The 9/11 Five’s Defense Counsel Granted Limited Visitation Privileges to “Camp 7″

Judge James Pohl has granted the defense counsel in the 9/11 military commission limited access to Camp 7, the top secret prison home of the alleged mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and his four co-defendants.

The defense counsel teams initially requested a 48-hour access stint, which included the ability to sleepover with their clients once per month. The Prosecution proposed a cursory two-hour tour of Camp 7.

On Tuesday, Judge Pohl ruled that, for one time only, up to three members of each defense team could visit their respective clients in Camp 7 for no longer than 12 continuous hours. The visitation privilege was limited to the hours between 6 a.m. and 9 p.m.

No doubt about it: this is a big deal. Camp 7 is one of the most top-secret facilities on Guantanamo Bay Naval Base, Cuba. Even its very location is classified. Not to mention, this ruling comes one week after Camp 7 military police ransacked some of the defendants’ legal bins and seized already screened and approved personal items. The defense was in uproar last week, interpreting this as another attempt by the government to intrude on attorney-client privileged communications.

While the defense teams will be permitted to take notes, make sketches, and pictures during their visit, it is no surprise that those materials will be subject to inspection.

Commander Ruiz Angers Admiral MacDonald

Recapping the fourth and last day of last week’s 9/11 military commission hearings at Guantanamo Bay, presiding Judge James Pohl promised to address “the bin issue” after lunch.

But first, the court heard testimony from Admiral Bruce MacDonald, the Director of the Office of the Convening Authority and the presiding Convening Authority for the Office of Military Commissions. Commander Walter Ruiz, defense Counsel for Khalid Sheikh Mohammed’s co-defendant Mr. al-Hawsawi, argued that MacDonald inappropriately approved the 9/11 five’s eligibility for death sentences before each had been provided with an appropriate amount of informed legal advice.

A veritable screaming match erupted when Ruiz rhetorically asked, “Admiral, can a capital defense lawyer—who doesn’t have a translator that speaks the defendant’s language, who doesn’t have a mitigation expert, and who cannot communicate in writing with his client—present adequate mitigation evidence?”

Ruiz explained that he was without the help of a mitigation specialist—a defense team’s psychologist of sorts, who possesses clinical information-gathering skills enabling him or her to extract from the defendant sensitive, sometimes embarrassing and often humiliating evidence that will shape a defense attorney’s themes and theories of the case. Ruiz argued that while it is true that MacDonald had approved a particular mitigation specialist, he was of no beneficial use because MacDonald refused to approve his security clearance. So, although Ruiz’s mitigation specialist could speak to Mr. al-Hawsawi, he could not speak with him about any of the pressing classified issues—like his experience with “enhanced interrogation techniques.” Also, Ruiz was without an approved personal translator, and was instead relegated to use a cadre of government-provided translators that had independent contracts with JTF-GTMO (Ruiz disputes having rejected eight translators).

Approaching lunch break, Judge Pohl asked MacDonald if he would agree to be interviewed by the defense. No, he answered. But then objected to interviews without a government official present.

Ruiz turned to sit down from the podium, but quickly returned as if he had forgotten something, and added with some sarcasm, “Judge, I will simply indicate as an officer of the United States Navy, I am a member of the government.”

“Commander, I’m more than aware of that,” Judge Pohl said, while nodding and smirking.

Admiral MacDonald will be recalled later in the hearings.

“The Bin Issue”

Ms. Cheryl Bormann, Learned Counsel for co-defendant Mr. bin ‘Attash, announced at the end of Wednesday’s hearing that when her client, Mr. bin ‘Attash, lead defendant Mr. Khalid Sheikh Mohammed, and another co-defendant returned to their cells after Tuesday’s session, their legal bins containing attorney-client privileged mail had been ransacked and some items were seized. Bormann summoned Navy Lieutenant Commander George Massucco, Assistant Staff Judge Advocate for JTF-GTMO, to take the stand.

Massucco, whose name was laughably butchered a dozen times before he was forced to spell it out for counsel, confirmed that there had been a routine inspection and items were seized, but the SJA Office has since determined that the items would be returned to the three co-defendants. He informed the court that the seized documents, mostly photos (one of the Grand Mosque in Mecca), were seized because they were improperly stamped and without initials.

