On Monday, February 9, Judge Pohl recessed the 9/11 hearings to permit General Martins’ prosecution team and the defense teams to investigate the allegations made by the 9/11 defendant, Ramzi bin al Shibh, that he recognized the new interpreter assigned to his defense team as a worker at a CIA black site. Interestingly, his statement naming the individual and directly making reference to a CIA black site was not censored by the Courtroom Security Officer. As a result, the unofficial transcript first posted to the Military Commissions site included the interpreter’s name. Later in the afternoon a redacted unofficial transcript was posted. A number of the NGO Observers felt that the inclusion of the interpreter’s name in a public document was unwise.
General Martins asked for time to discover the facts and file “papers.” Defense teams asked that the filings be adversarial (ie., available to the defense) rather than ex parte. In addition, defense teams asked that the interpreter be made available for interviews.
There has been a good deal of going and coming of lawyers at the courtroom. However, no news is leaking out to the NGO Observers. It is now 6:30 pm on Tuesday and the docket does not specifically reflect any filings by the prosecution or the defense on this matter. The prosecution did file an “Unclassified Notice of Classified Filing” earlier today. The document is not available for public review.
Although there is much speculation as to whether the 9/11 hearings will move forward, there is no news as of this time.
The 9/11 hearings at Guantanamo Bay were recessed until 9:00 am Wednesday, February 11 to give the defense and prosecution teams to investigate the defense team interpreter accused of being a CIA black site worker.
Today’s action started with a request by retiring Navy Lieutenant Commander Kevin Bogucki to resign from the defense team for Ramzi bin al Shibh. When asked if he accepted Major Elena Wichner as new counsel, Mr. bin al Shibh stated that he could not trust the defense team interpreter sitting next to him because he recognized him as CIA black site worker that was involved in the CIA Rendition, Detention and Interrogation program. Cheryl Bohrmann, Learned Counsel for Walid bin Attash, stated her client had informed her of the same just minutes before.
Ironically the interpreter alleged to be a CIA black site worker replaced the individual dismissed from Mr. bin al Shibh’s team who was found to be the FBI infiltrator.
After a brief recess to bring in General Martin’s prosecution team, Judge Pohl asked the prosecution and defense for a “way forward.” General Martin’s asked for time to investigate and make filings. David Nevin, Learned Counsel for Khalid Sheikh Mohammad, requested that the Military Commission require the dismissed interpreter be held on the island and made available for interviews with the defense.
Cheryl Bohrmann inquired of Judge Pohl if General Martins’ prosecution team was the best option for the investigation of what might again be the government’s infiltration of the defense teams. She noted that her client, Mr. bin Attash, was “visibly shaken” and suggested the the Special Review Team already in place to investigate the FBI conflict-of-interest matter should be used.
Judge Pohl chose to rely on the prosecution and indicated that he didn’t intend that this matter would go through the usual three-week briefing schedule. The hearings are recessed until Wednesday, February 11.
(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)
The 9/11 hearings are in recess because defendant Ramzi bin al Shibh alleged in the courtroom that the interpreter at his defense table had been at a CIA black site. Defense counsel for Walid bin Attash, Cheryl Borhmann, then indicated that her client had informed her of the same. Court is in recess until 10:30 am. General Martins’ prosecution team has been called to court to deal with the issue. His team was not in court because the Special Review Team was representing the government on the FBI conflict of interest matter.
(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)
I am scheduled to leave for Guantanamo Bay on February 7 to observe the Guantanamo Bay military commission pre-trial proceedings in the case against the five 9/11 defendants. The flight is a little longer than necessary because the plane is prohibited from crossing Cuban air space. In addition to the NGO Observers, the plane to Guantanamo Bay will carry many of the other players, including the defense teams, prosecutors, media, and victim family members.
As an NGO Observer, it is my role toattend, observe, analyze, critique, and report back on the Guantanamo Bay proceedings to help ensure that the proceedings are fair and transparent for all of the stakeholders. The Guantanamo Bay Fair Trial Manual sets out the rights and interests of the many stakeholders: the defendants, prosecution, victims and their families, press, witnesses, Joint-Task Force-GTMO, U.S. citizens, international community, and NGO observers.
Brigadier General Mark Martins (Harvard University)
Since my December 2014 Guantanamo Bay mission I have given a good deal of thought to the rights of one stakeholder group in particular: the prosecution. I met Brigadier General Martins, the chief prosecutor, and some members of his team in December during the NGO observer briefing. During the briefing he was asked the “How did you get here question?” In his response he described his past military service, conversations with family, and his legal education and training.
