FBI Infiltration of Defense Teams

Guantanamo NGO Observers from IU McKinney Law School Featured in Indiana Lawyer

Military tribunals for some accused of terrorist attacks on the United States are held at Camp Justice at Guantanamo Bay. (Photo by Catherine Lemmer, IU McKinney School of Law)

Military tribunals for some accused of terrorist attacks on the United States are held at Camp Justice at Guantanamo Bay. (Photo by Catherine Lemmer, IU McKinney School of Law)

The Indiana Lawyer published the following article by Marilyn Odendahl on 25 February 2015. Text and photos are in the original article.

IU McKinney Gitmo Observers Illuminate Murky Proceedings in Gitmo Trials

by. Marilyn Odendahl (25 February 2015)

      The U.S. Military Commission Observation Project overseen by Indiana University Robert H. McKinney School of Law is continuing to send individuals to watch and report on the accused terrorists’ trials being held at Guantanamo Bay. Blog posts and articles from the observers chronicle the glacial pace of the proceedings, the unexpected courtroom twists and the nagging constitutional questions.

Professor George Edwards

Professor George Edwards

The project regularly sends faculty, students and alumni to either Guantanamo Bay or Fort Meade in Maryland to observe the tribunals. Professor George Edwards, founder and director of the project, explained the work of the observers is not to address the political issues or comment on the substance of the military commissions.

“We’re interested in seeking to assess whether the stakeholders are receiving the rights and interests that are afforded to them,” Edwards said. “(Those rights) include the right to a fair hearing, the right to an independent tribunal, the right to trial without undue delay.”

He pointed out the observers also are looking at the stakes that the victims of the terrorists attacks and their families have in the proceedings. What about their rights to have access to the trials, to make statements, to confront and to have closure?

Professor Catherine Lemmer

Professor Catherine Lemmer

IU McKinney librarian Catherine Lemmer, who Edwards described as instrumental in helping to build the observation program, heard some victims’ voices when she traveled to Guantanamo Bay for the hearings of the alleged co-conspirators of the Sept. 11, 2001, attacks.

One man said he was attending the proceedings to remind the judge and attorneys that planes had flown into the twin towers of the World Trade Center and the Pentagon. A mother of a fallen firefighter said she was struggling to hang on to her opposition to the death penalty, but she believed the trials had to be fair because the United States would be judged by how it handles the detainees.

The project drew praise from panelists who participated in a recent forum at the law school examining the tribunals. Hosted by the Indiana International & Comparative Law Review, the symposium brought together legal scholars from IU McKinney and around the country to discuss whether the end is coming for Guantanamo Bay or if the practice of international criminal law has reached a turning point.

An IU McKinney symposium examined trials at Guantanamo Bay. Panelists included (from left): Richard Kammen, Kammen & Moudy; Shahram Dana, The John Marshall Law School; George Edwards, IU McKinney; and Paul Babcock, editor-in-chief of the Indiana International & Comparative Law Review. Chris Jenks of Southern Methodist University Dedman School of Law participated via video link. (Photo by Dave Jaynes, courtesy of IU McKinney Law)

An IU McKinney symposium examined trials at Guantanamo Bay. Panelists included (from left): Richard Kammen, Kammen & Moudy; Shahram Dana, The John Marshall Law School; George Edwards, IU McKinney; and Paul Babcock, editor-in-chief of the Indiana International & Comparative Law Review. Chris Jenks of Southern Methodist University Dedman School of Law participated via video link. (Photo by Dave Jaynes, courtesy of IU McKinney Law)

Two participants – Shahram Dana, associate professor at The John Marshall Law School and Chris Jenks, assistant professor at Southern Methodist University Dedman School of Law – on the second panel discussion both noted IU McKinney’s effort in documenting the proceedings at Guantanamo Bay is shining a light on America’s response to terrorism and will be an invaluable resource for history.

Lemmer advocates for the proceedings to be shown on C-SPAN. The American public should see for themselves, she said, so they form their own opinions. By seeing what is happening in that courtroom, she said it is easy to realize how things could go wrong.

“The role of the attorneys, our role (as citizens) is to hold fast to the Constitution when really bad things happen and everybody wants to step over it,” Lemmer said. “Ultimately, the price we pay for not doing it right is incredible. This is our Constitution and it is getting overwhelmed, which should not happen.”

