Paul Schilling

Wednesday’s war court hearings at Guantanamo Bay

A “hockey light” that flashes red in the Guantanamo Bay courtroom when someone inadvertently reveals classified information. The courtroom gallery is then cleared.

This week I have been in Guantanamo Bay monitoring the war crimes case against the 5 alleged masterminds of the 9/11 World Trade Center attacks. Today, Wednesday, 17 February 2016, we had hearings all morning and most of the afternoon.

I will provide some of my general observations then I will discuss the morning and afternoon sessions.

Personal Observations:

There is a red flashing light, similar to those in a used in a pro hockey game when a goal is scored, near the Judge. If a witness or attorney is speaking in court and inadvertently states classified information, the light flashes, the gallery is cleared. Fortunately, no disclosed confidential information today.
Upon entering the court, the mood was not as tense as yesterday. The four accused present for the morning session interacted with their counsel.
The MPs escort the prisoners to the courtroom. The also bring a tote box with belongings, which appear to contain clothing, legal paperwork, some clothes and a prayer rug, as well as other items.
The accused are not handcuffed when they enter the courtroom.
There were more victims and family members present in court today.
An NYPD detective was present in the courtroom and acknowledged by the prosecution team.
The Chief Defense Counsel, General Baker, was not present for these sessions, but will likely be available next week.
We can often learn more from the body language of the participants than the words they speak. One attorney appeared defeated after arguing a motion. It was written all over his face and in his slumped shoulder as he returned to his seat. This was before the Judge made a ruling.

The 9/11 defendants were wearing ornate scarves similar to this in court today. Unlike in this photo, their scarves were black and white, with the mosque in a brilliant gold. (I don’t know what the Arabic means on this scarf, and could not tell whether there was Arabic written on the scarves of the defendants.)

The Accused

Four of the accused were present in the morning. Khalid Sheik Mohammad (“KSM”) was present. His beard appeared to be partly black and partly dyed, almost red. KSM and the 3 other defendants wore an ornately patterned shawl or scarf, with black shapes on white. The scarf had a prominent gold drawing of what appeared to be the gold dome of the Al Aqsa temple on the material that hangs on the front. The word “Palestine” was prominently embroidered in green on the scarf.

Likewise, Walid bin Attash had what looked to be the same scarf. He laid his scarf over the computer monitor at the defense table. Ali Aziz Ali, wore a prayer cap and wore an al aqsa scarf. Mustafa Hawsawi wore a white cap and an Al Aqsa scarf.

Ramzi bin al Shibh was not present for the morning proceedings. The court heard testimony from a JAG officer from Camp Delta that bin al Shibh voluntarily refused to attend the proceedings. He would attend the afternoon session.

Morning Session:

The session began at 9:30 with Judge Pohl making his ruling on Walid bin Attash’s (“WBA”) request for new counsel. The Judge entered the letters as evidence. The Judge considered the letters as a request to reconsider Mr. Attash’s October motion for new counsel, which was denied. The Court also ordered that an independent counsel be assigned by the Office of Military Commissions, to advise the court as to whether there is an attorney client issue with the Attash team. The Order and corresponding instructions to independent counsel will be under seal.

Immediately after the ruling, WBA’s learned counsel, Cheryl Bormann, argued an oral motion to withdraw as counsel. She argued that she can longer be effective as counsel. She gave some of her background working with the defendant and argued that the constraints of the Military Commission system does not allow her to effectively represent her client.

The Prosecution responded that allowing Bormann to withdraw would greatly inhibit the accused right to learned counsel, which is required by 506(b).

The Judge denied the motion.

Next, the Judge heard KSM’s learned counsel, David Nevin, argue a Rule 406 motion regarding a possbile conflict situation with an interpreter. Mr. Levin has a smooth delivery and, unlike some of the other attorneys here, is concise with his arguments and counterarguments. According to the defense, KSM’s interpreter (for security reasons, the interpreters are not named) has been assigned to the defense team since 2012. He had the required Department of Justice clearance, but at some point in July 2015, he had to wait for the appropriate clearance from the Department of Defense. Another interpreter has been assigned, but the defense prefers the initial interpreter.

The prosecution, through DOJ lawyer Clayton Trivett, contends that, 1) KSM, who attended some college in the US, and understands English (how much is in contention) does not need an interpreter, and 2) the governments duty is to provide an interpreter, which it has, not a specific interpreter.

