Bradley Manning’s Top Charge to Remain

Earlier today, a military court judge dismissed a motion by Bradley Manning’s defense team to drop “aiding the enemy” from the list of charges against him.  Manning, who is now definitely facing life in military prison without the possibility of parole, is the U.S. Army intelligence analyst accused of leaking the information that eventually ended up on Wikileaks.  He was arrested in 2010 in Iraq and charged with 22 separate counts related to the release of over 700,000 documents to Wikileaks.  Though he plead guilty to 10 of the 22 counts back in February, Manning’s trial did not start until early last month.

The decision was left up to Colonel Denise Lind, the judge presiding over the case at Fort Meade in Maryland.  She rejected the motion based on the “accused’s training and experience and preparation,” as well as Manning’s knowledge that terrorist organizations would have access to the leaked documents on the Internet.  The defense’s motion claimed that the government had failed to show that Manning possessed “actual knowledge” that he was providing information to the enemy, and could only show that he unintentionally or accidentally gave terrorist organizations access to the documents.

I think it’s worth noting that there’s a pretty sharp difference between “knowingly” and “intentionally” aiding the enemy, a difference that the defense seems to have overlooked.  I agree that Manning’s intent probably wasn’t to provide al-Qaeda with sensitive government documents. The way he went about releasing the information wouldn’t make any sense if that scenario were true.  But at the end of the day, his intent isn’t what matters if you read Article 104, the charge which Manning’s defense appealed:

Any person who—
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;
shall suffer death or such other punishment as a court-martial or military commission may direct. This section does not apply to a military commission established under chapter 47A of this title.

What matters in regard to this charge is that Manning knowingly released classified government documents that he knew could indirectly reach terrorist organizations.  You can argue all day about whether or not Manning actually deserves to be charged under Section 104.  But if we’re going by the book, Judge Lind made the right call.

Putting aside the technical aspects of the case, journalists are all in a tizzy about what this means for investigative journalism.  Many are claiming that the Obama administration is trying to make an example of Manning by bringing the hammer down on a highly visible whistleblower.  They are concerned that the threat of life in prison without the possibility of parole will prevent others like Manning to come forward when they believe the government is doing something unethical or shady.  These are valid concerns.  There is a reason why freedom of the press is a cornerstone of our democracy.  If we aren’t aware of what our representatives are doing, how can we vote them out of office if we disagree with their policies?

Still, I think the government has a legitimate concern as well.  Sure, we over-classify and give security clearances to far too many people, but that doesn’t mean it should be a free-for-all.  There is plenty of classified information that I’m sure I wouldn’t want to go public, and the government has a right to protect that information in the name of national security..  But the solution isn’t to throw Manning into prison for the rest of his life; it’s to fix the system.  Because of the aforementioned over-classification, the government has created a climate in which someone almost HAS to leak classified information to get to the bottom of any real stories.  Since we seemingly classify everything nowadays, what should be public and what should be classified gets lumped together and we see exactly what happened in Manning’s case.  And when we have an estimated 4 million people with top-secret security clearance, let’s not act too surprised when that happens.

Did Bradley Manning do something stupid?  I think he did.  Did terrorist organizations gain access to classified government documents because of his actions?  Undoubtedly.  But the government needs to realize that the guilt doesn’t lie solely with Manning.  If we’re really worried about protecting classified information, we need to start being selective in regard to what we classify and who we give clearance to.

Chris Whitten, Research Fellow
Center for Policy and Research

Snowden Makes Request for Asylum in Ecuador

Just weeks after leaking the story that the NSA has been collecting phone records and the internet activity of American citizens, it appears that Edward Snowden will not be seeking permanent asylum in China.  Yesterday, multiple news agencies reported that Snowden was on his way to Moscow, where he will apparently wait for Ecuador to grant him asylum.  Earlier reports stated that he might be fleeing to Cuba, but it looks like he never boarded the flight that was supposed to take him there.

That’s right, the man who went on the record saying that he was concerned with the direction our government was headed in regard to freedom of speech and privacy has turned to China and Russia for protection.  I guess he didn’t hear about the Chinese government upping its own surveillance program in Tibet, or that Russian President Vladimir Putin had an entire band thrown in prison for voicing their opinions on Putin’s Russia, or any number of human rights violations both countries have been accused of committing in the recent past.  And he was probably too busy to notice that Ecuador has followed in Venezuela’s footsteps as far as its policy towards America.

