has allegedly committed, there are deeper issues at play. For example, since KSM is a combatant, he, based on precedent, should be able to wear his uniform in a military trial. Denying his request to do so, may impinge on his right to a fair trial. This article briefly touches on the KSM’s attire choice. I also noticed that Hawsawi sat on his pillow, presumably to minimize discomfort caused by events occurring during his detention.
Our NGO group was able to return from lunch in time to catch the end of the defendants’ and one defense counsel’s prayer session. During the prayer, each defendant had two guards standing back to back. One in the direction of the defendant, and another facing the opposite way. My first thought was that the guards were there to protect everyone from the defendants. I quickly realized how insane that thought was. Given the circumstances, the detainees are very powerless. The main reason for the guards, in my mind, is to protect the detainees.
Unrelated Personal Observation
We have had some issues with connectivity which partly explains the reason for not posting more about my travel and arrival. There are 8 ethernet jacks in the NGO lounge for NGO observers to use to hook up to the internet. Only two of them worked over the weekend, and even those two are still very slow. There are many rights and interests that come into play with what may seem like an “inconvenience”. For example, NGOs have an interest to report the ongoings at Guantanamo Bay to the outside world. The public has an interest to know the ongoings at Guantanamo Bay. The defendants have a right to a public trial. Both the Government and the prosecution have an interest in allowing the public to be aware of the ongoings at Guantanamo Bay. All of these rights and interests are effected by a slow and inconsistent internet connection. Additional unrelated point — there is an active bee hive a few feet away from the entry to the NGO Lounge. The NGO Lounge is the only place where internet connection is available to NGO Observers at Camp Justice. Other than the internet, the experience here has been excellent. Everyone we have encountered has been pleasant including our escort, drivers, members of the media, and the attorneys for both sides.
Many of the ideas above are based on my memory and understanding of the 30 May 2016 hearing and related motions and transcripts. The foregoing is my opinion in my own personal capacity, and my blog posts and other comments are my own and do not necessarily reflect those of the Indiana University McKinney School of Law or anyone else, for that matter.
Leontiy Korolev, J.D., Indiana University McKinney School of Law
Participant, Military Commission Observation Project (MCOP), Program in International Human Rights Law (PIHRL), Indiana University McKinney School of Law
Under the Military Commission’s procedures in place here for the 9/11 proceedings, a defendant must attend the proceedings or voluntarily waive his right to attend. If a defendant chooses not to attend, but does not do so voluntarily, the Joint Task Force must “force” the defendant to come to the proceedings.
Judge Pohl “sternly” advised the government that although he understands that there are “a lot of fingers in the pie” and “no unity of command” it is not acceptable to have these kinds of easily avoidable delays. The hearings are now in recess to permit Mr. al Hawsawi to attend his ICRC meeting this morning and then attend the hearings this afternoon.
In the afternoon we are set to pick up with the female guard issue.
By: Catherine A. Lemmer, 9 December 2015, 9/11 Hearings Guantanamo Bay
Building of the Inter-American Commission on Human Rights (Organization of American States), Washington, DC
Lawyers for 9-11 Guantanamo Bay defendants issued this media alert Monday, 16 March 2015:
FOR IMMEDIATE RELEASE
Media Contact: James Connell (703) 588-0407 / (703) 623-8410
WASHINGTON, DC-Today, the Inter-American Commission on Human Rights will hear from attorneys for Guantanamo prisoners at 2:00 pm Eastern time. Attorneys for Ammar al Baluchi and Mustafa al Hawsawi will address the impact of secrecy on the military commissions and ongoing detention.
“A state crime cannot be a state secret,” said James Connell, civilian attorney for al Baluchi. “The secrecy at Guantanamo prevents accountability for torture and interferes with the administration of justice.”
Building of the Inter-American Commission on Human Rights (Organization of American States), Washington, DC
The hearing will include testimony from Special Rapporteur on Torture Juan Mendez, Dr. Stephen Xenakis, and Melina Milazzo of the Center for Victims of Torture.