At the conclusion of our meeting, I thanked him for taking on the role of chief prosecutor. Many might wonder why. The short answer is that the prosecutor represents the rights and interests of society as a whole. The guarantee of a fair and transparent trial is as dependent on the prosecution upholding its duty to all of the stakeholders as it is on the defense teams zealously working on behalf of their clients and the judges engaging in thoughtful and insightful legal analysis when rendering rulings.
Standard 1.1 of the National Prosecution Standards of the National District Attorney’s Association states that “the primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth.” Standard 3-1.2(c) of the ABA Standards for Criminal Justice further notes that it is the duty of the prosecutor to “seek justice, not merely to convict.” 10 USC §949(b) (2014) prohibits the coercion or influence of military commission prosecutors. As a stakeholder entitled to a fair trial the prosecution in fulfilling its duty to seek justice has the right to operate with sufficient resources, without judicial prejudice, and free from outside influence.
The duty to seek justice through the representation and presentation of the truth is not necessarily inconsistent with a military commission proceeding. General Martins has indicated that the prosecution is bringing only those charges it believes it can prove; and that no classified information will be used as evidence as it is important for all the stakeholders to be able to evaluate the merits of the evidence. In short, he has advocated for justice with an open and transparent proceeding. However, General Martins and his team are in the challenging position of bearing the burden of illegal and unethical actions by governmental units over which he has no authority (e.g., the FBI and CIA). It may not be possible to counter the taint of these actions on the military commission proceedings. It remains to be seen how he and his team will balance the consequences of these actions while upholding the duty to seek justice.
He is an equally delicate balance with respect to the families of the victims. General Martins often speaks of justice for the victims. The voice of the victims and their families is a strong and compelling voice and the jury (panel) when finally selected and sitting will undoubtedly empathize with it. As the proceedings progress, those interested in a fair and open process will need to be attentive to ensure that the prosecution serves justice by remaining neutral to and independent of each individual stakeholder group.
(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 2015)
Not What America is About – Meeting with Defense Teams
“This is Not What America is About” was the consistent theme of the nearly two-hour session NGO Observers had with defense teams for three of the 9/11 defendants: Mr. Mustafa Ahmed Al Hawsawi, Mr. Mubarak Bin ‘Attash, and Mr. Ramzi Bin Al Shibh. Held in the NGO Lounge, a one-window room carved out of metal hangar and filled with mis-matched 1980’s college dorm and office furniture, we listened as the legal teams told of FBI spying on privileged attorney-client meetings with the use of listening devices designed to look like smoke detectors, FBI attempts to use members of the legal teams as informants, Joint-Task Force seizure and review of attorney-client correspondence, CIA control of the courtroom that lead to monitoring of conversation at the defense tables (ironically the $12 million courtroom was designed to prevent this kind of activity), and trial delay tactics. In short, as James Harrington, Learned Counsel for Ramzi Bin Al Shibh, said, “this is not what America is about.”
Questions and answers were traded with the defense teams about the Military Commission and the process itself. Unlike the established U.S. federal court system, the Military Commission is a new process and every issue is subject to briefing and arguments; and a ruling by Colonel Judge James L. Pohl. James Harrington described the situation as such, it is a “process set up for a particular goal, when rules don’t achieve [that] goal, the rules are changed.” Despite evidence that terrorists can successfully be tried in Federal courts (e.g., Sulieman Abu Ghaith, Osama bin Laden’s son-in-law) the Military Commission process appears at this point in time to be what we stuck with.
Defense Counsel Wearing Hijab
Learned Counsel Cheryl Bormann, who represents Mubarak Bin ‘Attash, also noted the disparate resources made available to the defense teams. For example, her team has not been assigned an investigator. Ms. Bormann wears a hijab during meetings with her client and court proceedings. She explained that she wears hijab to establish rapport with her client. There was a definite undercurrent of a difference of opinion among the defense teams as to whether the wearing of the hijab will create an unfavorable impact with the judge and jury (panel) when and if the 9/11 case ever gets to trial. (more…)
The NGO observers had a sliver of hope that we would see actual court proceedings when we learned on Sunday that Walter Ruiz, attorney for Mustafa al Hawsawi one of 9-11 detainees, had filed a motion for a hearing to obtain medical care for his client. The motion alleged that Mr. al Hawsawi was thrown to the ground and shackled on December 7 due to a misunderstanding as to whether he was to return to his cell or to the recreation area. However the Judge (Army Col. James L. Pohl) denied the request. The next hearings for the 9-11 detainees are docketed for February 9.
