Professor Catherine Lemmer at Guantanamo Bay, Cuba, December 2015
There were no open hearings today, December 7, 2015, in the 9/11 case. The hearings were closed for a 505H hearing during which the prosecution, defense teams, and judge addressed a number of evidentiary issues.
One of the on-going matters the parties discussed today was the use of female guards in the detention camps. The inmates object to the use of female guards for religious reasons. The court heard, during the open session in October 2015, extensive testimony and evidence on this issue. Despite that the court was in open session the transcript has been significantly redacted and is now labeled: “Unclassified For Public Use.” This means that the previously available information is now classified. For example, there is less than one page of transcript for the 11:16 AM to 12:28 PM session on October 30, 2015.
All the transcripts are available on the Military Commission site. The unofficial word is that the female guard issue will be continued in the February 2016 hearings. Judge Pohl will hear additional classified evidence at that time. Until such time, the interim order will remain in place that prohibits female guards from interacting with the defendants for purposes of “legal activities.” For example, transporting the defendants to attorney meetings or to court. It is an order limited to legal matters, therefore the female guards are not prohibited from interacting with the defendants in such instances as escorting them to the recreation area or for matters other than legal.
The unofficial word is that the Military Commission will conduct four days of hearings starting tomorrow morning. At that point Judge Pohl will engage in a colloquy with each defendant regarding his right to be present in the courtroom. This colloquy occurs each time the hearings are convened.
As the NGO Observers were not able to be in the courtroom, we visited the Navel Exchange (NEX) for supplies. There was a huge Christmas display in the entrance to the NEX; many of the units decorate a Christmas tree. The Christmas tree pictured above features two local wildlife — the iguana and the banana rat.
The NGO Observers were taken on a drive up on the windmill ridge. From there you could see the entire naval station. The JTF detention centers are on the other side of the island and off-limits to the NGO Observers.
By: Catherine A. Lemmer, 7 December 2015, 9/11 Hearings, Guantanamo Bay
On Wednesday, February 11, Judge Pohl called for the parties to suggest motions that could be heard outside of the 292 conflict-of-interest matter and the prior CIA black site interpreter matter (350). There was an aura that the 9/11 hearings were on life support as the prosecution and defense struggled to put motions on the table that could be argued during the remainder of this week. Mr. Walter Ruiz, Learned Counsel, proposed a number of motions that deal only with his client, Mustafa al-Hawsawi.
This morning he called to order the Military Commission to hear arguments on a variety of outstanding motions. Defendant Mr. al Baluchi chose not to attend the hearings today. As a result, the first few minutes of the proceedings dealt with an Officer of the Judge Advocate General Corp’s office testifying that he had informed Mr. al Baluchi of his rights to attend and to obtain his waiver. Typically when this happens the prosecution files a “submission of alias” because the testifying officer does not provide his name on the witness stand. Learned Counsel for Mr. al Baluchi, James Connell, noted on the record that the prosecution had not made such admission this morning.
David Nevin, Learned Counsel for Khalid Shaikh Mohammed, again went on the record to make an on the record motion (and to indicate that he will be filing a written motion) to halt all proceedings until such time as the matter of the former CIA black site interpreter issue is resolved. Again, he was overruled.
Today’s activity focused on motions focused by Mustafa al-Hawsawi. Mr. Walter Ruiz, Learned Counsel, argued the following motions:
AE192 & AE196 Motion to Seek to Disqualify Legal Adviser, Office of the Military Commission Due to the Unlawful Interference with the Professional Judgment of the Chief Defense Counsel and Detailed Learned Military Counsel. Mr. Ruiz requested that Judge Pohl go forward with an analysis of the underlying facts and law because these circumstances are representative of an instance of unlawful influence in the proceedings. The issue of unlawful influence does not resolve itself simply because those involved have left the Office of the Military Commission. Ms. Bohrmann, Learned Counsel, for Mr. Walid bin Attash, similarly urged Judge Pohl to undertake the analysis and make a ruling.
AE332 & AE340 Motions to compel discovery of Mr. Hawsawi’s medical records and access to medical personnel who treat Mr. Hawsawi. Mr. Ruiz requested access to medical records and medical personnel in order to judge the standard of care his client is receiving and also to help Mr. Hawsawi make medical decisions. His health has showed signs of deterioration. The prosecution challenged these motions by arguing that the medical issues are arising out of a December 2014 incident in which Mr. Hawsawi was injured while in detainment. The prosecution also stated that his medical records, which were classified, are being declassified and delivered to the defense on a rolling basis.
AE303 Motions addressing conditions of confinement. Mr. Ruiz argued that the circumstances of confinement at Guantanamo Bay violate humanitarian law. He did note that there has been one change. For example, Mr. Hawsawi did not have any access to his family from 2003 through most of 2014. In October 2014 a process was put in place to allow the defendants to record messages that will be delivered to their families. In January 2015 a process was put in place to enable the defendants to Skype with their families. His overall focus was that quality of life will equal quality of defense and that the United States has a legal duty to abide by the law. The prosecution urged Judge Pohl to stay out of the detention role and noted that the Geneva Convention does not apply to these defendants because they are “alien unprivileged enemy belligerents.”
AE214 & AE214A Motion to Compel Mr. Hawsawi Access to the Government of Saudi Arabia in Compliance with United States Law and Motion to Compel Prosecution to Produce Un-redacted Copies of Correspondence etc. Pertaining to Requests by Saudi Arabia to Meet With Its Citizens Held in Guantanamo Bay Mr. Ruiz urged Judge Pohl to order this discovery so that Mr. Hawsawi would have access to officials of his home state, Saudi Arabia.
At the conclusion of lengthy oral arguments, Judge Pohl asked if there was any further outstanding matters. Again David Nevin renewed his concern that the legal proceedings were continuing in light of the 292 and 350 matters.
James Harrington, Learned Counsel for Ramzi bin al Shibh, brought up what he called a “simmering problem.” He stated that the manner in which the defendants are handcuffed/shackled has changed and that as a result the defendants are experiencing injuries. Mr. Harrington noted that the defendants are not attending attorney-client meetings rather than suffer the injury. He asked Judge Pohl to ask the prosecution to look into the matter and see if the issue can be corrected.
The proceedings concluded with James Connell, Learned Counsel, asking Judge Pohl to issue an subpoena or other relief to provide the defense access to the former CIA black site interpreter. Judge Pohl declined to do so and asked for a written motion.
(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)
The 9/11 hearings are in recess because defendant Ramzi bin al Shibh alleged in the courtroom that the interpreter at his defense table had been at a CIA black site. Defense counsel for Walid bin Attash, Cheryl Borhmann, then indicated that her client had informed her of the same. Court is in recess until 10:30 am. General Martins’ prosecution team has been called to court to deal with the issue. His team was not in court because the Special Review Team was representing the government on the FBI conflict of interest matter.
(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)
Earlier today the prosecutor provided the updated 9/11 court filings on cds. They also provided two dvd/cd drives for those NGO Observers whose laptops no longer have dvd/cd drives! Technology sure has a way of complicating things on days.
(Catherine Lemmer, Guantanamo Bay, 9/11 hearings, February 9-13, 2015)