The Judge asked questions of both counsel. Through the questioning session, the Judge asked the prosecution to determine if the interpreter at question is only waiting for his specific clearance, and how long it would take to obtain it.

Court adjourned for lunch.

Afternoon Session

The afternoon session started at 1:30. The Judge asked the prosecution to inform the court on the information it gathered. Counsel was unable to answer the question directed, but was able to provide a name and contact number. The Judge was clearly perturbed. Ultimately, the Judge ordered a recess and ordered the prosecution to determine the status of the clearance.

We reconvened at 3:35 after an almost 2 hour recess. The prosecution stated that the clearance was in review, with no time frame on resolution. The Judge ruled that it finds that an interpreter is necessary but a specific interpreter is not. The Judge will allow the February proceedings to continue but that the prosecution has until March 16, 2016, to determine the status of the clearance.

The Commission also heard arguments on Motion 396, a motion dealing with the handling of classified documents. Mr. Ali’s learned counsel James Connell presented the argument. Mr. Connell speaks with a rhythmic cadence, and he can control a courtroom. He is one of the better oral presenters we have seen in the case.

The defense argued that they received 8,317 documents marked “classified- pending review”. They contended that this was not a legitimate status, and that no “review” was being undertaken. The defense frog marched through the classifications and concluded a temporary or pending review status lasts 90 days. This has lapsed, thus these documents are no longer classified. Other defense counsel contended that the government is over-classifying documents.

Prosecutor Clayton Trivett argued that this information has been classified by the appropriate authority and remains classified.

The Judge did not rule on the motion.

Tomorrow’s session

Tomorrow’s Commission schedule includes the 397 motion, a motion filed by the government to consolidate 14 defense motions seeking information on the CIA’s former Rendition, Detention and Interrogation Program (a/k/a torture program). Due to the size, scope and importance of this motion, it should be an interesting day.

Friday

Friday’s session will be a closed session. The NGOs will not be permitted to attend. This gives us an opportunity to catch up on our research and blogging.

Evening Meeting – Wednesday

Paul Schilling in the foreground, and fellow NGO Observer in the back, working in the “NGO Lounge” set up at GTMO for NGOs to work.

Some of the materials that the Indiana McKinney Law School has provided for the all NGO Observers to use while on mission to GTMO.

In the evening, we had the opportunity to go to the NGO lounge and get some work done. At 5:30, we had a meeting with the attorneys of the Hawsawi defense team. We met with learned counsel, Walter Ruiz, two assigned JAGs, civilian defense attorney (and former JAG) Suzanne Lachelier, and some of their staff. They explained their roles, some of the challenges attorneys face in death penalty litigation and some of the unique challenges in this case. Of particular interest were some of the challenges faced by the female attorneys on the team. They were down to earth and we were grateful for their insight.

Paul Schilling, J.D., Indiana University McKinney School of Law

Indiana Deputy Attorney General

NGO Observer, Military Commission Observation Project (MCOP), Indiana University McKinney School of Law

(Posted by G. Edwards on behalf of P. Schilling)

Guantanamo hearings begin in 9/11 case

Paul Schilling at Camp Justice. The U.S. flag is flying at 1/2 mast to honor the memory of U.S. Supreme Court Associate Justice Antonin Scalia. (Photo taken 16 February 2016)

Our Guantanamo Bay tents are about 50 yards from the entrance to the war crimes courtroom complex that we walked to at 8:15 a.m. today, Tuesday, 16 February 2016. We had to pass through airport-like security to get into the courtroom. Today’s hearings are in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon.

The Observers sit in the gallery, with a thick protective glass separating our seating area from the defendants, counsel, judge and others in the main part of the courtroom. We stare through the glass at the backs of most of those of the courtroom, facing the judge.

We can see all that happens in the courtroom, as we peer through the thick glass. But our room is soundproof, and we can only hear what’s happening in court when TV screens with speakers are turned on, hanging in front of the glass gallery wall, piping in the audio.

Different sections of the gallery are reserved for the media, NGO Observers, and victims and their families (whose section can be cordoned off by a curtain should they wish). Military personnel may also take some of the gallery seats.

After we were all seated, the 5 accused entered the courtroom.

Each of these 5 accused has a civilian legal counsel and military counsel (Judge Adjutant General (“JAG”) attorneys). Since this is a death penalty case, the Military Commission Act requires that the accused have an attorney that has previous death penalty case experience. Civilian counsel for these 5 defendants have death penalty experience, and they are referred to as “Learned counsel”.