Bormann alleged that the inspection protocol and stamping system was flawed in its practice. The guard staff conducting inspections, she explained, were re-screening documents that had already been approved by J2—documents that had been in the defendants’ cells, in some cases, for over a year and half. Having passed thousands of inspections since 2011, it is strange, she said, that they are being seized now. Her concern heightened when she learned that  a turnover in the guard force—what Massucco called an Army-Navy “rip”—was taking place.

“But as I see it, it’s not going to really matter who does the inspection if the inspection keeps happening. The seizure of the same mail, the same materials over and over and over, whether that seizure is done by a PRT person or whether that’s done by the guard force— it boarders on harassment,” Bormann pleaded.

“I got it,” Judge Pohl said.

Chief Prosecutor, Brigadier General Mark Martins tried to cool the tension radiating from the defense’s side of the room. He explained that the inspection was routine, and the defense counsel teams unanimously agreed that such a procedure is reasonable and necessary in order to protect against a legitimate national security risk. The seizure, he explained, was a competent response to the same protocol that has been used by the “old hands” and is currently being taught to the “new hands.”

Bormann demanded the need for some common sense legislation. Yet Judge Pohl responded, “And I think, as you recognize, you said you can’t legislate common sense or order common sense; all you can do is the best you can with what you’ve got…. And you’ve got to balance [the legitimate need for security] obviously and minimize the intrusion to privileged materials.”

The defense proffered an off-the-cuff proposal for “common sense legislation”: that all documents be stamped properly in accordance with JTF-GTMO SOP and all inspections be performed under the same accord; and that the defendants’ legal bins only be inspected for illegal contraband (i.e. weapons), not for the content of the items contained therein; and if items are seized, the Assistant SJA should refer to defense counsel for reasonable clarification.

Moving forward, the defense has been given 7 days from last Thursday to submit a formal proposal, and the prosecution will be given 7 days to respond, although they have already made it clear that a motion to grant AE 018 would be their position.

In the meantime, the prosecution agreed to have all sixteen “smoke detector” microphones removed from Echo II.

Josh Wirtshafter is a fellow at the Center for Policy and Research at Seton Hall University School of Law student. He is a member of the Class of 2014 and is a 2011 graduate of Franklin & Marshall College, where he majored in Religious Studies.

Dispatch from GMTO: Al-Nashiri Military Commission Hearing

Al-Nashiri Military Commission: ‘The Man Behind the Curtain’ Turns Defense Counsel Into Cornered Huddled Masses; Prosecution says: ‘Al-Nashiri’s Incompetent to Stand Trial; Now Let’s Continue With the Trial’ 

This post is the product of research fellow Sean Kennedy’s observations at last week’s al-Nashiri hearings at Guantanamo Bay.  

In the first of what was supposed to be four days of hearings in Guantanamo in the case against Abd al-Rahim al-Nashiri—the alleged mastermind behind the U.S.S. Cole bombing—the commissions came to a screeching halt.

Judge James Pohl granted the prosecution’s motion to examine the mental capacity of al-Nashiri and all other scheduled motions for the proceedings were held in abeyance until a determination on al-Nashiri’s capacity was finalized.

The courtroom atmosphere was contentious throughout the duration of the proceedings with what might be termed bickering between both sides and Judge Pohl.

In total, two motions were heard before Judge Pohl affirmed the prosecution’s motion on al-Nashiri’s mental capacity and effectively quashed the hearing until a yet be determined date.

Having said that, the hearing was not without drama.

 

AE 149 – Motion to Investigate the Ability of Third Party Monitoring of Attorney/Client information.

 

The morning began with a hearing on a last minute motion filed by the defense on Friday, February 1, 2013, in response to last week’s unsettling revelation that outside governmental agencies could listen to the proceedings remotely, and “close down” the the court without the Judge’s knowledge or permission.

The prosecution elected not to draft a written response to the motion, instead opting to respond on the record.  Defense counsel, Commander Steven Reyes, argued that because of this undisclosed monitoring by outside agencies, the defense’s ability to have privileged conversations with their client was impaired and thereby they would not be able to provide effective representation. In addition, the defense argued that further discovery would be necessary to determine whether or not this same kind of remote monitoring system was in place in the holding areas outside of the courtroom and in the attorney conference room on the far side of the island where meetings with the detainees take place.

