Judge Pohl

My second observation of war court proceedings at Guantanamo Bay, Cuba

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.

Final thoughts

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)

Program in International Human Rights Law

Indiana University McKinney School of Law

Somali Detainee Guleed Testifies at Guantanamo Bay in 9/11 Case

Hassan Guleed, a detainee since 2006, testified today about “vibrations” and “noises” purportedly used to harass detainees in Guantanamo Bay’s secret Camp VII that houses “high value detainees” (HVDs)

On Thursday, 2 June 2016, I was in the courtroom at Guantanamo when an unusual rare event occurred. I was there when a detainee, named Hassan Guleed, was called to testify in open court. Guleed, who is a Somali detained at Guantanamo since 2006, testified about “vibrations”, “noises” and “smells” that allegedly have been used to harass detainee Mr. Bin al Shibh, who is one of 5 men charged with masterminding the 9/11 attacks on the World Trade Center and Pentagon.

Below I provide some background on today’s hearings, details of the hearing, and some of my personal observations. I am writing this entry soon after court ended today, in the middle of other activities in store for me and the other observers that the Pentagon permitted to travel to Guantanamo for this week’s hearings. I will seek to fix any misspellings or other errors later.

Background

On 21 June 2013, the U.S. Military Commission hearing the case against the 5 9/11 defendants ordered the Government not to disrupt Mr. Bin al Shibhs’s cell. On 2 November 2015 the Military Commission again issued a” Do Not Subject Mr. bin al Shibh to Disruptive and Harassing Noises and Vibrations Order”. Counsel for bin al Shibh filed a motion to hold the government in contempt because, according to bin al Shibh, the disruptions have not stopped.

Two witnesses were scheduled to testify today in support of bin al Shibh – Abu Zubaydah and Hassan Guleed. Both witnesses are high value detainees (HVDs) who are detained in Canp VII, where bin al Shibh is detained, and which is a secret, isolated detention facility at Guantanamo Bay. The two witnesses were purportedly fact witnesses with knowledge of the alleged continuous vibrations and noises “which are an extension of the traumatization of the torture he has experienced at the hands of the United States Government, especially during the nights leading up to a schedule hearing.” (AE 152 LL (RBS), Emergency Motion for Show Cause why the Government, JTF Camp Commander And JTF Guard Force Members Should Not Be Held in Contempt filed 11 December 2015)

Witness Testimony

SPOILER ALERT: Abu Zubaydah did not testify. There was only one witness, which is still more than most observers have been able to experience in-person.

The witnesses were to testify about the conditions at Camp 7, again where the witnesses and bin al Shibh are housed. bin al Shibh has stated that he is being subjected to external sounds and vibrations while detained, even after Judge Pohl Ordered such activity, if occurring, to cease. Hassan testified beginning at approximately 10 am. Zubaydah was scheduled to testify at 2:15 pm.

Guleed:

Hassan Guleed was the first witness. The guards made a line, shoulder to shoulder, facing in opposite directions between the defendants and the witness as the witness walked in. I was told that the distance walked by Guleed from the entry to the witness stand is the longest he has walked without shackles since being detained in 2004. The defendants did not look around as the witness was walking in, however there appeared to be some “interaction” between the witness and the defendants when the witness was on the stand and the defendants were seated at their respective defense tables.

Mr. Harrington, Learned Counsel for bin al Shibh, conducted direct examination on Guleed.

Here is a link to a DOD Detainee Assessment on Guleed. The document, that was released in 2008, contains some background information on Hassan Guleed.

Guleed, who has never testified in court and has never been charged with any Guantanamo Bay crimes, does not have an attorney and did not have an attorney in court with him today. Guleed refused services of an interpreter, and wanted to speak only in English. In my opinion, language was a bit of a barrier in only a few specific instances, but overall Guleed appeared to have a good command of the English language. Guleed noted the defendants were his “brothers”, and he called them “brothers” during his testimony.

The transcript of the testimony has been released on the Military Commission’s website.

Mr. Guleed testified that he heard noises and felt vibrations like those purportedly heard / felt by bin al Shibh.

Mr. Edward Ryan, for the government, cross-examined Guleed. It was interesting to watch. Mr. Ryan started off on an aggressive tone which he carried throughout the cross examination. He tried to establish that the witness was biased by asking questions which explicitly or implicitly point to the idea that Mr. Guleed considers the United States his enemy. For example, Mr. Ryan asked if Mr. Guleed’s Kunya is his Al-Qaeda or Jihadi name. He also specifically asked if America was Mr. Guleed’s enemy.