Courtroom Layout

Facing the judge on the left hand side of the courtroom are 5 tables, one for each of the accused, their civilian and military counsel, an interpreter and others on the defense team. In the front and center of the courtroom is the military judge, Judge Pohl. Judge Pohl sits elevated on the bench with a court security officer to his right (the left front of the courtroom), the witness stand to his left (the right front of the courtroom) with the court reporters located below, in front of the judge. A speakers’ podium sits front and center of the judge and courtroom. The prosecution sits on the right side of the courtroom. General Mark Martins is the Chief Prosecutor for all the U.S. Military Commissions. We was present in court today and was seated with and assisted by attorneys from the Department of Justice and the Department of Defense, interpreters and 3 JAG officers. To the far right of the courtroom is the jury box. Since these hearings are for pre-trial discovery motions, there is no panel present. Military Police (“MP”) personnel are located to the far left of the courtroom, along the left wall, and are seated there after escorting the defendants into the courtroom. The are approximately 2-3 MPs for each defendant. Paralegals, interpreters, MPs and other court personnel are located in the courtroom and may move about freely.

My general observations

As Observers, behind the glass, one of the ways we can best observe the proceedings is by closely observing the interactions of the players. Here are some of my observations.

All 5 accused wore glasses entering the court and removed them as the proceeding went on
Kalid Sheikh Mohammad’s beard was partly black, partly white and partly orange. It looked like it was dyed.
All of the accused interacted with their attorneys. They shook hands, smiled and appeared to listen to their attorneys. In fact, the interaction was similar to what you would expect to see between a defendant and his attorney in a criminal trial in a regular U.S. courtroom.
Two of the accused, Ali Aziz Ali and Mustafa al Hawsawi, spent much of today’s short court session talking to one another.
I thought Judge Pohl did an excellent job maintaining courtroom order and decorum. He set out to explain things to the accused, and apparently sought to understand any concerns raised by the accused or counsel. He appeared to ask pertinent, difficult questions. It seemed clear to me that he was in control of the hearing and has respect of counsel on both sides.
The Observers are viewing the hearing in real-time, through the glass. However, the audio is delayed 40 seconds, for security reasons we were told. This can make for awkward viewing. For instance, we can see the personnel in the court stand up when the Judge enters. However, we do not hear the “all rise” command until almost a minute has passed. It can also make it difficult to determine when someone has finished speaking. We can see them depart the podium, but we are still hearing their final remarks on the audio feed.

Proceedings

Today’s hearing did not begin until 9:15, about 15 minutes behind schedule. Once the Judge was seated, he took the appearance of the parties and advised the accused of certain rights that they have. He explained that the accused had a right to be present and it was their personal choice to attend or leave. Most of the gallery was waiting in anticipation to hear the accused speak. Each of the accused affirmed orally that they understood their rights as explained by the judge. As Observers, we realized this is one of the few occasions that we may have to actually hear the accused speak, since during most hearings traditionally the lawyers and the judge do the talking. The Judge explained what motions were going to be heard and asked defense counsel if there were any issues.

One of the defendants, Walid bin-Attash, expressed his desire to dismiss his learned counsel and military counsel. From the testimony received and the judge’s statements, it appears that bin-Attash sent a letter (in arabic) to the Judge. When questioned about the letter, bin-Attash stated that he did not trust his attorney and wished for new counsel. It is my understanding that his lead attorney, Cheryl Bormann has been on the case since the beginning. bin-Attash also expressed his intent to dismiss his other counsel, Michael Schwartz. Schwartz was his previous military attorney. Based on the testimony of his new military attorney, US Army Major Michael Seeger and bin-Attash, Seeger has only been on the case a very short period of time. The Judge questioned counsel regarding an attorney’s duties to his/her client. The Judge also questioned the accused regarding his intentions and whether he wished to retain Seeger. bin-Attash also provided the court with a second hand-written letter at the hearings, expressing his desire for new counsel.

The court allowed for input from other defense counsel and the prosecution.

After about an hour and a half, the court went into recess until tomorrow. The Judge decided to have the letters translated and he would reconsider the request to dismiss counsel tomorrow.

For now, we are scheduled for a full day of hearings tomorrow, with the total hearing time today being only about 90 minutes.

Paul Schilling, JD graduate, Indiana University McKinney School of Law

(Published by Professor George Edwards on behalf of Mr. Shilling.)