In response, Mr. Anthony Mattivi, the U.S. attorney representing the prosecution, claimed that the defense was attempting to switch the burden and place it on the government while offering no evidence that any monitoring could take place outside of the courtroom. The prosecution attacked the lack of factual support in the defense’s brief for its claims and stated that the defense was conflating two separate issues. Finally, Mr. Mattivi criticized the defendant’s proposed remedy of shutting down the proceedings to conduct an investigation into the monitoring by stating, “I don’t quite understand how that would work from a legal perspective.”

Judge Pohl was quick to push Commander Reyes about the lack of evidence to support a claim that conversations could be monitored in the holding cells outside the courtroom or in the attorney meeting rooms by the prison. The defense claimed that the events of last week were proof positive of this capability and should be more than enough to overcome its burden of proof and persuasion. The protracted dialogue between Lt. Commander Reyes and Judge Pohl became increasingly heated as the commission wore on, with Judge Pohl contentiously asking, “Does it surprise you that the government can monitor conversations across the world?”

The Judge denied the motion, ruling that the defense did not proffer enough evidence to carry the burden but made note that if evidence did arise it would require serious and significant remedies. However, after the motion was denied, Commander Reyes requested a 3-hour recess to contact ethics specialists to ensure that the defense would not be violating any ethical obligations by continuing the representation in light of the specter of remote monitoring of attorney client conversations.

In addition the defense wanted to speak with the individuals that oversee the courtroom’s technology to determine what, if anything, could be done. Judge Pohl initially took issue with the request and expressed concern that defense was attempting to sua sponte overturn his ruling on the motion. After a prolonged exchange, the Judge granted a one-time exception, allowing this recess to give defense counsel the opportunity to confirm that it was not violating any ethical obligations under the circumstances.

During the break, the defense counsel told the court it learned that third parties could monitor conversations on any microphone inside the courtroom. However, there was no evidence that any audio recordings could be taken from the holding cells outside the courtroom. Interestingly, there was no clear answer with regard to the Attorney meeting room, a revelation that presented great pause for the defense.  Judge Pohl emphasized that he would not order an attorney to act in a manner that violates an ethical obligation and said that he understood the defense’s concerns. He reiterated that the current situation did not pose such an ethical issue. Defense counsel had consulted with their ethics counselor and indicated they were ready to proceed. However, as the day would prove, the government would shortly take the position that ultimately forced this entire proceeding into an indeterminate hiatus.

Additionally, an agreement was set up with the prosecution to speak to various technical operators at the detention center to address the remaining confidentiality concerns. However, due to what was said to be the monitoring capabilities from the microphones throughout the court room, defense counsel huddled in a corner of the court room on several occasions in order to confer privately, outside the range of the microphones and what defense counsel referred to as “The Man Behind the Curtain (perhaps having read my colleague, Adam Kirchner’s, report in The Public Record on the KSM hearing). While the motions continued, the “Man Behind the Curtain” is, as of yet, still unidentified, and seemingly poses significant obstacles for the defense going forward.

 

AE 99D—Government Motion for Commissions to Discuss with the Accused Matter Considered by the Commission During the 18-19 July 2012 and 23 October 2012 Sessions.

The next motion before the Commission involved the prosecution’s request to clarify a waiver of appearance by al-Nashiri for the above-mentioned dates. The prosecution argued that the law has now changed– allowing a detainee to waive his right to appear in the beginning of a particular session while still maintaining the ability to change his mind and appear in the session later in the day. Previously, when a detainee waived the right to appear, the waiver was in force for the full day. The prosecution argued that because of this change the record needed to be clarified and, if necessary, al-Nashiri would need to briefly speak in open court.

The defense countered by asking the court for the ability to investigate underlying facts in any statement  al-Nashiri may make on the record if he is required to speak. The defense argued that the investigation would occur for the sole purpose of providing context to these future statements so that they could not be used as evidence against al-Nashiri’s mental competence. Commander Reyes pointed out that the uninvestigated statements made by al-Nashiri were the basis for the prosecution’s current motion to exam his mental capacity to stand trial. Judge Pohl reserved his decision on this issue pending the result of the upcoming motion.

 

AE—140 Government Motion for Inquiry into the Mental Capacity of the Accused Under R.M.C. 706

 

The third motion of the day had the potential to stop all litigation in the case dead in its tracks. In an unusual twist, the prosecution was petitioning for an investigation into the mental state of al-Nashiri in order to determine whether or not he is able to understand and assist in his own defense. Judge Pohl asked the prosecution if they understood that a grant of this motion would put the case on hiatus until the examination was concluded. Mr. Mattivi acknowledged that he understood; however, his answer would change immediately after the Judge made his ruling.