Snowden probably fled China because of an extradition treaty we have with them, figuring that sooner or later he would be turned over to the American government and forced to answer for his actions.  It was probably a smart move in this regard since we don’t have an extradition treaty with Russia.  On top of that, our well-documented, strained relations with Putin’s administration make it even less likely that the Russians would ship him back to the U.S.  So why would he go to Ecuador?  Why not stay in Russia?  After all, the United States accounts for roughly 45% of Ecuador’s trade and they could experience a sharp economic decline if the U.S. decided to retaliate against them for harboring Snowden.

It might have something to do with the fact that the American government has already made a serious push toward convincing Russia to turn him over.  The media reported yesterday that the government had filed to revoke Snowden’s passport, which would presumably strand him in Russia for the immediate future.  And like I said before, Ecuador tends to take Venezuela’s stance on foreign relations with the U.S.  Ecuadorian President Rafael Correa is known for making strong statements against America, holding frequent rallies against U.S. “imperialism.”  So even if President Obama were to threaten economic sanctions, it doesn’t seem likely that Correa would cave.

It’s also worth noting that Snowden has reportedly received assistance from Julian Assange of WikiLeaks fame.  Assange calls Snowden “a hero” and claims that he is healthy and safe in an undisclosed location.  Assange himself has been holed up in the Ecuadorian embassy in London, another valid reason for Snowden to seek asylum in that country.  For one, he knows he has at least one ally with ties to the Ecuadorian government.  Second, the Ecuadorian government has harbored Assange for nearly a year, protecting him from charges similar to those Snowden would face in the U.S.  The precedent set by the Ecuadorian government has to be reassuring for Snowden.

Knowing this, it seems impossible not to question Snowden’s motives at this point.  That’s not to say that he was wrong for bringing this to light.  This story is definitely concerning and it’s provoked quite a range of responses from the public, and I could argue for both sides all day.  Regardless, it seems hypocritical for a self-proclaimed champion of free speech that claims to want to protect the rights of American citizens to turn to two countries known for censorship and a country that regularly voices anti-American sentiments.  I’m sure he has his reasons; we just don’t know what they are yet.  There’s still speculation that he has deals with foreign governments to sell information about our national security.  This seems plausible since he obviously has access to massive amounts of damning reports and other documents.  It could also be as simple as Snowden not wanting to spend the rest of his life behind bars, or worse.  He reportedly pleaded with the Ecuadorian government that he wouldn’t get a fair trial in the U.S.  Either way, it looks like the government’s chances at having a crack at him in a court of law are shrinking at a rapid pace.  Luckily, Snowden hasn’t shied away from the spotlight since he made international headlines.  We might have more answers soon, but for now we’re still playing the waiting game.

Chris Whitten, Research Fellow
Center for Policy and Research

Update: New Information on NSA Surveillance Scandal

Last week I wrote about the breaking story that the NSA has been monitoring phone records after obtaining a court order that allowed them to collect data from Verizon Wireless.  As I noted, feelings on the issue are split.  An editorial from the New York Times claimed that the Obama administration had “lost all credibility on the issue,” and that the government was clearly abusing its power.  The Washington Post took a similar stance, but called for more information on the matter before the public jumped to conclusions.  Over the weekend, more information came to light that might help us paint a better picture of what exactly the NSA’s telephone surveillance program entailed.

Most of the new information about the NSA’s PRISM program came from the whistleblower himself, Edward Snowden, and ex-CIA employee.  Snowden is currently living in Hong Kong to avoid prosecution by the federal government for leaking the story.  He provided The Guardian, the British news agency that first broke the story, with a 12-minute video interview that you can watch here.  In the interview, Snowden claimed to have had the authority to spy on any American citizen, including the President.  He claimed to have leaked the information because of some of the same concerns I voiced last week.  In particular, he said that he did not want to live in a society that secretly monitors its citizens, especially those who have done nothing wrong.

So basically what we have learned is that between the CIA and NSA, the federal government had virtually unlimited power to monitor U.S. citizens, even those in the most powerful positions.  It would appear that the government needed no probable cause of any kind to place surveillance on these people.  I think it’s safe to say that most people’s initial reaction to any instance of government surveillance is outrage.  As I said before, we are a freedom- and privacy-loving people.  But it’s also important to look at all perspectives before jumping to conclusions.

