Declassification of KSM Manifesto Provides a Platform for Extremism

As I discussed at length last week, high-value detainee Khalid Sheikh Mohammed (“KSM”) recently drafted a manifesto, which was turned over to GTMO officials in October and declassified earlier this month by Judge Pohl. It is my personal opinion, however, that this “manifesto” should not have been released at all, in any form. Continue reading

KSM Releases Lengthy ‘Nonviolence’ Manifesto, Shows Nothing Has Changed

 

High-value Guantanamo detainee Khalid Sheikh Mohammed (“KSM”) has released a 36-page ‘nonviolence’ manifesto, filled with deeply extremist religious ramblings and advocating that Muslims should avoid using violence to spread Islam. What KSM fails to realize however, is that, while what he likely means is avoiding force, his hate-filled, extremist rant is nonetheless promoting violence, hate, and intolerance.  Continue reading

Lawyers Permitted to Photograph Guantanamo Detainee KSM’s Scars

In a piece published in yesterday’s Miami Herald, noted Guantanamo journalist Carol Rosenberg announced that military judge James Pohl will allow defense attorneys to photograph the scars on the wrists and ankles of accused 9/11 mastermind Khalid Sheik Mohammed (“KSM”) and his co-defendant Walid bin Attash. This is a significant development, as it could be used in the trial of KSM and his alleged 9/11 co-conspirators to demonstrate that the men were subjected to torture while they were being held in U.S. custody at Guantanamo Bay Detention Center. Continue reading

Al-Liby Pleads Not Guilty in NY Federal Court

Abu Anas al-Liby, the Libyan man and suspected al-Qaeda leader accused of aiding the 1998 U.S. embassy bombings in East Africa, appeared in a New York federal court for the first time yesterday.  Al-Liby pleaded not guilty to charges linking him to the bombings, as well as charges that allege that he plotted with Osama bin Laden to attack American troops across the Middle East.  Reports from inside the court stated that al-Liby appeared weak and in poor health, most likely due to his decision to stop eating while aboard a U.S. ship as well as an ongoing bout with hepatitis.  Al-Liby was captured earlier this month after he was found by American special forces in Tripoli. Continue reading

A Week at Guantanamo Bay

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.

Continue reading

Lietzau Condemns Guantanamo & Detainee Status

A few days ago, a story came out in which William Lietzau, the Pentagon’s Deputy Assistant Defense Secretary for Detainee Affairs and point-man on Guantanamo Bay, admitted that he would argue against building Guantanamo.  This came following Lietzau’s announcement that he would be leaving his post to continue his career in the private sector.  He also gave President Obama a pointer on how to close Guantanamo; announce that the so-called war against al-Qaeda has come to an end.  Lietzau, who was key in getting Guantanamo built in the first place, was quoted as saying, “[a]rguably, if the war aim of diminishing Al Qaeda’s ability to mount a certain level of attack has been achieved, we could declare an end to hostilities and return to dealing with the threat as a law enforcement matter.” Continue reading

Inside the SJC’s Guantanamo Debate

Last week, we wrote about the Senate Judiciary Committee’s hearing on Guantanamo Bay.  The debate, entitled “Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications,” brought together members of Congress from both sides of the aisle, including Chairman Dick Durbin (D, IL); Chairman of the Full Committee Patrick Leahy (D, VT); Ranking-Member Ted Cruz (R, TX); and Rep. Mike Pompeio (R, KS-4), among others.  Testifying were top-ranking members of our armed forces and members of international human rights organizations, including Major General Paul Eaton, U.S. Army (Ret.); Brigadier General Stephen Xenakis, M.D., U.S. Army (Ret.); Lieutenant Joshua Fryday, Judge Advocate General’s Corps., U.S. Navy; Frank Gaffney, Founder and President, Center for Security Policy; and Elisa Massimino, President and Chief Executive Officer, Human Rights First.

Most of the usual Guantanamo-related topics were discussed, including arguments for and against the closure of Gitmo, what that closure might mean for American national security, and how we might go about transferring current detainees to domestic prisons or foreign countries for continued detention or release.  As we’ve come to expect, testimony from Congressional representatives was fairly predictable based on party membership.  Chairman Durbin opened the hearing by calling for the closure of Guantanamo Bay, stated that Gitmo had become an “international eyesore” and that “the Administration could be doing more to close (GTMO)…, [but] the President’s authority has been limited by Congress.”  Nothing too groundbreaking there, but it’s always nice to see someone in a position of authority acknowledging that this isn’t all President Obama’s fault.  Like I’ve said before, this isn’t a unilateral decision for the President to make.  It’s going to take a level of bipartisan cooperation that’s been completely absent in Congress in recent history.

But even if President Obama can’t single-handedly close Guantanamo, Chairman Durbin noted that through the FY14 Defense Bill, passed by the House Armed Services Committee in early June, he has an expanded ability to dispose of prisoners (calm down, disposing means releasing or transferring in this context) as he sees fit.  But we’ve seen problems with this as well.  First, where do we release or transfer these detainees?  Just a few days ago we saw Senator Saxby Chambliss voice concerns about releasing detainees to their home countries where they may attempt to join or re-join al-Qaeda.  Our European allies have a history of rejecting transfers of Guantanamo detainees.  And we certainly aren’t going to give them asylum here.  So even if the President’s powers to release or transfer detainees have been expanded, it’s still a delicate situation.