If granted, the 706 motion would allow the Judge to have a board of medical professionals appointed in order conduct the examination of al-Nashiri to determine if he is competent to understand the trial and assist in his own defense. CDR Andrea Lockhart argued that this examination was necessary because of the defense’s assertion that al-Nashiri suffers from PTSD, as well as statements made by al-Nashiri during a previous session where he waived his right to appear. She further stated that the board that was appointed would be independent from the prosecution or the defense.

Defense counsel Richard Kammen—sporting a symbolic Kangaroo pin on his lapel—countered by acknowledging that al-Nashiri has PTSD related to torture committed against him in a CIA black site, but that his competency has never been in question. The defense expressed concern that the information recorded during the examination would be discoverable by the prosecution in the event that a death penalty hearing becomes necessary. Judge Pohl explained that the defense “holds the keys to the car” regarding the report and that it will not be discoverable by the prosecution unless the defense puts it at issue in the trial. In addition, Mr. Kammen was doubtful that the board would be independent and feared the appointment of “hacks.” Finally, the defense requested the Judge to hear from Dr. Iacopino, who is an expert in the area of torture related PTSD victims, for guidance regarding who should be selected for the medical board if the motion was granted.

Ultimately, Judge Pohl granted the government’s request for the 706 inquiry and with that, further progress in the case was stopped. However, after the Judge’s ruling, Mr. Mattivi posited that the court should continue to hear the pre-trial motions because there was an “assumption of competency” relating to a 706 hearing, despite his previous acknowledgment on the record that this decision would effectively pause the trial. Commander Reyes countered by stating that the presumption is only applied to the hearing that occurs after the 706 motion and that it would not make sense to continue if the prosecution believes Nashiri to be incompetent— as they claim. The Judge agreed with Reyes and set up a tentative schedule for the board to examine Nashiri in approximately 6 weeks.

Mr. Mattivi’s final attempt to continue with the trial was telling. Arguably, the prosecution was attempting to pre-empt any mental capacity challenge made by the defense at a latter date by forcing al-Nashiri to undergo a competency test before the trial starts. It was unusual that the prosecution pushed for a motion that could potentially cause its entire case dismissed if al-Nashiri is found incompetent. However, Mr. Mattivi’s attempt to have the case continue after this motion was granted begs the question of how much the government actually believes it own claim regarding incompetence.

 

AE 135 – Defense’s Motion to Allow Dr. Crosby to Examine Nashiri without Shackles and not in the Presence of Guards

 

The final motion for the day involved a pre-arranged medical examination scheduled by the defense. Dr. Sandra Crosby was scheduled to examine al-Nashiri for physical signs of abuse relating to the torture committed by the CIA. The Judge asked Commander Reyes if the session would be observed by video, if there would be guards present outside the examination room, and if Dr. Crosby is willing to sign a waiver. Commander Reyes answered all of the questions in the affirmative. The prosecution, represented by Major Chris Ruge, argued that the shackles and guard presence was a reasonable safety measure that was requested by the JTF facility commander. Judge Pohl dismissed the prosecution’s argument and stated that this was a medical professional approved by the Convening Authority and that the defense request falls within the gambit of reasonable safety measures.

With that the session—and the case—was called to a close. The only item left on the agenda was an interview to take place the following day with the defense’s medical expert Dr. Iacopino. What was supposed to be four days of substantive motion hearings was reduced to a single day with a 3-hour recess. At the conclusion, many of the same issues are outstanding. The “Man Behind the Curtain” remains unknown and can still seemingly monitor the proceedings—and potential attorney client interviews—from a remote location. Further, the prosecution successfully stopped its own case from proceeding forward to trial. While this may seem like an unusual day in court, as Mr. Kammen articulated to the Judge, “Your Honor, it’s GTMO.”

 

Sean Kennedy is a student at Seton Hall University School of Law. He is also a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law.

