In August of 2013 I had the opportunity to travel to Guantanamo Bay to represent Seton Hall Law’s Center for Policy and Research as an NGO observer at the 9/11 trials. In particular, I was able to watch one of many pretrial hearings in the case of the United States v. Mohammed, in which Khalid Sheikh Mohammed (KSM), Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali (AKA al-Baluchi), and Mustafa Ahmed Adam al Hawsawi are named as defendants. The five detainees are accused of plotting the 9/11 attacks that lead to the deaths of nearly 3,000 people in New York, Virginia, and Pennsylvania.
We received an e-mail a few days before takeoff inviting us to a BBQ thrown by the defense teams on Sunday night, so once we unpacked and got settled, we loaded into our vans and headed to their houses across the base. The defense teams obviously spend most of their time at Guantanamo Bay preparing for the hearings or talking to the media, so it was nice that they allowed us to meet them and pick their brains for a little while. I know that not all Americans feel this way, but there is a fairly large contingency in our country that does not agree with what they do, and I can understand why. After all, these are men accused of truly heinous crimes. But it is important to remember that the defense attorneys were hired and appointed by the government to uphold the law and make sure the prosecution is doing its job. It is difficult to accept sometimes, but we have bought into a justice system where even the most notorious criminals are entitled to a vigorous defense. That’s what these men and women are here to ensure.
The hearings resumed at 9:00AM on Monday. Due to the nature and location of the case, hearings are normally held at Guantanamo Bay for one week each month. Getting into the courthouse is a lot like going through airport security. No cell phones or electronics of any kind are allowed and we had to go through multiple security checkpoints every day to get to the gallery. Everyone not directly participating in the trial sits in a separate room in the back of the building. We were able to see the courtroom, but we were separated by soundproof glass. Video and audio feeds were pumped into the gallery on a 40-second delay. A CIA official was stationed right next to Judge Pohl, hovering over a button that cuts the feeds to the gallery in case either side discusses classified information. Luckily, the feed was never cut during my trip, although we were ushered out of the courtroom on Monday afternoon so the court could hold a closed session regarding the medical status of Bin ‘Attash.
This was a bit concerning to me. The government has claimed from the beginning that these military commissions were designed to promote justice and transparency. They fly NGOs and the media to Guantanamo Bay for every hearing so the world can see what is happening at the commissions. However, nobody even knew that the CIA had the ability to cut feeds until it had already happened. Even Judge Pohl was taken aback the first time the feeds were cut. I understand that we are dealing with a massive quantity of classified information. I have no doubt that some of it pertains to American national security. But if transparency is the goal, one would think that the man presiding over the hearings would have some idea that a third party has the ability to censor his courtroom. It did not take me long to realize just how lacking these military commissions are in transparency.
To be perfectly honest, most of the hearing was fairly dull, as most cases are in the pretrial phase. There was a lot of arguing by both sides in regard to the order in which motions would be heard. A majority of the hearings would be typical in just about any court. However, some of the issues fairly unique to the commissions. There was recently a change in the numbering system used to classify motions and neither side seemed to fully grasp the logic behind the new system. Remember, we are not talking about lawyers fresh out of law school without any experience. Since the government is seeking the death penalty, it is required to provide the detainees with lawyers experienced in death penalty cases, also known as “learned counsel.” Basically, the people charged with organizing arguably the most important trial in U.S. history are having trouble coming up with a motion classification system that even the most experienced attorneys can understand. As you can imagine, it was even harder for those of us not involved in the case to keep track of what was happening.
Another problem that came up often involved detainee attendance at the hearings. The prosecution and defense originally agreed that the detainees only have to be present in the courtroom on the first day of each week of hearings. On any other day, they may voluntarily waive their rights to appear. This might not sound all that important, except for the fact that the detainees have a right to participate in their defense. If they decide not to or are unable to appear and do not voluntarily waive those rights, it is unclear what the next step is even though the only two options are to suspend the hearing or continue without the detainee. That came into play early in the hearing as al Hawsawi and Bin ‘Attash both have medical conditions that allegedly make it difficult or impossible to sit through 8+ hours of hearings each day. The issue became whether or not it is possible for a detainee to voluntarily waive his right to appear when a medical condition makes it impossible for him to appear in the first place. It would seem logical that a detainee in that position cannot voluntarily waive that right, but the hearings continued anyway.
It is important to remember how much money the government spends on these commissions. It costs a mind boggling amount of money to prosecute a normal death penalty case, and even more so when the government is footing the bill for civilian defense counsel, not to mention travel expenses to transport everyone to Cuba for every hearing. It is not likely that they are going to suspend an entire week of hearings if it is not due to a life-or-death situation. This also presents another problem with the prosecution’s strategy in this case, which is to consolidate the five separate cases into one trial. The absence of one detainee would not have affected the status of the other four if the government had elected to try them separately. Instead, the court spent valuable time litigating something that should have been figured out months ago.
