2L student Adam Kirchner is currently observing the KSM hearings in Guantanamo. This article, describing his experiences as an observer, was featured in “The Public Record” today:
The Guantanamo Bay Military Commission Hearing, United States v. Mohammed, et al., resumed on Tuesday after adjourning on Monday. As expected, all of the accused waived their right to appear at their own hearings, with co-defendant Walid bin Attash’s criticism of the trial’s process still echoing from the day before. Bin Attash had described the process, given the detainees’ inability to communicate with their attorneys without the government listening in, as undermining the establishment of trust in the attorney-client relationship— and the legitimacy of the hearing itself. . Bin Attash, Khalid Sheikh Mohammed, and three other co-defendants, are charged with violations of the Military Commission Act of 2009 for their alleged roles in the preparation for the 9/11 terrorist attacks.
Only the Judge is in Control, Except on Monday
Immediately following the issue of the non-present defendants, Presiding Judge James Pohl addressed the pressing question of who, exactly, is in control of his courtroom. In Monday’s hearing, all but the prosecution were surprised when the audio feed to the gallery of press, NGOs and the families of 9/11 victims suddenly halted when defense counsel for KSM uttered the title of a motion pertaining to his client’s detention at a CIA sponsored black-site prison— a matter of public record. Judge Pohl reaffirmed that, even though a court security officer has instructions about what topics are to be censored, only the presiding judge has the authority to close (i.e., censor) the courtroom. Furthermore, Judge Pohl noted that the comment that resulted in the censorship “is not a valid basis for the court to have been closed.”
Judge Pohl then attempted to resolve— on the record— the defense’s concern regarding who has access to audio feeds from the courtroom. He explained that there are two audio feeds. One feed never is censored and is transmitted only to the court reporter. The other feed – the feed in question during Monday’s prolonged censorship – is buffered with a 40-second delay, which allows the aforementioned court security officer time to sever the feed before it reaches the gallery or remote-viewing locations. “The purpose of the 40-second delay,” in Judge Pohl’s words is, “to prevent spillage of classified information.”
It Was Not A 40-Second Delay
James Harrington, Learned Counsel for co-defendant Ramzi Binalshibh, quickly brought to the commission’s attention that Monday’s actual events seem inconsistent with characterizing the censorship episode as an accidental 40-second delay glitch. “[T]here was a little bit of a delay; it wasn’t a 40-second delay,” Mr. Harrington said. “That is not what happened. The light went off in a time much shorter than 40 seconds.”
Judge Pohl stopped Mr. Harrington’s line of argument at that point, out of concern that it risked “sliding into an area we shouldn’t talk [about] in open court.” Counsel for both parties and Judge Pohl had discussed these issues in a closed session Monday afternoon. Elsewhere, Judge Pohl identified the crux of this and similar debates about the process of the hearings and access to information: “we are getting into a line between what is public and what is security.”
Judge Pohl: The United States Must Comply With Its Own Regulation
While it may seem that Judge Pohl shifted quickly from preserving access to information during the hearings, to cautioning defense counsel about divulging information to which the public wants access, the issue resurfaced later during Tuesday’s proceedings. Judge Pohl ultimately held in favor of some procedural transparency, granting the defense’s motion to release redacted versions of classified pleadings.
James Connell, Learned Counsel for co-defendant Ammar al-Baluchi, illustrated for the commission that many documents in the case have remained entirely unavailable to the public for more than three months, some approaching half a year, despite the Government’s practice of releasing sanitized versions with sensitive information redacted.
Sterling Thomas, an Air Force Lieutenant Colonel and detailed defense counsel to al-Baluchi, further argued for the availability of documents, noting that the very slogan appearing on the Military Commission’s website would seem to promote intrinsic notions underlying the pursuit of justice:
“Your Honor, if you were to click on the Office of Military Commission website, you’re immediately greeted with the banner of fairness, transparency, and justice. And if one were a cynic, Your Honor, one might say that these words are merely window dressing. But yet, Your Honor, I think that it’s important to note that those words are there and that obviously the government understands that that’s an important principle…. But, Your Honor, the frustration continues to build as a result of delays in the – in having openness, in having transparence. And I think it was evident as recently as yesterday when our client made some statements about his frustration with the lack of what he sees as openness and transparence. And, Your Honor, I think that equally you could say the American people are also frustrated by a lack of openness and transparence. With those things in mind, Your Honor, I just want to emphasize that we think it’s critically important that whenever possible the pleadings, orders by the commission that are not classified, that these things be made available to the public so that they can inform themselves and educate themselves about this trial.
Against the points made by the defense counselors, Navy Lieutenant Kiersten Korczynski, assistant trial counsel for the United States, argued little more than that the defense is required by the Military Commission Rules to file documents, that are not certainly unclassified, directly to the judge rather than through the ordinary docketing process.
The relevant regulation (RTMC 17-1(c)(1)) is designed to preserve the judge’s control over the release of trial-related information. If the United States wants to prevent the defense’s documents from being released, the prosecution must petition the judge to do so. Likewise, if the defense wants to compel the release of their documents, it must petition the judge to do so.
Finding that the Military Commission Rules already provide the remedy that, if followed, would preclude the United States from indefinitely detaining unclassified information, Judge Pohl held essentially that the United States must comply with its own regulation.
The hearing adjourned until Wednesday, to determine if the defense will be prepared on Thursday to argue a number of outstanding motions to compel the production of witnesses. The United States has refused to produce many defense witnesses for the case, arguing that the defense has not explained how the witnesses are relevant or necessary to the issues.
Adam Kirchner is a dual-degree student at Seton Hall University School of Law and the Whitehead School of Diplomacy and International Relations. He is a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law