First things first, the government is not in an enviable position.  Charged with protecting over 300 million citizens, agencies like the NSA and CIA have a monumental task in detecting and thwarting terrorist attacks against the United States.  Incidents like 9/11 and the Boston Marathon attacks showed just how susceptible we can be to terrorism without implementing a proactive approach.  Because of this, there seems to be a general consensus that the government must have some type of surveillance and intelligence gathering programs.  The trouble is in deciding just how extensive and intrusive these programs should be.  If the government backs off on its surveillance programs and an attack occurs, the public will be outraged and ask why more wasn’t done to protect them.  On the other hand, in situations like this where the government is perceived as having gone too far, the public is also outraged.  The happy medium, if it exists at all, would be extremely difficult to find.  So if the public is going to be outraged regardless of which stance the government takes, it makes sense to some extent that the government would take a proactive stance that might actually prevent attacks and prevent American deaths.

Second, we have to look at what the government was searching for in the records acquired from Verizon.  So far, it appears that the NSA was not listening to individual phone calls or audio recordings.  From what we know thus far the NSA was simply analyzing data for patterns that might uncover terrorist activity within the U.S., which most would consider a legitimate government concern.  Nothing so far points to the government using the collected data for censorship purposes, or anything unrelated to preventing terrorism for that matter.

Having said that, I am not trying to convince anybody that the government did the right thing.  Determining what the right thing even is in this situation is an extremely difficult task, and there probably isn’t a concrete answer.  There is certainly a chance that the government may abuse its power any time it monitors its citizens, but we still don’t have all the facts to make a determination on whether or not they were.  And, especially at a time when confidence in our government is so low, public outcry against the NSA is understandable and maybe warranted.  Even so, when we look at this situation we have to keep it in perspective.  One of the government’s many jobs, and more specifically the NSA’s job, it to protect the public from terrorist attacks, and so far it looks like that is what the PRISM program is intended to do.  More facts are sure to come to light in the following days and weeks, and we might want to reserve judgment until then.

Chris Whitten, Research Fellow
Center for Policy and Research

GTMO Hunger Strikes Intensify

Over the past few weeks, news reports of Guantanamo detainees engaging in hunger strikes have intensified. As of Saturday, April 6th, US Navy Captain Robert Durand reported that 41 of the 166 detainees (or nearly 25%) had been classified as hunger strikers. Anonymous defense attorneys for GTMO detainees have been cited in several media sources as stating that the actual number of hunger strikers is much higher, with nearly 130 of 166 detainees refusing meals. The current hunger strike is estimated to have begun February 6th, with more detainees joining the original hunger strikers in recent weeks.

To officially be designated as a hunger striker, a detainee must refuse 9 consecutive meals. The health of the detainees refusing meals is closely monitored by GTMO officials, who subject the detainees to daily weigh-ins. If the detainee’s weight drops to a level officials deem dangerously low, the detainee is strapped in a chair and force fed by inserting a thick tube through his nose until he reaches an acceptable weight. At present, GTMO officials report that two detainees have been hospitalized for dehydration, and eleven (about 1/4 of the hunger strikers) are being force fed.

Hunger strikes at GTMO are not a new phenomenon. Several major hunger strikes have occurred at GTMO since the detention facility opened its doors in January, 2002; in 2002, 2003, and 2005-2006.

In a March 15th letter from 51 GTMO defense attorneys to defense secretary Chuck Hagel, the attorneys assert that this hunger strike was precipitated by the widespread searches of detainees’ Qu’rans (considered a form of religious desecration) as well as the search and seizure of detainees’ personal items like family letters, photographs, and legal mail. As detainees, hunger strikes are one of the few tactics these men have to assert their “voice” and attempt to garner attention for their grievances. Understandably, this is a significant concern for US officials, who are well-aware that many of these detainees are willing to die for their cause, and most have lost all hope of ever leaving GTMO after years of indefinite detention (in most cases, without charges against them). At present, the detainees and prison officials are at a stalemate, and it appears that the situation will only continue to worsen until the detainees’ concerns are addressed.

Kelly Ann Taddonio, Research Fellow
Center for Policy and Research

Congress’s Indecision Creates Inefficiency at Detention Facility

In an article released earlier this week, Reuters’ Jane Sutton revealed yet another problem caused by Congress’s failure to close GMTO: it has left the base’s leader in a constant state of indecision.