Lemmer took her first trip to Guantanamo Bay in December 2014. However, the proceedings were derailed by the ongoing revelations that the Federal Bureau of Investigation may have infiltrated the defense teams. The FBI is accused of listening to defense attorneys’ meetings with their clients and reviewing their correspondence as well as attempting to turn legal team members into informants.

When she returned in early February 2015, the FBI conflict-of-interest issue was still being argued. Then unexpectedly, Ramzi Bin al-Shibh, one of the defendants in the courtroom, said he recognized his interpreter as someone he encountered during the period he was held at one of the Central Intelligence Agency’s secret prisons. Another defendant told his attorney he also remembered the interpreter from the black site.

“It became very surreal,” she said.

To Indianapolis defense attorney Richard Kammen, the confusion and conundrums that swirl around Guantanamo Bay could be resolved by moving the proceedings to federal court. Kammen, lead counsel for USS Cole bombing suspect Abd al-Rahmin al-Nashiri, pointed to the hearings of accused Boston Marathon bomber Dzhokhar Tsarnaev as an example that U.S. courts can handle high-profile terrorism cases.

“There’re so many more moving parts down there than there would be in federal court, so things just get more messed up,” he said.

Currently, Kammen and his defense team are tangling with the federal government to release the details of the treatment of al-Nashiri while he was kept in a black site. The release of the CIA Torture Report publicly confirmed that the defendant had been physically, psychologically and sexually tortured, but Kammen said the defense still needs details of what was done and when.

Professor Tom Wilson

Professor Tom Wilson

IU McKinney professor Lloyd “Tom” Wilson is scheduled to observe the al-Nashiri proceedings during his first trip to Guantanamo Bay. The task of watching and relaying what is happening will be difficult, he said, because he will be seeing just a snapshot of a long, complex and secretive process.

Wilson was careful in his preparation for the trip, not wanting to form any preconceived ideas or prejudices before he arrived in the courtroom. He is going out of a sense of civic duty and to understand the situation better than he does now.

Still, the proceedings are not easy to comprehend and continue to spark debate many miles away from the detention camp.

As part of his remarks during the IU McKinney symposium, Kammen described Guantanamo Bay as a “law-free zone.”

Co-panelist Jenks countered that characterization, arguing traditional rules governing the treatment of prisoners of war have been upended by terrorism. In previous conflicts, nation states battled each other but now the United States is fighting against groups that are unconnected with any organized government or country. Even so, he continued, the detainees at Guantanamo Bay have a right to counsel and are being given a trial.

Kammen responded that even if his client is acquitted, he will not be released.

“That,” Kammen said, “is a law-free zone.”

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The original Indiana Lawyer article can be found here:  http://www.theindianalawyer.com/iu-mckinney-gitmo-observers-illuminate-murky-proceedings-in-gitmo-trials/PARAMS/article/36436

Still Awaiting A 9/11 Update

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.

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay)

9/11 Hearings Halted

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)

From the Guantanamo defense: “This is Not What America is About”

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.”

Judge Pohl

Judge Pohl

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…)

Preparing for Guantanamo Bay 9-11 Hearings

Our plane to Guantanamo Bay is scheduled to depart from Andrews Air Force Base on Saturday morning, 13 December 2014.

Our plane to Guantanamo Bay is scheduled to depart from Andrews Air Force Base on Saturday morning, 13 December 2014.

Panic like a 1st year law student or new law firm associate!

It is easy for an Guantanamo Bay fair trial NGO observer to experience the same sort of panic that a first year law firm associate experiences when thrown into a complex litigation matter. I’ve spent a fair bit of time over the last few days reading and re-reading the motions to be heard next week when I am in Guantanamo Bay. Despite my homework, I am not sure I fully comprehend the significance of many of the details.

 

Blog posts – to a fair trial – Guantanamo Bay Fair Trial Manual.

Generally, my blog posts during my Guantanamo Bay mission will not focus so much on the substance of the legal arguments related to the case. Instead, they will focus on right to a fair trial issues, as discussed in the Guantanamo Bay Fair Trial Manual. However, on the eve of my departure, I wanted to post on the defendants in the hearings next week, the pre-trial motions scheduled, and on the odd assortment of categories of lawyers expected to be present to represent the defendants and to represent the U.S.

