David Nevin

31 May 2016 Hearing in 9/11 Case — Tuesday At Camp Justice, Guantanamo Bay, Cuba

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.

Today’s Motions

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.

All the filings related to each motion can be found on the military commission website. Howeve,r not all will be public. http://www.mc.mil/CASES/MilitaryCommissions.aspx

AE 018

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.

AE 422

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

I tend to side with the defense, and if I were to bet, I would bet that depositions will take place, but not in open session and not during the proposed dates. A very recent article by Carol Rosenberg on this issue.

AE 133

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.

AE 422

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”.

Wednesday

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

30 May 2016 Hearing in 9/11 case — Monday at Camp Justice, Guantanamo Bay, Cuba

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.

Witnesses

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.

Abu Zubaydah

Abu Zubaydah has not been seen since his 2002 capture by the CIA. http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article80052562.html

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.

Backs of tents where NGOs live at Camp Justice.

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

Preparing for the April 9/11 Hearings

This morning I sat down to begin reading the transcripts from the two-week February 2016 session of the 9/11 hearings in preparation for my work as an NGO Observer at the upcoming April session of the 9/11 hearings. I will be attending week one of the hearings (April 4-9), and a recent alum of IU McKinney Law School will be attending week two (April 11-15).

Assuming I did the math right, the two week February 2016 session generated 1453 pages.

The transcripts are made available to the public on the Office of Military Commissions website. Simply select the “Cases” tab and open the case you are interested in following. The left navigation panel lists all the available documents for the case, including transcripts.

Documents Page for 9/11 Hearings

I often refer interested individuals to the Office of Military Commissions page. Reading the transcripts gives the reader a good understanding of why the 9/11 proceedings are an estimated 5 to 8 years from going to trial. For example, on February 17 David Nevin, Learned Counsel (death penalty counsel) for the KSM team, describes the inability to get an interpreter processed through the system so he can join the team. The KSM team has been waiting nearly a year for a replacement after the team’s interpreter was removed without explanation after 2.5 years of service to the team.

If you are going as an NGO Observer, reading the transcripts gets you up to speed, both on the issues that may be on the docket during your observation and for understanding how the courtroom works. For example, in the February 2016 session Jay Connell, Learned Counsel, details the classified information process (pages 10332-10376). Perhaps most importantly, reading the transcripts prepares you with questions to ask the Prosecution and Defense teams. For example, does the manner in which the Prosecution approaches classifying information unreasonably delay the process or harm the defense team’s ability to represent the defendant?

For the general public the transcripts are an easy way to stay informed about the process. Granted there are gaps when the sessions move to classified hearings, but reading the transcripts works for the most part. There are typically two responses when I tell people that I am going to Guantanamo Bay to observe the 9/11 hearings. The first is, “why is it not moving faster?” The second is, “why are we not trying the defendants in federal court in the U.S.?” Reading the transcripts answers both these questions.

As Judge Pohl said in the February hearings (page 10270):

“I want to make something very clear here. I am just a judge. I didn’t pass the MCA; two Congresses did, and two Presidents signed it. I didn’t promulgate the rules, the Secretary of Defense did. Okay? So I want to make this very clear. I take the rules they have and my job as a judge is to do the best that I can. I am not vouching for the system or criticizing the system.The system is, from my perspective, as the system is.”

The Military Commission website hosts 195 transcripts for the 9/11 hearings all labeled as “unofficial/unauthenticated.” Usually I read the transcripts as soon as they are posted at the end of the day; but teaching two classes got in the way of this goal in February. At a minimum I like to download the transcripts as soon as possible. Why? — because sometimes the transcripts change–that is, content is redacted even though it occurred in open court. As Judge Pohl stated, the participants, be they defendants, judiciary, defense, prosecution, victims, or observers, didn’t make the military commission system, it is simply the system we have to work with and we all find our way to work best in it. Downloading and reading the transcripts is one of the ways I work with the system.

Posted by Catherine A. Lemmer, IU McKinney Law School