Naval Base Commander John Nettleton is struggling to make proper decisions at GTMO, because he has no idea how long the detention facility is going to be open.  Sutton says, “Many of the buildings that house and feed the 1,800-member task force are structures built to last five years and show signs of wear after standing for a decade in the salt air and broiling tropical sun.”  Nettleton can’t even decide whether to build a cafeteria or upgrade the barracks for the servicemen stationed at the facility.

This article highlights one of the larger issues with regards to Congress’s failure to close GTMO; it is increasing inefficiency and creating unnecessary obstacles for those charged with leading the facility.  If Nettleton can’t even decide whether to build a cafeteria, how is he going to make decisions regarding the remaining 166 detainees at GTMO?

Whether GTMO remains open or Congress decides to truly take action and shut down the detention facility, our country’s leaders simply need to make up their minds.  GTMO’s leaders have jobs to do, but it is difficult to accomplish anything or make long-term plans when the facility’s future is unknown.

Kelly Ann Taddonio, Research Fellow

Center for Policy & Research

Only the Judge is in Control, Except When He Isn’t

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

 

The Khalid Sheikh Mohammed Hearings Resume: But Who Is The Man Behind The Curtain? And “Who is Controlling These Proceedings?”

2L student Adam Kirchner is currently observing the KSM hearings in Guantanamo.  This article, describing his first day as an observer, was featured in “The Public Record” on January 28th.  

The KSM Guantanamo Bay Military Commission Hearing, United States v. Mohammed, et al., reconvened on Monday for the second session of pre-trial motion hearings. The first session of these hearings, held in October, 2012, devolved into what many referred to as “a circus.” The opening session of this week’s hearings produced several tense moments, including a proverbial “Man Behind the Curtain” incident (as Presiding Judge James Pohl’s control of the proceedings was superseded by some, in his words, “external body”); the hotly contested issue of the United States obstructing defense attorneys’ access to their clients arose;  the debate over whether defense attorneys are truly free to communicate with their clients waged on; and, in their own words, the detainees offered the reasons why they choose to waive their rights to be present during the hearings.

The principal defendant, Khalid Sheikh Mohammed, and his four co-defendants are each accused of eight distinct changes under the Military Commission of 2009, for their roles in the terrorist attacks of 9/11. The charges against the accused are: Conspiracy, Attacking Civilians, Attacking Civilian Objects, Intentionally Causing Serious Bodily Injury, Murder in Violation of the Law of War, Destruction of Property in Violation of the Law of War, Hijacking an Aircraft, and Terrorism.

In a briefing on Sunday, Chief Prosecutor Brigadier General Mark Martins addressed the suggestion that the recent detainee victory in Hamdan II from the D.C. Circuit would nullify the Conspiracy charges in this case as well. Prosecutor Martins stated that he would proceed in this case, assuming that he will be directed to push forward and argue the merits of the Conspiracy charge, despite the decision in Hamdan II. The strategy would make sense in the event the Hamdan II decision is appealed to the Supreme Court.

In the case at hand, the decisions made by the Judge,  Colonel James Pohl, in this phase of the commission  will ultimately affect the evidence that can be discussed, and the procedure of the commision on the merits once all pre-trial motion hearings have been concluded.

The Prosecution alleges that Khalid Sheikh Mohammed was the “architect of the 9/11 concept” in its motion designed to exclude from the trial information that it asserts could compromise the United States’ national security. See Government Motion to Protect Against Disclosure of National Security Information, AE013, page 3. Elaborating on the claim that Mohammed was the “architect of the 9/11 concept,” the Prosecution charges that he conceived of and oversaw the preparation for the 9/11 attacks. Co-defendant Walid bin Attash’s alleged role in the 9/11 attacks was developing the method by which the hijackers smuggled weapons aboard the airplanes, in addition to training the hijackers in hand-to-hand combat. Following co-defendant Ramzi Binalshibh’s denied entry into the United States, his alleged role in the 9/11 attacks was to be the liaison between the chief hijackers and Khalid Sheikh Mohammed. Co-defendant Ammar al-Baluchi’s alleged role in the 9/11 attacks included financial coordination of the hijackers, in addition to procuring a cockpit operations video and flight simulator for the hijackers’ training. Co-defendant Mustafa al-Hawsawi’s alleged role in the 9/11 attacks was financial coordination of the hijackers. Al-Hawsawi’s actions allegedly included draining the hijackers’ bank accounts on the day of the attacks.

