I traveled to Guantanamo Bay, Cuba from 11 to 18 November 2017 to observe military
Four other NGOs and I at Guantanamo’s Camp Justice that week
commission proceedings against Mr. al Nashiri, who is facing war crime charges as the alleged mastermind of the October 2000 bombing of the USS Cole that killed 17 U.S. sailors and wounded dozens more. I am a student at Indiana University McKinney School of Law, and I was a non-governmental organization (NGO) representative on behalf of McKinney’s Military Commission Observation Project. I was there to attend, observe, be observed, analyze, critique, and report on my experiences.
My Previous Guantanamo Observation
Lighthouse at Guantanamo
Court was in session four of the five days during my week at Guantanamo. Most of the witnesses were called by the prosecution to testify about evidence they had collected from the USS Cole after the bombing and to verify the chain of custody.
Some of the witnesses were called to testify about the ongoing professional responsibility issue in the case. The issue is complicated, and is discussed more in-depth here and here.
In brief, Mr. al Nashiri’s Learned Counsel (an attorney who is experienced in death penalty cases) and two other civilian attorneys for Mr. al Nashiri did not travel to Guantanamo Bay for hearings that week as they contended that the Chief Defense Counsel of the Military Commissions released them from representing Mr. al Nashiri for “good cause.” The Judge disagreed with the Chief Defense Counsel’s decision and held him in contempt for refusing to rescind his order to release counsel and for refusing to take the stand and testify about the issues. The Judge has asserted that these three defense counsel have “abandoned” Mr. al Nashiri.
In January 2018, the Judge ordered the prosecution to subpoena the three defense counsel and recommended that the remaining defense counsel, LT Piette, become “more comfortable handling capital matters” so that the case can continue forward. The case did arguably move forward in January, in the sense that hearings were held that month, with LT Piette sitting in the courtroom as the only lawyer representing Mr. al Nashiri.
The Judge is awaiting decisions from two federal district courts.
Now that time has passed since I observed Mr. al Nashiri’s proceedings I have had time
In front of the North East gate which separates the U.S. and Cuba
to reflect on his case, and on the military commission proceedings in general.
U.S. military commissions are not new, and in fact have been around since the Revolutionary War. Our current military commission process is guided by the Military Commission Act (MCA) of 2009, which built upon the MCA of 2006, which followed from an Executive Order signed by President Bush in 2001. The MCA of 2009 is the legal authority for this court-martial/federal criminal court hybrid, and a legal observer can see the qualities of both criminal processes present in these military commissions.
Guantanamo defendants and defendants in the U.S. are under law meant to be afforded due process, and all have the Constitutional right of habeas corpus. On the other hand, their trials are guided by two different, but similar, rules of evidence. Both courts-martial and military commissions are generally open proceedings, but both can be closed for classified sessions. Courts-martial and military commissions both have a panel of military members and are not a trial by a judge or with a civilian jury.
Reasons for Wanting to Return
Flying over Cuba
I hope to travel back to Guantanamo Bay, Cuba to either continue monitoring the commissions against Mr. al Nashiri, or to begin monitoring the commissions against Mr. Khalid Shaik Mohammad, also known as “KSM”, and his four co-defendants, also known as the “9/11 five.” I want to return to monitor the commissions against Mr. al Nashiri because I have observed his hearings in the past, and I have since been following his case.
I am also interested in observing the 9/11 five since the courtroom and military commission proceedings were designed to specifically try the 9/11 defendants. Further, I was in 2nd grade when 9/11 happened, and it is an event that I remember clearly and grew up learning about. It is an event that affected nearly everyone in the U.S. and beyond. In addition, 9/11 was a key event that changed how the U.S. combats terrorism and seeks to protect national security. I would be interested in observing and analyzing how the government is working towards those goals of counterterrorism and national security via the military commissions.
In addition to traveling to Guantanamo Bay, I would like to travel to Ft. Meade, Maryland, where the Guantanamo proceedings are broadcast by live CCTV to a secure room. This will offer me another perspective on the issue of openness and transparency of the proceedings, which is outlined in the MCA.