Once the court got past that issue of absent detainees, it addressed a number of motions that involved a few of the issues that have been plaguing the commissions since they began. namely the piercing of the attorney/client privilege and over-classification of evidence. One of the more controversial motions involved Memoranda of Understanding (MoU). This is going to get a little complicated, so bear with me while I explain. Judge Pohl issued an order a few months back at the request of the prosecution instructing the defense teams not to share any discovered classified evidence with their clients. This in and of itself presents a problem because, as I mentioned earlier, the detainees are entitled to participate in their own defense.
Again, I understand the need for some level of secrecy. I understand that the government cannot hand over every piece of classified information to accused terrorists. The problem is, the court order will not even allow the detainees to view transcripts of their own interrogations. This means that they cannot point out any errors made by interrogators or explain why they answered a certain way. There have also been allegations that the detainees may have given statements under duress after torture sessions, which makes this even more problematic. This issue will undoubtedly come up again during the appeals process if the detainees are convicted and sentenced to death.
The MoU is a document that the court ordered each defense team to sign. By signing, the defense teams would acknowledge that they understand the previous order and will abide by its stipulations. The last time I checked, and as learned counsel for Bin ‘Attash Cheryl Bormann pointed out, the defense teams would have already been bound by the original court order regardless of the MoU. In essence, the court is asking the defense to sign a redundant order. Ms. Bormann also pointed out that there are ethical problems surrounding the MoU. Most importantly, she wondered if she would personally be denying her client his right to participate in his defense by agreeing not show him the evidence against him.
Four out of the five defense teams have refused to sign the MoU until their questions are answered and the language in the document is clarified. The best part is that it does not seem to matter whether or not they sign the MoU’s. James Connell, learned counsel for Al-Baluchi, is the only lead attorney to sign the document. The prosecution made it sound as if the MoU was some magical document that would open the floodgates to a great deal of classified evidence. However, since Connell signed the MoU, he has received less than 500 words (not pages, but words) of classified evidence from the government. Keep in mind that even without all the withheld classified evidence, there are already thousands upon thousands of pages worth of documents pertaining to this case. 500 words is literally a drop in the ocean.
The problems did not stop there. The court addressed another motion pertaining to privileged communications between the attorneys and detainees. Apparently there have been issues with guards seizing what should have been privileged communications from detainees’ cells during meeting with their attorneys in other locations. There seems to be a disconnect between what the court considers allowable communications and what the guard force at Camp 7 considers contraband. Again, this goes back to the right detainees have to participate in their own defenses. It also raises concerns about the attorney/client privilege at Guantanamo Bay. This fundamental principal of our justice system has already been called into question after a well-documented incident where listening devices were discovered in meeting rooms used by attorneys and their clients. The CIA denied accusations that they were monitoring the meetings but a feeling of paranoia is still evident among the defense counsel.
It seems as though the problem extends to almost all methods of communication between the defense counsel and the detainees. Most of the arguments had to do with different types of media that attorneys try to share with their clients. For example, as media outlets continue to cover the commissions, it is likely that a publication such as The New York Times could write an article containing information relevant to the case. As KSM’s learned counsel David Nevin explained, this could spark a memory or give the detainee a chance to clarify something that could potentially change the outcome of the case, or more likely the severity of the sentence. It would be classified as attorney/client communication because the attorney could write notes or circle certain passages of interest for the detainee to review. As Nevin pointed out, this type of communication would be allowed under normal circumstances. After all, the attorneys are probably not going to provide their clients with reading material for entertainment value. However, under current rules, the guard force at Camp 7 has free reign to read and confiscate these materials.
Like the previous arguments, I can see the government’s side here. There is a need for security in the detention camps. Nobody is asking the guard force to stop searches altogether. I do not think anyone would argue that it is perfectly acceptable to search for contraband. What is unacceptable is blatantly breaching the attorney/client privilege and seizing material relevant to the case.
Ms. Bormann brought up another good point in relation to this problem. In order for this to be considered a “fair” commission, the defense attorneys must be able to carry out their jobs efficiently and effectively. That cannot happen without some level of trust between the attorneys and detainees. The detainees will simply wait until the trial is set to take place and then fire their counsel, slowing down this process even more. The question is, how do we expect the detainees to put any trust into lawyers given present circumstances? First off, the detainees are already going to immediately question any attorneys appointed by the government to represent them. Second, the detainees are fully aware of the listening devices that were discovered earlier this year. Now the government is confiscating their communications with the attorneys. Guantanamo Bay does not exactly promote the best climate for building trust.
Plenty of people would ask why the government is giving these rights to suspected terrorists in the first place. Again, my answer would be that this is our system. We give these same rights to the most heinous domestic murderers and sex offenders because that is what our Constitution guarantees. The government cannot simply throw out the rules when it is convenient. Although the government would clearly disagree, it does not appear that following the rules would be detrimental to the case. The government is not necessarily covering up a lack of evidence; it is covering up evidence that would be embarrassing if released to the public. And it is only teeing up the defense for appeals if and when the detainees in this case are convicted. We should be demanding more transparency and more Constitutional observance if speedy justice is the goal.
The last major issue to arise during my time at Guantanamo Bay revolved around continuing IT problems experienced by the defense team. Strangely enough, the prosecution does not seem to be experiencing any of the same issues that the defense is experiencing even though their systems are on the same network. Problems for the defense include disappearing e-mails and files and a complete inability to do work on the case on government computers. Nobody seems to be able to explain to them where their files went. There seem to be whispers that the government is intercepting e-mails and seizing files, but any evidence of that would be controlled by the government. Each defense team testified that it was taking anywhere between two and ten times longer to complete motions than it would without the IT issues. It is nearly impossible to deal with a case this size with these types of delays, especially when the prosecution has fully-functional IT network at its disposal.
It has gotten to the point where the defense teams have been issued orders not to use their government computers to save any work-related files. They also cannot use government e-mail addresses, issued specifically for use in representing their clients, for privileged communications. To give you an idea of what they are working with, here is an explanation of how they collaborate on motions: The attorney working on the motion saves it to an external hard drive. He then gives it to one of his paralegals, who has to drive to a Starbucks or hotel lobby with a Wi-Fi connection since the attorneys cannot use their government-issued computers or a government internet connection for this. The paralegal then has to upload the information from the external hard drive to a personal computer. From there, it is e-mailed to the recipient’s home e-mail address. Once that is complete, the attorney who drafted the motion e-mails the recipient and tells them to check their home e-mail account. It seems like we should have these problems solved by 2013. Instead, the defense has to face yet another hurdle in order to do the job assigned to them by the U.S. government. This is a problem that would cripple any team of lawyers in any case, let alone a case this complicated.
I would like to reiterate that the prosecution is not experiencing these problems. They are able to work at a normal clip while the defense is bogged down by this additional burden. But not to worry, the government is taking care of it. They are working on getting the defense team a completely separate network completely untouchable by the government (supposedly). It will only take a minimum of 110 days from the time the government decides on one of three potential plans, finds the staff and budget to do it, and hires supports staff.
I would like to finish up by addressing an issue of my own that has been on my mind since the beginning of the hearings. I had heard the criticisms of this military commission in the news and I had read some of the transcripts. I knew that I was walking into something difficult to follow closely. But the sheer amount of delays, reference to prior and future motions that NGOs and the press cannot have immediate access to, closed hearings, and general over classification in regard to this case make it nearly impossible to follow the trial in a detailed fashion. I had my eyes glued to the proceedings for four days and I still did not have a grasp on something as simple as the numbering system used for the motions. Apparently the court does not either since they spent about a half hour arguing over how to properly name and file motions, joinders, and supplements. You would think that an agency charged with trying one of the most important trials in our country’s history would have the competence to come up with a simple, understandable numbering system. You would also be wrong.
In addition to that, I cannot tell you how many times the judge had to stopped an attorney mid-sentence to take a 15-minute break that turns into a 30-minute break because of some unforeseen problem. The court had to stop the proceedings twice on the second afternoon so two detainees who had voluntarily waived their right to be present at the hearing could be brought in during an oral argument instead of during the lunch break as the judge had planned.
So what is my point? My point is that accessibility is more important now than it has ever been. This is exactly why we need the media and NGOs at Guantanamo Bay. Sure, transcripts are published on the OMC’s website, but transcripts cannot paint a full picture of what is happening here. They do not describe the frustration on Judge Pohl’s face as he deals with yet another unforeseen delay in the hearing. They do not show the interactions between the detainees and the defense teams. And they are certainly no substitute for the personal meetings we have been able to have with both the defense and the prosecution. So we need to be here. This is not some charade so the government can say they gave the public access. We really do have access. For as much as we complain about government secrecy, this is one of the few chances we have to peek behind the curtain and see what is really going on down here. How many times do you think the government is going to charter flights and invite members of the public to a military base just to criticize what they are doing? The point is that we have to keep taking advantage. We have to keep coming down here until there’s a resolution. This opportunity is simply too important to pass up.
I will leave you with perhaps my new favorite quote, straight from Judge Pohl. He said this in response to a statement by General Martins. He said, “I don’t find that to be logical, but logic is not a benchmark of this process.”
Chris Whitten, Research Fellow
Center for Policy and Research