Khalid Shaik Mohammad

Pre-Hearing Thoughts Fort Meade 9/11 Case – Matt Kubacki

I write this after a few days of recovery from the July 2014 Bar Exam, so not only is there excitement to attend the hearings, but also much relief to have finished the Bar. That being said, please excuse any errors, my brain still has not recovered (those who have taken the Bar will know, those who will can consider this something to look forward to). The timing is perfect as it comes after a week of post-bar recovery and a few days before I return to the Marion County Prosecutors Office.

My thoughts leading up are to do as much background research on Khalid Sheikh Mohammed as possible, reviewing prior posts here, and making sure to thoroughly review all the documents provided to us. After telling family and friends of this opportunity, I realize more just how unique this opportunity is. The ability to watch, hear and report on these proceedings will truly be once in a lifetime.

I will be driving from Indiana to Fort Meade Sunday 8/10 and returning Tuesday 8/12, so my time will be short, but as detailed as possible. We have been provided with a checklist of sorts that we are to be referring to during the hearings, so I will be basing most of my general descriptions from that. From a personal standpoint, I will be interested to see how the hearings proceed and whether they incorporate the “fairness” aspect of the Judicial system that we are taught in law school. I know many in the press and public are skeptical, but I’ll refrain from voicing my opinion until I am able to witness the proceedings. My thoughts/observations will also draw from my experience with the Prosecutors Office, but fear not, I am not one to think everyone is guilty by their appearance in the courtroom.

I see that comments are available here, so if any interested readers are curious or would like something answered, please do not hesitate to post. Until the next post!

-Matt Kubacki, 2014 IU McKinney Law Graduate-

Training to Monitor Trials at Guantanamo Bay

MCOP - Pre-Departure - 11 April 2014 - Classroom shot

IU McKinney Law Affiliates During Briefing to Monitor Guantanamo Bay trials. Some in the photo are members of Professor Edwards’ Spring 2014 International Law class that studied the international law aspects of the 9-11 attacks, other crimes, and jurisdiction to try such crimes.

Guantanamo Bay Briefing

This photo is the of first group of Indiana University McKinney Law School Affiliates to be part of a Pre-Departure Briefing for monitoring US Military Commission hearings.

The Pentagon awarded IU McKinney’s Program in International Human Rights Law (PIHRL) special “NGO Observer Status” permitting the PIHRL (pronounced “Pearl”) to send IU McKinney Affiliates (students, faculty, staff and graduates) to monitor hearings at Guantanamo Bay, Cuba or at Ft. Meade, Maryland. The training of this first group took place in Indianapolis at the law school on Friday, 11 April 2014.

The MCOP Briefing Book — About 2000 pages on Military Commission law and practice. Participants were also provided copies of the 1949 Geneva Conventions and the Protocols Additional.

In the picture are four IU Affiliates who traveled to Ft. Meade in April for hearings in the 9-11 World Trade Center bombing case and the 2000 U.S.S. Cole bombing case. Also pictured are two IU Affiliates who traveled to Guantanamo Bay for hearings in both those cases in April.

Mr. Rick Kammen (center of photo with jeans and light top), who is a lawyer for defendant al Nashiri in the USS Cole Case, lectured on the history of U.S. Military Commissions, substantive and procedural law related to the Guantanamo Bay Military Commissions, litigation strategies, and the logistical difficulties associated with trying cases at a base on an island, away from the Mainland U.S.

Those pictured whose mission was to Ft. Meade are Jeffrey Kerner, Jeff Papa, and Hattie Harman.

Judge Pat Riley (Indiana Court of Appeals) is pictured behing Rick Kammen’s right shoulder.

Professor George Edwards (PIHRL Founding Director & MCOP Founding Director) appears at the far right of the photo.

Absent from the photo above are Jeff Meding (who was in Washington DC for his flight from Andrews Air Force Base to GTMO the next day) and Luke Bielawski, who went to Ft. Meade. Luke is in the photo below.