This “red light” in the Guantanamo Bay courtroom flashed twice when the witness Mr. Guleed purportedly referred to classified information about the secret Camp VII where he is housed.

During the testimonay, the court’s “Red Light” went off twice signaling that the court security officer was cutting the audio and video feed from the courtroom to the gallery where we observer were, with the cut presumably because classified information was being discussed during the testimony. The audio / video feed was turned back on after only a couple / few minutes.

A few quotes I jotted down during the hearing, copied here from the transcript on the Military Commission’s website:

Guleed: They didn’t charge nothing for me, I’m staying, only staying in the camp. They didn’t charge anything for me against. So I’m just waiting charge or whatever it is. … No charge. They don’t have nothing to charge me. I did nothing.
—
Guleed on why he is testifying: There’s two things: Helping brother, and same thing that I got a problem. So there’s nowhere else that I can tell them. So the people outside here…so that’s the chance for me to testify at the same time and tell my problem.
—-
Mr. Ryan: All right. I’m going to start with vibrations. What does that mean?

Guleen: What means vibration?

Mr. Ryan: Yeah.

Guleen: Vibration is vibration.

Mr. Ryan: Thank you. That helps me.
—-
Mr. Ryan: Mr. Gouled, I don’t want to cut you off. If I cut you off, please tell me so. Okay?

Guleed: You did already.

(I have seen the last name spelled differently on several government documents)
——
Mr. Ryan: Is America your enemy?

Mr. Guleed: I’m not in Guantanamo if it’s not my enemy.

Mr. Ryan: Thank you for that, but now my question is, is America your enemy? Do you believe America is your enemy?

Mr. Guleed: No, I’m not believing. I think they’re my friend.

Mr. Ryan: You think they’re your friends?

Mr. Guleed: Yeah.

Mr. Ryan: Are you kidding right now?

Mr. Guleed: No, they give me food in my Camp VII.
—–
Mr. Ryan: Is it true that under your version of Islamic law, it’s acceptable to lie to infidels?

Mr. Guleed: My Sharia tells me that I have to tell the truth.

Mr. Ryan: To whoever is asking the questions?

Mr. Guleed: Depends.

Mr. Ryan: Okay. Sir, in the course of your testimony today, am I correct to say that you’ve like to us many times.

Mr. Guleed: I’m not lying.

Mr. Ryan: That’s all I have, Judge.

Abu Zubaydah:

Abu Zubaydah, a high value detainee, who has not been charged and has not been seen by the “public” (press, observers) since his capture in 2002, was scheduled to testify at 2:15. Mr. Zubaydah was transported to Camp Justice from Camp 7 over lunch and was waiting outside the courtroom. He never entered the room, and no one in the gallery ever saw him.

Mr. Zubaydah is also being held at Camp 7 and was going to testify in support of allegations made by bin al Shibh regarding the continuous noise and vibrations at the facility.

Zubaydah was represented by counsel, Commander Patrick Flor. Commander Flor was present in the courtroom during the hearing. The afternoon session started with a conversation among the Military Judge, Commander Flor, Mr. Harrington, and Mr. Ryan. The conversation ended with a decision that Zubaydah would not testify today.

An issue concerns whether any testimony by Zubaydah might incriminate him, and whether immunity could be granted so that he could testify fully without his testimony being able to be used against him should charges be filed against him.

During the discussion among the Military Judge and the lawyers, the prosecution (Mr. Ryan) noted that he would ask questions attempting to show bias in favor of the bin al Shibh. Mr. Ryan planned on showing bias by asking questions about alleged illegal activities as well as asking about any bias against the United States, shared values with the accused, and relationships with the accused. Harrington and Flor suggested that the Judge provide immunity for the questions asked. The Military Judge did not believe he had the authority to provide immunity, and the parties were not sure at what point the immunity would kick in. There was also a question of what information would get struck if immunity was not given, but instead if objections were raised during cross examination. The parties could not determine if, in that situation, both the cross and direct examination would be struck from the record, or just the cross. It was decided that his testimony would be postponed until the next hearing. The parties were requested to file briefs with the court.

Personal Observations

All five of the 9/11 defendants were present for today’s hearing. Today KSM, bin ‘Attash, and bin al Shibh wore cameo jackets. All of the defendants had their heads covered. al Baluchi wore a Pashtun hat. KSM and al Baluchi had “scarves” draped over their shoulders with a golden dome and the word “Palestine”.