Given the lack of court proceedings, the NGO observers pushed for meetings with the defense and prosecution teams. The meeting were scheduled around the various 802 conferences and client meetings.
Brigadier General Mark S. Martins
We met first with Brigadier General Mark S. Martins, the chief prosecutor, and three members of his team. Prior to the meeting we were provided with his 13 December 2014 prepared remarks. The prepared remarks addressed the release of the Torture Report. It was Brigadier General Martins’ opinion that the Torture Report will not disrupt or derail the Military Commission process. Rather, the release of previously classified information will speed discovery for the defense. He reiterated in his prepared remarks that the prosecution will not introduce as evidence statements obtained through torture.
Brigadier General Martins began the session by introducing his staff and referring us to his prepared comments. He noted that he would not discuss the female guard issue nor the FBI conflict-of-interest issue; the latter because he had walled himself off from this issue. He then went on to answer our questions and provide information.
As in his prepared remarks, Brigadier General Martins discussed the prosecutions’s intent not to use evidence obtained through torture. He noted that it is imperative that the people see the government’s case. This is not possible if the prosecution uses classified information. Ironically, his intent doesn’t seem to be shared by some other powers in the government — for example, those entities fighting the release of the remaining torture materials. (more…)
The Committee made 20 findings and conclusions; which are listed in the first 19 pages of the report:
The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees.
The CIA’s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness.
The interrogations of CIA detainees were brutal and far worse than the CIA represented to policymakers and others.
The conditions of confinement for CIA detainees were harsher than the CIA had represented to policymakers and others.
The CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis of the CIA’s Detention and Interrogation Program.
The CIA has actively avoided or impeded congressional oversight of the program.
The CIA impeded effective White House oversight and decision-making.
The CIA’s operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch agencies.
The CIA impeded oversight by the CIA’s Office of Inspector General.
The CIA coordinated the release of classified information to the media, including inaccurate information concerning the effectiveness of the CIA’s enhanced interrogation techniques.
The CIA was unprepared as it began operating its Detention and Interrogation Program more than six months after being granted detention authorities.
The CIA’s management and operation of its Detention and Interrogation Program was deeply flawed throughout the program’s duration, particularly so in 2002 and early 2003.
Two contract psychologists devised the CIA’s enhanced interrogation techniques and played a central role in the operation, assessments, and management of the CIA’s Detention and Interrogation Program. By 2005, the CIA had overwhelmingly outsourced operations related to the program.
CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorized by CIA Headquarters.
The CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained, and held individuals who did not meet the legal standard for detention. The CIA’s claims about the number of detainees held and subjected to its enhanced interrogation techniques were inaccurate.
The CIA failed to adequately evaluate the effectiveness of its enhanced interrogation techniques.
The CIA rarely reprimanded or held personnel accountable for serious and significant violations, inappropriate activities, and systemic and individual management failures.
The CIA marginalized and ignored numerous internal critiques, criticisms, and objections concerning the operation and management of the CIA’s Detention and Interrogation Program.
The CIA’s Detention and Interrogation Program was inherently unsustainable and had effectively ended by 2006 due to its unauthorized press disclosures, reduced cooperation from other nations, and legal and oversight concerns.
The CIA’s Detention and Interrogation Program damaged the United States’ standing in the world, and resulted in other significant monetary and non-monetary costs.
In the Forward to the Committee Study, Senator Dianne Feinstein writes that it is her personal opinion that “CIA detainees were tortured . . . and that the conditions of confinement and the use of authorized and unauthorized interrogation and conditioning techniques were cruel, inhuman, and degrading.” She urges Americans to remember the context (those days following September 11th) in which the CIA’s Detention and Interrogation Program was created; not as an excuse or rationale for the actions of the CIA, “but rather as a warning for the future.” Senator Feinstein’s advice seems particularly appropriate with the growing threat of the Islamic State of Iraq and Syria (ISIL or ISIS) and its ongoing horrific and public treatment of those it deems to be its enemies.
I suspect that people at Guantanamo Bay will be discussing the Report when I am there next week. I will post on what I learn from the discussions. The full report is below: