“It’s a Mixture of Kafka, Machiavelli, Catch 22, and George Orwell’s 1984. It just depends on the day” – Major Jason Wright Defense Counsel for K.S.M.
Last week, I had the opportunity to travel to Guantanamo from October 22nd through 25th to observe the Military Commission proceedings for United States v. Khalid Sheikh Mohammed et. al. Perhaps the most appropriate word to describe my observations is frustration. Regularly during the week, the observable liberties afforded to each of the accused, including prayer time in the courtroom, freedom of attire, and remaining unshackled were only contradicted by the accusations of intentional sleep deprivation, confiscated attorney-client privileged material, and force-feeding. Furthermore, the interpretation of the Military Commissions’ rules and their applications were consistently debated, particularly with regards to how they should be implemented when other laws, such as international laws, hold inconsistent stances.
Along with discrepancies in the applicable law, I observed Defense Counsel being forced to file motion after motion, requesting that the Commission intervene and compel the Prosecution to produce needed discovery. The Prosecution chose to argue that the accused’s own observations, financial records of the 9/11 attacks, and even reports on the alleged plotters themselves are either classified or immaterial to this case. Furthermore, the Prosecution regularly allowed discovery requests to go unanswered for lengths of time, sometimes as long as sixth months. Such inattentiveness would not be tolerated in a Federal Court system, and it is frustrating to attempt to understand why such delinquency is permitted in this Military Commission. Below is a snapshot of both the issues and legal arguments that were asserted by the parties to this case. They evidence not only the shortcomings of the Military Commission Proceedings in trying this case, but also the concerted effort by the Prosecution to convict the accused without releasing information regarding torture and rendition that may cause embarrassment to the United States Government.
Breaches of Attorney-Client Privilege and Alleged Incidences of Prisoner Abuse at Guantanamo Bay
On the first day of the proceedings, the parties discussed the issue of having attorney-client privileged material removed from the detainees’ cells by Joint Task Force Guards. While it is common procedure at Guantanamo Bay for guards to search the cells of each High Value Detainee (HVD) for physical contraband, these searches have lead to the unlawful confiscation of privileged materials belonging to Defense Counsels’ clients. In one example, Cheryl Bormann, attorney for Mr. bin Attash, zealously advocated that her client over the past month of September had not tried to contact her. She later realized that Mr. bin Attash feared that any document he received would surely be confiscated, translated, and read by the JTF Guards. The alleged actions by the JTF Staff violates an Order from approximately a month and a half ago that mandated JTF to comply with the official stamping procedures for incoming mail and documents for detainees. This screening procedure for contraband recognizes that documents consisting of attorney-client privileged material are to not to be read by JTF Staff. As Ms. Bormann argued on behalf of her client, JTF has acted inconsistently in the practice of searching each HVD’s cell and labeling materials that belongs to each HVD. Particularly, the JTF has completely ignored stamps that denote attorney-client privileged material, including books that contain legal writing in her client’s native language. Ms. Bormann noted the fact that JTF staff changes regularly, with new, inexperienced guards taking on the job of searching cells. This also leads to different enforcement policies among the guards’ superiors. Ms. Bormann expressed that she is failing in her duty to preserve the attorney-client relationship with Mr. bin Attash and, even now, the relationship with her client is deteriorating.
Commander Ruiz, attorney for Mr. Hawsawi, expressed similar concerns, noting that accordion files of legal material, clearly stamped as attorney-client privileged, had been removed from the accused’s cell while he attended a hearing. The Commander called Commander Massuco of the JTF at Guantanamo to bring to light the reason for the confiscation of his client’s materials. However, in one of the many displays of the debilitating processes of the Military Commission hearings, Commander Ruiz became frustrated with Commander Massucco’s speculation and indirect manner for answering questions. He noted to the Commission that Commander Massucco was called to the stand, because Commander Ruiz’s original motion to call the guards who searched Mr. Hawsawi’s cell had been denied. Mr. Massucco, the only witness that was permitted to testify as to this matter, had no ability to state if the documents admitted into evidence was, in fact, the document that was seized from the accused’s cell. Even more, each of the Defense Counsel expressed their concern of the confiscation of their client’s laptops, which contained privileged material in preparation for their trials. The Prosecution failed to provide any reason as to why or who exactly confiscated the laptops, only noting that they were taken in conjunction with an “ongoing investigation.”