It seems the laweyrs involved in the Zubaydah fiasco could have worked out any issues before Zubaydah arrived at the court today. I have no experience with the substantive issues, but it does seem that bin al Shibh’s defense counsel or counsel for Zubaydah could have known the sort of questions that the prosecution was going to ask, and could have been prepared on the self-incrimination / immunity issues. If the witness is testifying in support of a motion made by the defense, wouldn’t it only make sense that the prosecution would attack the witness’s credibility by trying to show bias? Hindsight is 20/20 but it is possible that the parties were well aware that the immunity issue would come up and for whatever reason decided to not work out the issue prior to testimony.

There was disappointment in the gallery when the Military Judge stated Zubaydah would not testify today. I was disappointed. However, those in the courtroom seemed un-phased. Although I was disappointed to not have a chance to see Zubaydah in person, I am glad I was able to see and hear Guleed’s testimony live. It is very rare to be able to see an in-person testimony during these proceedings, let alone an in-person testimony from a high value detainee. His testimony was surprisingly entertaining, which feels odd to write given the context. Parts of the testimony caused laughter to break out in the gallery, while other parts led to tears.

There is a book which touches on Zubaydah called Black Banners, by Ali Soufan. I hope to listen to it on the drive to Indianapolis from Andrews Air Force Base on Saturday.

I have had some time to explore the Guantanamo Bay Naval base and will be posting about my down time experience here at Guantanamo Bay as time permits.

Many of the notes 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

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

9/11 Judge Cancels April Hearings

Just received notice that Judge Pohl cancelled the two weeks of hearings that were scheduled to start on Monday, April 4. No announcement has been made as to the reasons why at this point.

Sunset Over Guantanamo Bay

by Catherine A. Lemmer

Meetings with the Defense Teams in Guantanamo’s 9/11 Case

The other NGO Observers and I met with several members of the defense team for Mr. Hawasawi, defendant in Guantanamo’s 9/11 case, at around 5:30 pm Thursday, 25 February 2016. This was shortly after the court hearings let out for the day. Observers are not permitted to attend closed hearings.

Rather than summarize solely what we were told from Team Hawasawi, I will take this opportunity to provide a brief summary of several points we heard again and again when we spoke with defense counsel at the barbecue earlier this week, at the meeting this evening with Team Hawasawi and in court over the past week. Following is a collection of my impressions and is not a direct quotation of any single member of the defense counsel.