Briefing Book

Left to right: Luke Bielawski (Ft. Meade, USS Cole), Jeffrey Werner (Ft. Meade, 9-11), George Edwards (Ft. Meade, USS Cole; Guantanamo Bay, US v David Hicks), Judge Patricia Riley (Guantanamo Bay, USS Cole), Jeff Papa (Ft. Meade, USS Cole) & Hattie Harman (Ft. Meade, 9-11). Absent is Jeff Meding (Guantanamo Bay, 9-11, who was en route to Andrews for his GTMO flight)

The Pre-Departure Briefing Book of the MCOP was compiled by Mr. Jeff Meding, Ms. Qifan Wang, Ms. Kristin Brockett, and Professor George Edwards. For each cycle of hearings, a Supplementary Briefing Book will be prepared and distributed to all participants. A copy of our Briefing Book is now permanently housed in the NGO Observer Compound at Guantanamo Bay for subsequent McKinney Affiliates and others to use on their Missions to GTMO for hearings or trials.

Hattie Harman at Fort Meade – 9/11 Case (17 April 2014)

Special Counsel Appointed to Investigate FBI Infiltration of 9-11 Defendant’s Defense Team
As Jeff Meding posted earlier, the main event of Thursday’s short hearing was the government counsel acknowledging that special counsel Fernando Campoamor-Sanchez has been appointed to represent the government on the issue of the alleged FBI infiltration of Binalshibh’s defense team (seeking information about Mohammad’s defense team) (AE292). Campoamor-Sanchez is best known for his role in prosecuting the Chandra Levy murder in 2011 when he was an Assistant United States Attorney (AUSA).

After today’s hearing, the Miami Herald reported that by Thursday evening, the 9-11 case Judge Pohl had “appointed two unnamed independent defense counsel” to advise Mohammad and Binalshibh with regard to the potential conflict of interest that may arise within their defense teams stemming from the FBI investigation. And at Thursday’s hearing, Judge Pohl left open the possibility that, depending upon what is revealed in discovery into the FBI investigation, the other defendants may also need separate counsel for this purpose.

Can Defense Counsel Bring Back to GTMO Defendant’s Notes Written at GTMO?
Another interesting issue addressed Thursday was defense counsel Cheryl Bormann’s request that Judge Pohl issue an order from the bench allowing her to bring writings made by her client Bin Attash back to him at Guantanamo. Apparently counsel had been permitted access to writings her client made that related to his defense, and was permitted to take them from Guantanamo in order to use them in the development of the defense. But when she attempted to bring them back to discuss in conference with Bin Attash, the “Privilege Review Team” (PRT) refused to allow it. Judge Pohn granted Bormann’s request.

Khalid Shaik Mohammad’s Defense Counsel to Leave
Finally, Army Major Jason Wright, one of Mohammad’s defense counsel, informed the court that he likely will be leaving the defense team this summer. As an Army JAG officer, Wright is required to complete his LLM degree after attaining the rank of Major. This would require him to leave his present assignment as counsel for Mohammad. Wright’s deferral request was denied, and he has been ordered to report for his LLM assignment in July. Major Wright informed Judge Pohl that he determined that his obligation to his client must take precedence and for that reason he has resigned his commission and will be separated from the Army on August 26. This will allow Wright to represent Mohammad through the June hearings and hopefully at the August hearings as well.

No luck visiting the NSA!

Post-Hearing on Thursday
After Thursday’s hearings adjourned, I took a quick tour of the base on my way to the airport.

I was unable to see the National Security Agency (NSA) headquarters, though, as I was confronted by signs as pictured at right. And while I was unsuccessful at convincing Military Police Officer Robinson to take my photograph by the main gate, I was able to convince him to allow me to take his photo by his police vehicle. I must say that everyone I encountered at Fort Meade was most gracious and helpful.

Fort Meade Main Gate

Officer Robinson

Touch Down at Indianapolis Airport–Met by police, fire trucks, sniffer dogs!
Things got even more interesting on my return trip to Indianapolis, when the Southwest flight on which I was traveling landed on time and then taxied into what seemed like the middle of nowhere! The plane was surrounded by police and fire trucks. Passengers were deplaned by stairway onto the tarmac where we and our carry-on luggage were sniffed dogs handled by TSA agents. We were then bussed nonchalantly to the terminal to continue on our way.

I later read news reports that my flight had requested an “emergency landing” after having received a “threat.” Precisely what the threat was, I still do not know! But I arrived home from Fort Meade safe and grateful for the wonderful experience of serving as an observer on behalf of McKinney’s MCOP team.