While I was observing the military commissions against Mr. al Nashiri in November
Camp Justice, where I lived with the other NGOs for the week
2017, I was taking courses in Counterterrorism, Evidence, Professional Responsibility, and Criminal Procedure: Investigation back at Indiana University McKinney School of Law. I found all these classes to be helpful in understanding what was happening in the courtroom. I believe I will now have an even fuller understanding of what is happening in the courtroom since I have completed those courses. I am now currently taking Military Law and Criminal Procedure: Adjudication. Considering the military commissions are essentially halfway between a court-martial and a federal criminal trial, all the mentioned classes are very helpful. I also greatly appreciate that I have the opportunity to observe what I am learning at McKinney in the real world.
Further, I would have the opportunity to achieve the goals of McKinney’s Military Commission Observation Project: to attend, observe, be observed, analyze, critique, and report on my experiences. I would be able to bring what I observed first-hand, critique and analyze it, and share it with the public via the Gitmo Observer.
Jessica Ayer (J.D. Candidate, ’19)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
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.
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)
I have been nominated by the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law and confirmed by the Pentagon to attend the military commission hearings in the case against Khalid Shaikh Mohammed and four other alleged masterminds of the 9/11 attacks. I will be observing from the military commission court at Guantanamo Bay, Cuba, from 14 October until 21 October 2017.
Previous observations and nomination
This will be my third observation in the 9/11 proceedings. My first observation was at Ft. Meade, Maryland, where I observed hearings in the same case as this observation, against Khalid Shaikh Mohammed, et al., via CCTV in October 2016. My second observation was in January 2017 at Guantanamo Bay, Cuba, where I had the chance to observe the hearings in the case against Hadi al Iraqi, an alleged high-ranking member of al Qaeda.
Speaking with Professor George Edwards at Ft. Meade, Maryland before leaving back to Indiana after observing a pre-trial hearing via CCTV.
I was initially nominated to observe earlier this month at Guantanamo in the case against Hadi al Iraqi, but the hearings were canceled due to Hadi’s health and an urgent medical issue. The Miami Herald reported that Hadi had been referred for neck surgery after a period of time of known health issues. Hadi also had lower back surgery in early September 2017 that he is recovering from.
In order to observe through the MCOP, there are various levels of forms to be submitted to both the Program Director, and the Pentagon.
Pentagon Requirements The documents required by the Pentagon are 1) Hold Harmless Agreement, 2) Invitational Travel Worksheet, 3) Navy Base Access Pass Registration, and 4) NGO Ground Rules, along with a biography and picture. As an observer going through an Indiana University program, the forms must go through the appropriate channels in order to be approved by the university prior to sending to the Pentagon. Note to future observers: this will take time. Be sure you submit your paperwork immediately to avoid potential delays.
Once I received the stamped approved documents from IU, I forwarded these requirements to my Pentagon contact. The Pentagon contact will complete their formal review process, and will email confirmation if everything is in order. This may take a few days.
MCOP Requirements The MCOP document procedure is more simple than the Pentagon procedure. In order to participate through the MCOP, the observer must timely submit any and all Pentagon-related communication to the Program Director. He will facilitate the initial document review, IU review, and final review prior to submitting anything to the Pentagon. This will help in avoiding potential delay if any information is missing from the forms.
The MCOP requires for the participant to submit blog posts to this blog as a program requirements, an MCOP checklist to be completed by the observer, and proof of health insurance for the observer going abroad or even observing domestically.
The female NGO tent that will be “home” for the next week at Guantanamo Bay, Cuba.
Preparation: The Gameplan
To prepare for my observation, I am re-reading the Know Before You Go to Guantanamo guidebook, since it has been a few months since my last observation. I need to prepare appropriate clothing to take with me on the weeklong trip, which includes professional clothing for events and hearings, and casual clothing for downtime. The observer is also responsible for booking her own travel to and from Andrews Air Force Base outside of Washington, D.C., and any overnight accommodations that are necessary on the night before arrival into D.C. and the day of return from Guantanamo. My university-sponsored foreign health insurance is in place and my itinerary is scheduled.
This week is fall break for my law school, but I still have assignments and a mid-term exam to prepare for and complete in the next couple of days prior to leaving for D.C. on Friday morning.
Sheila Willard (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
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.
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.
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.
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
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.
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”.
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
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.
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.
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.
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