Classification and National Security Issues Concerning the Dissemination of Classified Information vs. The Government’s Desire For and Constitutional Requirements For Transparency, a Full, Fair and Transparent Discovery Process :
- Security clearance issues and access to information has been a recurring theme
  throughout this week. The prosecution alleges that they are seeking to protect classified information which if released could damage national security, while the defense claims that the prosecution is hiding the ball by unnecessarily redacting documents, not doing all they can to assist the defense in obtaining security clearances (and actively standing in their way in some cases) and the defense alleges that the prosecutions claims of protecting national security are a impenetrable blanket excuse to not provide near the items requested in discovery that the defense claims they are entitled to. The prosecution argued generally against the judge being involved as the arbiter of disputes regarding the decision to or to not release classified documents to the defense and asserted they are turning over documents as fast as they can.
- Each defense team has between 15-16 persons on that team at any given time. However, we learned via oral argument in court that each team is limited to 10 person with the clearance required to view many classified documents at any given time. During the hearings this week all of the teams had a clearance issue with one or more of their team members access classified evidence and there were several members of the defense teams that were not allowed in the courtroom (they sat in the gallery with the observers, victim’s family members and others without clearance). The defense argues that delays in processing classification reviews of current and future team members are preventing them from providing adequate representation and that the prosecutions effectively has veto power on what evidence they believe the defense should be entitled to. Furthermore, the defense argues that the prosecution has shown that when it serves their interests, they are able to obtain security clearances for defense team members in a very short amount of time (a clearance was obtained Thursday in 29 minutes with help of a phone call from Chief Prosecutor General Martins after a defense team member’s lack of clearance would have delayed the hearing).
- According to the defense, the prosecution’s redactions and refusal to provide documents based on national security concerns are an impenetrable blanket excuse to not provide discovery. The prosecution has argued that the judge is not equipped to make classification decisions and would, in some cases, cut the judge out of objections to over-classification in the discovery process (this would potentially allow the prosecution to be the final arbiter in some discovery issues and provide a fraction of the documents requested).
  Chief Prosecutor Brig. General Mark Martins
- For the prosecutions part on nearly all of these issues, they argued that they are satisfying their duties under the discovery rules while taking the steps they are required to take to protect classified information that, if released inappropriately to the wrong people, could damage national security.
- Issues of security and transparency arose several times this week regarding transcripts of public hearings that were redacted after the fact to remove some of the statements that were publicly made, but were later decided to contain classified information. Members of the Press and the defense moved in AE 900 on Monday for the court to release the full unredacted transcript on grounds that not doing so violated the 1st Amendment and 6th amendment. Tuesday, the day after the defense and members of the press made this argument, the Military Commission’s website failed to post the unofficial, unauthenticated transcript that is normally posted the same day of the hearings here. The next day the prosecution moved to seal several exhibits discussed and the defense pre-preemptively objected to an after the fact redaction. Mr. Connell, learned counsel for al Baluchi objected immediately. I have not heard yet whether members of the press or the defense has filed any motions regarding this issue, but unless it was worked out in the closed session on Thursday, I expect another motion along the same lines of AE 900 will be filed in the upcoming weeks regarding this new after the expected retroactive redaction.
  Chief Judge Pohl originally presided over both the al Nashiri case and the 9/11 case.
A New Judicial System: Several defense members mentioned that there are inherent challenges in the military commissions system because it is such a new judicial system and because it was created after the crimes took place and after the accused were captured. They also mentioned that, from the defendant’s perspective, the Military Commission system appears to be a judicial system created and designed specifically to lead to their conviction and eventual execution (rather than an independent arbiter to reach a determination of guilt or innocence and, if guilt is found, to mete out an appropriate punishment).
Ideal Choice of Law/Forum? When asked, in a perfect world, what forum and/or choice of law would the members of the defense choose for their defendants, none of them suggested the military commissions or in Guantanamo Bay. Their answers were generally that they would choose a U.S. Federal Court on the east coast in the USA (New York and the Washington D C. area were both brought up, but a couple of the attorneys chose a military court in the USA (at Quantico and in New York). One of the attorneys added that, in that ideal world, they would want a separate trial for their defendant divorced from the other four current defendants.
Ramzi Bin al Shibh, a defendant in the 9/11 case, testified Wednesday about conditions of his detention at Guantanamo Bay, Cuba

Conditions of Confinement: Defendants have asked their attorneys to seek relief that will address their current condition of detainment and health. In some cases, the attorneys suggested these were their primary concerns. For example, defendants sought the return of their laptop computers, none of the defendants want to have female guards touch them, the defendants and defense attorneys would like to have more freedom to transmit legal and non-legal mail to and from their client and to third parties, Mr. Hawasawi is in need of surgery & medical care, Mr. Bin al Shibh wishes the judge to stop alleged vibrations and noises in his cell and Mr. al Baluchi would like to have post-torture/PTSD counseling.
Ethical Obligations: The attorneys each have different ethical obligations depending on the agency that is licensing them. For example, learned counsel for Attash, Cheryl Bormann, is licensed by the Illinois State Bar Association and so her ethical rules are different than her co-counsel Army Maj. Matthew Seeger who is bound by the the Army’s Rules of Professional Conduct for Lawyers.
When Will it End?: Estimates of when this case would go to trial varied from 5 years to not in this decade to not anytime soon. No one seemed to think this case would be moving to trial in a speedy fashion (though the right to a speedy trial is expressly not awarded to these defendants via the Military Commissions Act of 2009).

Conclusion

On a personal note, I fly from Guantanamo Bay to Andrews Air Force Base tomorrow morning early and I will drive back to Indianapolis soon thereafter. I hope to post a few more times in the next week or so.

Allow me to take this opportunity to thank the Program in International Human Rights Law’s Military Commission Observation Project at Robert H. Kinney School of Law and Professor George Edwards for allowing me to spend the last week viewing the 9/11 hearings at Guantanamo Bay, Cuba. Over the past week I was able to explore many of the issues surrounding the Military Commissions, the Guantanamo Bay facility from the perspective of an observer and to report to you my findings. I found the experience engaging and though-provoking. I am quite happy that I was selected and that I agreed to participate.

By Matt Kubal, JD, Indiana University McKinney School of Law