Arrival at Guantanamo Bay Today

Camp Justice — Where we are staying during our week at GTMO. Photo by Catherine Lemmer, IU McKinney School of Law)

Our flight to Guantanamo Bay was delayed leaving Andrews Air Force Base. We arrived at Guantanamo after a 3 hour flight. We were processed through the arrival gates and loaded a ferry to the main post. I found it interesting that all of the victims’ families, defense counsel, prosecutors, media, court stenographers and NGOs traveled on the same flight.

Our group of NGO Observers is staying at Camp Justice. Camp Justice is essentially rows of Quanset hut type tents. Our tents are air conditioned, with a 6-8 small bunks. We have a refrigerator, lights and electricity in all of the tents. Bathroom (latrine) tents and shower tents are located nearby. We were given a short period of time to get settled in. We then headed to the security office to obtain our badges. Badges are required for all NGO Observers, media, and others when occupying Camp Justice. We were given a short briefing regarding some of the rules and conditions. Our cell phones will not work (phone calling cards are available). Wi-Fi is very limited and available on some hotspots on the main post. We can, however, buy internet access through an Ethernet connection. It is slow, but it works.

One of our Camp Justice tents.

We later took a tour of the main base. And, as the highlight of the evening, we were invited to a barbeque with some of the defense counsel. When asked about the volume of filings in the case, one attorney remarked that the 9/11 hearings have over 11,000 pages of transcript and over 20,000 pages of motions. We also learned that the public transcripts are usually available online within 24 hours. It was an opportunity for us to talk to the counsel, as attorneys, and get their input on some of the questions we had.

On a sad note, we learned of the passing of Supreme Court Justice Antonin Scalia, when one of our NGO attorneys drew our attention to the CNN headline.

There are no hearings scheduled for tomorrow. Sunday is Valentine’s Day. The dining facility will host a Valentine’s Day brunch. We are scheduled to tour the lighthouse and receive a briefing from Brigadier General Martins, the Chief Prosecutor of the US Military Commissions.

I recognize that I am the eyes and ears into Guantanamo Bay and the Military Commissions for many people in Indiana and elsewhere who will not have the opportunity to visit this base. In upcoming blogs I will report more on the substance of our monitoring work, as well as my other experiences here in Cuba.

Paul Schilling

Indiana University McKinney School of Law, JD Graduate

Indiana Deputy Attorney Geberal (posting in personal capacity)

(Posted by G. Edwards on behalf of P. Schillng)

At Andrews Air Force Base Traveling to Guantanamo Bay

Paul Schilling reading the Guantanamo Bay Fair Trial Manual, published by Indiana’s Military Commission Observation Project. The Manual, which comes in 2 Volumes, provides insights into rights and interests of all stakeholders in the Guantanamo Bay U.S. Military Commission process.

Paul Schilling is traveling to Guantanamo Bay, Cuba, today (13 February 2016) to monitor U.S. Military Commission hearings in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon.

Schilling is representing the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law’s Program in International Human Rights Law. I am the founding faculty director of this program, and because Paul had technical issues in posting from Andrews, I am posting a few photos on his behalf.

Schilling was selected from Indiana McKinney Law School affiliates, which includes faculty, staff, current students and alumni. Our Program has sent dozens of Affiliates to Guantanamo Bay, Cuba to monitor Military Commissions live, and to Ft. Meade, Maryland, where Affiliates can monitor hearings broadcast via a secure videolink into a theater on the Ft. Meade base.

AAFB - Air Terminal - 13 Feb 2016 - Paul Schilling

View of Andrews Air Terminal from the tarmac.

Schilling currently serves as Deputy Attorney General of Indiana, and is a veteran of Afghanistan. You can read his posts on this page: GitmoObserver Blog. Schilling is blogging in his personal capacity and not on behalf of his employer or his law school, with his opinions being his own.

More information about the Military Commission Observations Project can be found at this link: MCOP Link

AAFB Barracks- 13 Feb 2016 - Paul Schilling

Bunkers at Andrews Air Force Base that house Air Force One.

To download a free copy of Volume I and Volume II of the Guantanamo Bay Fair Trial Manual, click here: Manual

George Edwards

Preparing to Travel to Guantanamo Bay

: U.S. Military Commissions charging defendants with war crimes are held at Camp Justice at Guantanamo Bay, Cuba. (Photo by Catherine Lemmer, Indiana University McKinney School of Law)

I am a practicing attorney with the Office of the Indiana Attorney General and an alumnus of the Indiana University McKinney School of Law. I am also a veteran of Afghanistan. I was selected to travel to Guantanamo Bay, Cuba (“Gitmo”) to represent the Military Commission Observer Program (“MCOP”) which is part of the law school’s Program in International Human Rights Law (“PIHRL”). This program, which was founded by Professor George Edwards, sends law school affiliates to Guantanamo to monitor hearings in criminal cases related to a range of international crimes. My participation in this program is in my own personal capacity, and my blog posts and other comments are my own, and not of my employer or of my law school.