Who is the Man Behind the Curtain?

Static filled the gallery’s speakers, and the large video screens which displayed the 40-second-delayed proceedings went blank— to prevent lip-reading— while a red light flashed at the right-hand side of Judge Pohl’s desk. Observation of the hearing was shut down.

As soon as the audio and visual feeds resumed and the flashing light shut off, Judge Pohl expressed two immediate question/concerns: Who ordered the audio/visual feeds to be censored, because it was not on his authority and why were the feeds censored when Learned Counsel for Khalid Sheikh Mohammed, David Nevin, had been discussing theunclassified portion of the Joint Defense Motion to Preserve Evidence of Any Existing Detention Facility? After resuming control of what information would appear on the record, Judge Pohl emphasized his concern that an “external body” is superseding his authority, remarking that it was if “if some external body is turning the commission off.”

Nevin, on behalf of Khalid Sheikh Mohammed, echoed Judge Pohl’s concerns and asked: “Who is controlling these proceedings?”

Learned Counsel for Walid bin Attash, Cheryl Bormann, emphasized  that the mere mention of a motion that contained some classified information seemed to trigger the censorship..

Defense Counsel for Mustafa al-Hawsawi, Navy Commander Walter Ruiz, raised an even more worrisome implication:  If an external body above Judge Pohl’s authority is censoring the audio/visual feeds, that same external body might also be eavesdropping on the defense teams’ communication during the proceedings even when they are not addressing the court. After all, the courtroom is filled with microphones.

Only the Prosecution did not look surprised when the curtain of silence fell upon the courtroom, and they would not discuss what they knew in public.

Counsel discussed these issues in a closed session Monday afternoon, originally slated to deliberate the Military Commission’s Rule 505, which states that an established attorney-client relationship can only be severed for good cause, by the request of the accused, or upon application for withdrawal by counsel. Rule 505 became a pressing issue early in Monday’s session because former-Detailed Defense Counsel for Walid bin Attash, Marine Major William Hennessey, suddenly withdrew from representing his client. Bormann expressed bin Attash’s wish to sever the relationship. However, Judge Pohl stressed the importance of clients themselves, not their counsel or proxies, controlling the severance of an attorney-client relationship when good cause has not been shown, as is the instant issue.

A Case in Point: Denial of Attorney Access to Clients

Before Judge Pohl heard any motions for the day, Ms. Bormann addressed a prevailing issue throughout her representation of Walid bin Attash during the past year: the United States, she argued, obstructs defense counsels’ access to their clients. Bormann and her co-counsel for bin Attash attempted to meet with their client in private at around 8:15, shortly before the proceedings. Bin Attash was present; however, Bormann and her co-counsel were denied any access to their client until he was brought to the courtroom under guard. Bormann argued that today’s barrier to accessing her client was a case in point, following along the lines of other instances of impeded attorney-client access.

Are Defense Attorneys Truly Free to Communicate with Their Clients?

Amidst vocal reactions from the gallery behind the glass, Ms. Bormann  told Judge Pohl, “You don’t live my life.”

Many of the families of 9/11 attack victims present did not, understandably, commiserate with Ms. Bormann. However, Bormann made her remark in the context of her ethical dilemma as an attorney whose attorney-client communication is seized for review by the United States. Ms. Bormann made the point, essentially, that she has not been truly free to communicate with her client since October 2011, thereby depriving her client of her ability to provide a fully informed defense against the charges against him.

Why the Accused Waive Their Rights to Be Present During the Hearings

Cheryl Bormann’s zealous advocacy for her client, Walid bin Attash, was matched in part by her client’s own level of engagement during the proceedings. Bin Attash, with a long, black beard, a head scarf, and a white tunic covered by a camouflage vest, spent much of the proceedings pouring over binders of information through thick, black glasses. Bin Attash made many notes and communicated often throughout the day with his co-defendants.