This Week at GTMO: al-Nashiri Hearings

This week, from February 4-7, Judge Pohl will hear motions relating to the charges against al-Nashiri.  The most current docketing order for this week’s hearings was posted on January 14th (motions to amend this order have since been filed by both parties, but the outcome is not publicly available), and states the following motions (in this order) will be addressed this week:

a. AE 045 Government Motion for a Scheduling Order

b. AE 099D Government Motion for the Commission to Discuss with the Accused Matters

Considered by the Commission During the 18~19 July 2012 and 23 October 2012 Sessions

c. AE 107 Defense Motion to Compel the Convening Authority to Fund Two Individuals to

Act as Defense-Initiated Victim/Survivor Outreach (DIVO) Liaison (plus witness production issue

c. AE 114 Defense Motion to Find that RM.C. 703(c) violates 10 V.S.C 949j.(a)( ) and Mr. al Nashiri’s Constitutional and Statutory Rights to due process

f. AE 118 Defense Motion to Cease the Use of Belly Chains on the Accused by JTF~GTMO

g. AE 120 Defense Motion to Compel Discovery of Information in the Possession of any Foreign Government and the United States related to the Arrest, Detention, and Interrogation of Mr. al Nashiri (Classified)

h. AE 131 Defense Motion to Compel Production of Representative of the OCA to Testify at the Hearing on AE I12

i. AE 140 Government Motion for Inquiry into the Mental Capacity of the Accused Under R.M.C. 706

j. AE 141 Defense Motion to Compel Discovery of the Prosecution’s Prudential Search Requests

k. AE 142 Defense Motion to prevent Mr. Al4Nashiri from Being Removed from the Courtroom During a Closed Session

I. AE 143 Defense Motion to Compel a Copy of A ll Discovery Provided to Habeas Counsel

m. AE 144 Motion to Compel Discovery in the Possession of the United States Attorney for the Southern District of New York Demonstrating the Guilt of Fahd Mohammed Ahmed al~Quso and Jamal Ahmed Mohammad Ali al~Badawi Relating to the Present Charges

n. AE 145 Motion for the Commission to Consider the Defense Request for Expert Assistance III Camera al1d Ex Parte and to Compel the Convening Authority to Approve Funding the Expert as a Defense Consultant

o. AE 146 Motion for the Commission to Consider a Second Defense Request for Expert Assistance 111 Camera al1d Ex Parte and to Compel the Convening Authority to Approve Funding the Expert as a Defense Consultant

For more information on what specifically will be addressed, you can check the government’s website, http://www.mc.mil/CASES/MilitaryCommissions.aspx.  Simply enter al-Nashiri’s name, and  find the corresponding filing code (ex: AE 146) to read the parties’ detailed motions.  Feel free to leave a comment if there is a specific motion you would like to see the Center’s Fellows discuss further on the blog this week.

As you can see by the sheer volume of motions to be addressed this week, it will be an eventful few days.  Check back periodically for reports from our student observer, Sean Kennedy, who will be at GTMO observing this week’s hearings.

Kelly Ann Taddonio, Research Fellow

Center for Policy & Research

Too Many Cooks in the Kitchen

For a prosecutor, it is an odd way to “stick to his guns,” but Brig. Gen. Mark Martins, the chief prosecutor for military commissions at Guantanamo Bay, is refusing to support conspiracy charges against the alleged 9/11 conspirators.  He had previously acceded to dropping the conspiracy charges after the recent reversal in Hamdan. But the Convening Authority, Vice Admiral Bruce MacDonald (Ret.), pushed back by refusing to allow the charges to be dropped. Now the prosecutor is left in an uncomfortable position.

However, experts have noted that the Military Commissions Act of 2009 does not allow anyone, even the Convening Authority, to interfere with or unduly influence the prosecutor’s professional judgement. He may therefor allow the defense motion for dismissal of the conspiracy charges to go uncontested. In theory, he may even argue in support of it.

As noted by James Connell, defense counsel for co-defendant Ammar al Baluchi, this contest between the prosecutor and the Convening Authority emphasizes one of the fundamental weaknesses of the military commissions system: the Convening Authority has both judicial and prosecutorial duties. According to Connell, “The Convening Authority’s insistence on prosecution of the conspiracy charge at the same time it controls defense funding and hand-picks the panel of military officers to hear the case illustrates this conflict of interest.”

So far it seems that all the players are exercising independent judgment. However, these events should be a warning to Congress that the system they designed is far from perfect, with flaws that have long since been addressed in our federal courts. The use of a convening authority for courts martial allows a commander to balance the need for strong discipline with the exigencies of maintaining a functioning military. Such considerations simply do not exist for accused terrorists. As in federal prosecutions, terrorism and war crime charges should be brought by a purely prosecutorial authority, with an independent judicial authority controlling which charges may proceed. This is precisely what we have in federal courts.

Paul Taylor, Senior Research Fellow

Center for Policy & Research