Beyond the issue of the confiscation of attorney-client privileged materials, Mr. bin Attash’s attorney, Cheryl Bormann raised the issue of her client’s exposure to constant noises and vibrations in his cell. On June 21st, Judge Pohl had Ordered for JTF to assure that the detainee was not exposed such noise. However, the sounds allegedly persisted through October 15. Defense Counsel indicated that her client could not sleep due to the noise, rendering him exhausted and difficult to participate in the courtroom proceedings. In response to Defense Counsel’s zealous advocacy for an emergency motion and Order for the noises to stop, the Government simply responded that such noises were not occurring, and there was no evidence of guards intentionally inflicting upon the detainees such disturbances. I expected Judge Pohl to inquire into said, inquiry. However, Judge Pohl asked Defense Counsel how he would be expected to enforce such an Order and prevent any potential mistreatment of the of the detainees via exposure to loud noises. Defense Counsel requested that the guard force be brought in for questioning, however the Prosecution immediately objected to this request. If such allegations of abuse by the guards are substantiated, the detainees’ liberties, including freedom of attire, freedom of discussion among fellow detainees, and lack of restraints, could be viewed as merely efforts to disseminate to the public that on the surface the process is fair. On the other hand, the alleged torture these men suffered prior to their detainment in Guantanamo Bay, Cuba raises the question of whether such noises are fictional and creations of each client’s posttraumatic stress disorder. Nevertheless, this is not the first complaint of poor detainee treatment that was raised during these proceedings, and it certainly raises concerns as to their treatment once they step outside the gallery’s line of sight.
The Overbroad Protective Order and the Issue of Classification
In perhaps the most pressing issue surrounding the Guantanamo commissions, Defense Counsel alleged that crucial information to this case has been unjustly restricted by the Government’s rules of classification. Judge Pohl had issued a Protective Order, which stated that all information that was classified would not be admissible as evidence in the Commission’s proceedings. However, the Protective Order also stated that any impressions, experiences, and observations of a person as they relate to classified information are also prevented from being admitted as evidence. According to Defense Counsel, this latter provision prevents any of the accused from writing of their experiences while in U.S. Custody prior to arriving in Guantanamo Bay, Cuba. In what I felt was the strongest and most articulate argument of the proceedings, Mr. Connell, Defense Counsel for Mr. Al Baluchi, revisited the issue of the Protective Order and its ability to over-exclude evidence from discovery. In Mr. Connell’s hand he held a sealed envelope that contained a letter written by his client, Mr. Al Baluchi. The letter, which Mr. Connell had not read, contained the details of Mr. Al Baluchi’s experience while being held by the United State’s government prior to his arrival in Guantanamo Bay, Cuba. Using the letter and the United States’ authority for classification, Mr. Connell argued that the observations, experiences and impressions of his client, which are expressed in the letter, are not considered classified. Mr. Connell also argued that the passing of the letter to a third party organization would also be permissible. Furthermore, Mr. Connell, who does have proper clearance to view classified documents, asserted that just because he has come to hold the letter, does not render Mr. Al Baluchi’s letter and its contents classified. Mr. Connell argued that until he adds, deletes, confirms its content, denies its accuracy, or makes any attribution to Mr. Al Baluchi’s writing, the letter and its contents will remain declassified. Thus, Mr. Connell and Defense Counsel argued once again for the removal of section 2(g)(5) of the Protective Order, which presumptively classifies the impressions, observations and experiences of detainees as they relate to classified material.
In Mr. Connell’s second point, he addressed the application of the Convention Against Torture Act to United States domestic law. Under the C.A.T., documents that are classified for the purposes of preventing government embarrassment and for concealing evidence of war crimes, including torture, may not be considered classified. While the Prosecution asserts that the United States Courts lack jurisdiction to decide issues of international law, particularly issues pertaining to the C.A.T., Defense Counsel argued otherwise, citing to the United State Supreme Court, which has held that principles of international law that are so obligatory are viewed as to have ripened into United States common law. In other words, the C.A.T. is considered a form of customary international law by the United States and therefore, must be followed. He also discussed the Torture Victim’s Protection Act, in which individuals who have been tortured are free to bring claims in Federal Court. However, as Mr. Connell indicated, the Protective Order renders this form of redress for Mr. Al Baluchi completely unhelpful. Reason being, any observations Mr. Al Baluchi made during the time he was detained by the United States prior his arrival in Guantanamo Bay, Cuba are considered classified.
Relating the aforementioned law to the facts of the case, Mr. Connell had requested that two physicians and their medical records be produced. Both physicians had examined Mr. Al Baluchi and assessed his condition. However, the two witnesses were declared classified, and their medical records heavily redacted when turned over to Defense Counsel. It was evident from the first physician’s readable portions of the redacted medical records that Mr. Al Baluchi had suffered a debilitating head injury during his detention by the United States Government prior to his arrival at Guantanamo Bay. However, because such information contains the observations, expressions, and impressions of Mr. Al Baluchi, relating to classified information (his alleged rendition and torture) the information cannot be disseminated or admitted into evidence. As Mr. Connell illustrated, it is the Government that makes the determination of what shall be considered classified or non-classified, thus, creating an issue of the fox guarding the hen house. For these reasons, Mr. Connell and Defense Cousinly motioned for the Court to strike from the Protective Order section 2(g)(5), which prohibits from admitting into evidence the observations, impressions, and experiences of an individual as they relate to classified information.
I found the rebuttal arguments by the Prosecution to be quite shocking. When directly asked by Judge Pohl if the personal knowledge detainees possess of classified information is in itself classified, Mr. Trivett of the Prosecution answered yes. In his reasoning, Mr. Trivett stated that that classified information exists under the control of the United States Government. Currently, the detainees are under the control of the United States. Therefore, the information they possess, including the sources and methods of “questioning” detainees by Government Officials, is within the Government’s control, and classified.