Anticipating that the accused would abstain from appearing in further sessions this week, Monday’s session concluded with Judge Pohl requiring the accused to answer whether they understood their right to appear at their hearings, and whether they had any questions for him about their rights. All of the accused answered in Arabic, through a translator, that they understood their right to appear at the hearings. But only Walid bin Attash took the opportunity to discuss why the accused, in their own words, waive their rights to be present during their hearings. Bin Attash, a Yemeni, explained excitedly in Arabic that the hearings’ process gives the accused no incentive to appear in court. The accused have been unable to develop trust in their attorneys despite a relationship lasting over a year. Bin Attash clarified that he and his co-defendants do not want this to be a “personal issue” with Judge Pohl. Bin Attash closed his comments by declaring that the Prosecution does not want the accused to hear or understand anything (presumably in reference to their rights and their waivers to appear at the hearings). Bin Attash:

“We have no motivation to come to court. We have been dealing with our attorneys for a year and a half, and we have not been able to build trust with them. Their hands are bound. The prosecution does not what us to hear or understand or say anything. They don’t want our attorneys to do anything.”

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

White House Shutters Office Dedicated to Closing GTMO

The Morning Brief from the Soufan Group and Fordam Law’s Center on National Security reported this morning:

The Obama administration has reassigned Daniel Fried, the special envoy for closing the U.S. detention center at Guantánamo Bay, and is not expected to replace him with another high-level official, reports the New York Times. Fried’s duties will be “assumed” by the office of the State Department’s legal adviser, an official notice stated. Analysts say the decision is an indication the White House does not view shuttering Guantanamo as a realistic priority, despite prior administration statements to the contrary.

This represents a major set-back for advocates of closing the off-shore detention center. Removing the office from the White House and placing it at State reduces its visibility and weight, thus making even less likely to succeed (if that is even possible). In addition, unless the State Department’s Office of the Legal Adviser creates a special position to handle the Guantánamo closure, the project will have to compete for time and attention with other concerns handled by the Legal Advisor. Given the lack of progress on the issue, those other issues will understandably be deemed more pressing, pushing closure of the facility even farther back onto the back burner.
Paul Taylor, Senior Research Fellow
Center for Policy & Research

Update re: AV censorship at Monday’s hearing

After yesterday’s censorship of the courtroom proceedings at GTMO, it was rumored that the issue would be addressed at a press conference this morning.

Instead, however, Judge Pohl declined to explain the incident, stating that it was not a discussion that was appropriate for open court.  He explained that a “security officer” is responsible for cutting of the audiovisual feed, but did not explain where this officer is located or why someone outside of the courtroom has the authority to censor the proceedings.

It will be interesting to follow this story as it unfolds, but for now, censorship in the courtroom remains just one of the many closely-guarded secrets at Guantanamo.

Kelly Ann Taddonio, Research Fellow

Center for Policy & Research

 

Censorship Episode During Today’s KSM Hearings Reveal New GTMO Secret

By now, those who follow Guantanamo-related news closely are aware of today’s censorship episode during the military commission hearing for Khalid Sheikh Mohammed (KSM).

During military commission hearings, journalists and observers are seated outside of the courtroom.  They can watch the hearings as they happen, but the sound is delivered via an audiovisual feed, which has customarily had about a 60-second delay.

Today, however, an unknown government censor abruptly shut off the audiovisual feed as David Nevin, counsel to KSM, began his request for information on the case, igniting frustration in the courtroom.   Until today, no one, including Judge Pohl and the defense attorneys, knew that the feed could be cut off by someone outside of the courtroom.  The feed is usually cut off by a security officer in the court or the judge, and typically everyone in the courtroom is aware of what is happening.

The action today generated a buzz on twitter amongst journalists present at the hearing.  Charlie Savage (@Charlie_Savage) said that the switch was hit after the attorney simply read the title of his own, unclassified brief.  Many others, like John Knefel (@johnknefel) indicated the surprise of Judge Pohl, and were surprised to find that even Judge Pohl didn’t know who hit the censorship switch.  Knefel tweeted,

“Let today’s censorship episode sink in. Gov official cut feed. When it returned, judge was furious & confused abt why it happened.”

It is rumored that the censorship issue will be addressed at a press conference in the morning, but until then, it certainly brings to light some interesting questions about the secrecy surrounding Guantanamo.

Who is really in control of the courtroom, if its not Judge Pohl? Why did the government feel the need to censor Nevins’ opening statements? As it turns out, there is even more secrecy surrounding Guantanamo than even those who appear to be closest to the action could imagine.

Kelly Ann Taddonio, Research Fellow

Center for Policy & Research