Updated — Here I am at Andrews Air Force Base on Saturday, 13 February 2016, waiting for my flight to Guantanamo Bay. I’m reading the Guantanamo Bay Fair Trial Manual that Professor George Edwards developed to help Observers understand rights and interests of stakeholders, and help them as they monitor the Military Commissions

I am scheduled to monitor the hearings scheduled for February 15-19, 2016, in the case against 5 alleged perpetrators of the 9/11 attacks on the World Trade Center Towers and the Pentagon.

I was previously scheduled to attend hearings in the case against Hadi al Iraqi, who was allegedly a liaison between al Queda Iraq and the Taliban. Those hearings were postponed. Those hearings were in Gitmo, but I was going to monitor them from a remote viewing site – at Fort Meade, Maryland, where the Gitmo courtroom proceedings are simultaneously projected by secure video link.

The Role of the Observers

The MCOP sends observers to Guantanamo Bay, Cuba to monitor the commission hearings in person. Our role as observers is to attend, observe, analyze, critique and report on the proceedings. We seek to gather information that sheds light on whether the rights of all stakeholders have been afforded to them. A stakeholder is an individual (or organization) holding rights and/or interests in the Military Commissions. Military Commission stakeholders include, for example, the defendants, defense counsel, the prosecution, victims and their families, judges, witnesses, the press, the international community and countries with detained citizens at Gitmo.

The MCOP has been researching international and domestic U.S. Law that governs the Military Commissions, and analyzing it in the Guantanamo Bay Fair Trial Manual. The Manual, which is in draft form, is used by Observers and others interested in ascertaining whether a fair trial is being afforded to all stakeholders.

Background:
In preparation for my trip, I took some time to review the charges and some background research on the defendants. On September 11, 2001, 19 men hijacked 4 planes in the US. Two planes crashed into the World Trade Center towers in New York City, 1 plane crashed into the Pentagon and the fourth plane crashed in Somerset County, Pennsylvania. In all 2,921 civilians were killed as a direct result of these attacks. Al Queda, a reported terrorist organization said to be run by Usama Bin Laden (“UBL”) claimed responsibility for the attacks.

Court documents charge that al Queda planned for the 9/11 attacks for years. It was charged that in August 1996, UBL proclaimed a holy war against the US, and that Khalid Shaikh Mohammad (“KSM”) and UBL discussed hijacking commercial airliners and crashing them into buildings in the US. Preparations would have included identifying the “pilots”, obtaining visas, funding the terrorists, flight schools and simulators and casing airport security to determine the feasibility of an attack.

All 5 of the defendants in the case I am scheduled to observe were allegedly involved in the planning process and allegedly provided material support to the hijackers.

Khalid Shaikh Mohammad

KSM and and the other co-defendants, Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hasawi are charged as having participated in various stages leading up to the 9/11 attacks.

The official charges against the defendants include the following, though it is not clear whether all the charges (e.g., the crime of conspiracy) will survive challenges by the defense:

Charges: All Defendants:
1. Conspiracy;
2. Attacking Civilians;
3. Attacking Civilian Objects;
4. Murder in Violation of the Law of War;
5. Destruction of Property in Violation of the Law of War;
6. Hijacking or Hazarding a Vessel or Aircraft;
7. Terrorism

The Military Commission Observation Program requires me to submit daily blog entries. My next blog post will be from Andrews Air Force Base, from where we are scheduled to fly to Gitmo on Saturday morning, February 13, 2016.

My next substantive blog post will likely summarize some of the motions that we are expected to hear this coming week. Also, I will report on my trip to Guantanamo Bay, noting my observations.

I recognize that I am serving as the eyes and ears of many people who will never be permitted to travel to Guantanamo Bay, Cuba. I feel a special obligation to report comprehensively, thoroughly, and accurately on behalf of those who are not as fortunate as I am to have such an opportunity.

Paul Schilling — J.D. ’10, Indiana University McKinney School of Law; Indiana Deputy Attorney General (participating and commenting in my own personal capacity and not that of my law school or my employer).