In regard to the argument that the Protective Order violates the C.A.T. the Prosecution asserted that there is no enforcement by legislature that gives executive authority to the C.A.T. Thus, the C.A.T. is not enforceable despite the fact that it has been ratified by the United States. In addition, contrary to Supreme Court decisions as fellow N.G.O.’s noted, the Prosecution asserted that the Supreme Court of the United States does not have the power to hold that an international law or treaty is binding upon the United States Government. As the Prosecution stated, the Military Commission cannot vindicate a right found in international law that is not recognized by the United States. Further, the Prosecution alleged that the United States laws and the actions of its government agencies are already in full compliance with the C.A.T. In fact, the Prosecution went as far as to assert that there is a “robust” form of redress for Detainees that allows them to complain of any treatment they experienced while being detained. However, when later asked as to what such “robust” forms of redress were, the Prosecutions stated that they were not at liberty to say.
Deficient Discovery Requests by the Prosecution
During the remaining proceedings, Defense Counsel brought another Motion to Compel. Mr. Connell had requested months back that the C.I.A.’s reports of the financial structure of al Qaeda be produced. These financial reports are essential, as Mr. Connell argued, to the charges brought against Mr. Al Baluchi, which involve financing the 9/11 attacks. However, the Government characteristically refused to produce three of these reports, claiming that they are not material to the preparation of Mr. Al Baluchi’s case. Their reasoning: Mr. Al Baluchi is accused of transferring funds to the hijackers of 9/11, but these requested reports differ, in that they illustrate the financial structure of al Qaeda. This was yet another example of the Prosecution’s efforts to frustrate the transparency of the pre-trial proceedings and limit the evidence produced to Defense Counsel as they saw fit.
Likewise, Ms. Bormann expressed this same sentiment as she noted that Defense Counsel is still waiting on the production of thousands of pages of F.B.I. 302’s. In some cases, the discovery has taken as long as six months to produce on the Prosecution’s end. Evidencing the government’s most incredible restrictions on discovery requests, an article where the title focused on the plot and plotters of 9/11 was considered not to be relevant to the case, and was therefore not produced by the Prosecution. On more than one occasion, Defense Counsel requested that Judge Pohl engage in the discovery process and review the documents as to whether or not they are relevant. Reason being, as Defense Counsel alleged, the Prosecution is stating that documents are irrelevant without actually having produced or even read them. Even more, the Prosecution is making the encroaching decisions of determine what is and is not relevant for arguing a case for each of the accused.
General Martins, the Chief Prosecutor in this case, later argued what I felt was the most ironic motion of the proceedings during my time at Guantanamo. He expressed in his motion that the Prosecution is interested in moving this case forward. He proposed to the Military Commission a tentative schedule for pre-trial motions and evidentiary issues that will arise at a later date.
Mr. Connell answer General Martins’ motion with a flowchart of data, evidencing the status of the case, and how it starkly contrasts from the expectations that General Martins. Only with regards to Mr. Al Baluchi, Mr. Connell noted that: 67 requests for discovery from the Prosecution are still pending with no answer having been provided; there are two instances where the Prosecution has agreed to produce the requested information and/or documents, yet has failed to actually produce said information; there are 21 instances where the Prosecution has only practically produced documents requested by Defense Counsel; there are two refusals by the Prosecution to produce requested documents; there are thirteen other motions to compel requested documents that are pending; and finally, there are only seventeen discovery requests have been fully met by the Prosecution.
It is plausible to suggest that the Commission’s pre-trial hearings this week shifted from arguments regarding the accused to debates as to what shall and shall not remain hidden by the government. At every turn, the government has attempted to keep every piece of evidence relating to the torture of the accused from being admitted into evidence, even expressing reluctance at the photographing of Mr. Mohammed’s wrists and ankles. However, the C.I.A. rendition program is a material element to proving and/or challenging the validity of the accusations brought against these five detainees. Without this information, the lack of transparency at Guantanamo will force Defense Counsel to continue representing their clients with their arms tied behind their backs. Recognizing the need for this information, on October 22, 2013, Defense Counsel composed and signed a letter addressed to President Obama. Defense Counsel requested that the President declassify the RDI program in order to facilitate a level of truth and justice that, based upon the case’s current status, is unattainable. In the closing remarks of Defense Counsel, “You [Mr. President] properly cautioned that, ‘in our system of checks and balances, someone must always watch over the watchers – especially when it comes to sensitive administration – information.’ No one is watching here, however and no one is conducting the necessary checks and balances.” One can only hope that the President will grant Defense Counsels’ request and allow them to finally provide a just Defense for their clients. Otherwise, the American judicial system and those who participated in what Defense Counsel has referred to as the most important criminal trial in American history will be chastised for its perpetuation of slanted Military Commission proceedings.
Seton Hall University School of law