The hearings for 15 – 16 December 2014

Five motions are scheduled to be heard during two days of hearings at Guantanamo Bay in the case against 5 alleged masterminds of the World Trade Center / Pentagon attacks on 9-11. All five defendants, Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak bin ‘Atash, Ramzi bin al Shibh, Ammar al Baluchi (aka Ali Abdul Aziz Ali), Mustafa Ahmed Adam al Hawsawi, and their legal defense teams are expected to be present for the hearings. Also expected to be present is Independent Counsel appointed for Mr. bin al Shibh.

The regular prosecutors in the case will likely not be in the courtroom during at least some of the hearings, but the U.S. will be represented by a “Special Review Team” that was called in to represent the U.S. next week because of conflict of interest issues related to due to allegations related to the FBI allegedly infiltrating defense teams on the case(more…)

Meeting with Chief Prosecutor – Part II – Wednesday

The NGO Lounge at GITMO where NGO's have a place to work (without Wi Fi though)

The “NGO Lounge” at GITMO where NGO’s have a place to work (without Wi Fi though)

More on the NGO meeting with the Chief Prosecutor General Martins

To conclude a summary of our meeting with General Martins, Chief Prosecutor for the Military Commissions, here are several other topics we discussed in our meeting:

No Miranda warnings required

• One of the primary differences with the Military Commissions and traditional Article III Courts are the different standards regarding Miranda Rights and the admission of hearsay evidence. Generally the standards for admission of hearsay evidence and evidence gathered without first issuing a Miranda warning is less strict. Gen. Martins stressed that due to the nature of the environment where the evidence is collected (often in a theatre of war) there are not always trained law enforcement personnel available and therefore the standard should be different than in a traditional civilian law enforcement/Court setting. That being said, he reiterated that even though the standards may be “lower” there is still a threshold that must be met and not just anything can be admitted. There is still a need for the prosecution to prove that the evidence being proffered is reliable through a “totally of the circumstances” analysis and the defense has an opportunity to counter that through cross examination etc. which is all set forth in the MCA of 2009.

Timetable for al Nashiri trial

• One specific question from the group was when he thought the actual trial would begin for Al-Nashiri. Gen. Martins indicated that he anticipated that at the current pace and posture of the case, the trial could begin in the fall of 2015.

Evidence generated from “enhanced interrogation”?

• In addition, he also noted that for the government’s case it will use no testimony generated from any enhanced interrogation procedures.

Declassifying information

• Gen. Martins also indicated that the government is under an obligation to declassify as much information as possible under the MCROE 505 and that they have been striving to meet that obligation. He also pointed to the volume of materials and direct resources and documents from the proceedings that are available for anyone to ready and review on the internet, and that they strive to make the entire process extremely open and public as the MCA requires.

Listening device disguised as smoke detector in attorney / client meeting room; FBI investigating defense team members

Some of the aL-Nashiri hearing NGO Observers at a table outside our tents.  They stopped letting NGOs have wifi access at this location.

Some of the aL-Nashiri hearing NGO Observers at a table outside our tents. They stopped letting NGOs have wifi access at this location.

• In response to a question from the group, Gen. Martins discussed some of the particularly troublesome issue that some observers of the process have mentioned concerning the revelations of a listening device concealed in a smoke detector in a room where attorneys met and conferred with their clients at GITMO, as well as the FBI interviewing members of the defense team and having nondisclosure statements about the interviews so other members of the defense team would not know of the interviews occurring. The FBI issue is currently being litigated in the 911 case and Gen. Martins has walled himself off from that case so he wasn’t able to comment very much on that other to say that it was a legitimate issue from both sides and the judge is currently hearing arguments on it. Regarding the smoke detector issue, he indicated that the facts presented showed that the room was a multi-purpose room used for other detainee procedures where surveillance was necessary and the listening devices were not operative during the attorney client meetings.

ISIS / ISIL — Captured taken to GTMO?

• An additional question raised by the group concerned the current conflict with ISIS/ISIL in the middle-east and whether or not in the event any of their members were captured, would they potentially be transferred to GITMO to face a military commission. The General responded that it is an open question (and theoretical at this point) on how that would be handled. There are several issues associated with that question that all have to do with the limited jurisdiction of the military commissions based on the MCA of 2009. You would need to explore if they are affiliated with Al Qaeda, are they foreign nationals, are they unlawful enemy belligerents etc.

Future Updates

I will also be posting future updates from the subsequent day’s activities of this trip.