Ranking-Member Cruz was one of the few speakers to advocate for keeping Guantanamo Bay open, bashing the Obama administration for it’s policy and saying that we “continue to apologize for continuing the policy.”  Senator Cruz’s main argument was that we can’t embrace a “utopian fiction” where released detainees embrace global peace and pledge not to take up arms against the United States.  I could understand that concern if we were talking about releasing KSM.  I can understand that concern if we’re talking about releasing any detainee that we know was involved in attacks against the United States.  But I’m pretty sure nobody is calling for those detainees to be released.  So what about the detainees with no formal charges or evidence against them?  Are we going to hold them for the rest of their lives just because there’s a chance they could join al-Qaeda if we release them?  Apparently Senator Cruz would say yes.

Major General Eaton and Brigadier General Xenakis also testified in front of the panel, both advocating for the closure of the detention center.  Major General Eaton stated clearly that “[t]here is no national security reason to keep Guantanamo open,” and even went so far as to say the keeping it open this long has undermined national security by damaging our “moral leadership, political leadership, military power and economic power.”  Brigadier General Xenakis attacked the much-covered force-feeding policy, stating that it violates not only the basic ethics of the medical field, but also the Geneva Convention.

Rep. Pompeio joined Senator Cruz’s position, making the bold claim that “there are no human rights violations occurring at [GTMO].”  He also voiced concerns that foreign nations would torture detainees if we were to transfer them.  Now, I’m not saying I can’t see any reason behind the force-feeding policy.  I get that we don’t want upwards of 40 detainees dying of malnutrition on our watch.  But to say shoving a rubber tube through the nose and into the stomach of a fully conscious human being in an extremely painful fashion is not a human rights violation is borderline ludicrous.

The way I see it, the only semi-logical argument for keeping Guantanamo Bay open came from Mr. Gaffney.  Mr. Gaffney argued that Gitmo should remain open until a safe and effective alternative is pinpointed.  That much I can get on board with.  I already pointed out that there are some holes in the current plan.  But Mr. Gaffney’s seems to be worried about detainees escaping from super-max prisons on U.S. soil and rejoining al-Qaeda or remaining in the U.S. to plan attacks.  Is this what we’re really concerned about?  We already trust maximum security penitentiaries to hold our most notorious murderers, so why does it matter what their nationality is?  According to documents from the New York State Department of Corrections, there were a total of 10 escapes from detention facilities of any kind between 2006 and 2010.  That equates to a rate of .03 escapes per 1,000 inmates during that time period, and includes statistics from ALL New York state penitentiaries.  I, for one, am no too worried about detainees, who will probably have additional monitoring in place, escaping from super-max prisons.  Again, I agree that we need a rock-solid plan in place before we close Guantanamo, but the concerns cited by Mr. Gaffney are simply not realistic.

That’s probably a good thing since the plan proposed by Democrats involved transferring detainees to the same super-max facilities that Mr. Gaffney is so worried about.  Senator Dianne Feinstein (D, CA) pointed out that it will cost tax payers roughly $551 million to operate Guantanamo Bay in 2013, and roughly $2.1 million per detainee.  According to her estimates, it would cost only $287,000 to house a detainee in a super-max facility here in the U.S.  Especially since the sequester hit the federal government, this would obviously be a much more cost-effective model.  So on top of potentially eradicating human rights violations, we might be able to take a step towards a balanced defense budget.

All in all, we are still in a stalemate.  The hearing was essentially a summary of all the arguments we’ve heard about Guantanamo Bay over the past 5 years.  Democrats and members of the military are still pushing for its closure while Republicans are standing firm on keeping it open.  I don’t know that we’re any closer to actually closing Gitmo after the hearing, but it’s good to see that we haven’t given up the fight.

***Special thanks to Mr. Rick Erkel for reporting on the hearing

Chris Whitten, Research Fellow
Center for Policy and Research

Trials for Alleged 9/11 Plotters Resume at Guantanamo Bay

Lost in the shuffle during a week where the NSA scandal has dominated headlines is more news coming out of Guantanamo Bay.  On Monday, the government released the identity of Guantanamo’s “indefinite detainees,” or those who the government has deemed too dangerous for release regardless of whether they can be tried in a military court.  The government has already announced that a number of these detainees will be held indefinitely even though they cannot be tried due to lack of evidence. The names have been kept secret since 2009 when multiple agencies investigated files on detainees in order to support President Obama’s initial effort to close the Guantanamo Bay Detention Center.  Normally these detainees could not be constitutionally held without the possibility of trial, but in 2001 Congress authorized the practice with the “Authorization of Military Force” bill.

Human rights groups including Human Rights Watch and Amnesty international have condemned the idea of “indefinite detainees,” calling for the release of all prisoners that the government has no intention of trying in a court of law.  Some men on the “indefinite detainees” list are actively involved in the well-documented hunger strikes.  At least two, both Afghani men, are deceased, with one committing suicide and the other dying of natural causes in Camp 6.  While the practice of holding detainees without the possibility of trial may be controversial, the release of their identities is a small step towards the transparency and legitimacy that human rights groups have been calling for in recent years.

In other Guantanamo-related news, pre-trial hearings for five men accused of plotting the September 11th attacks resumed on Monday, four months after CIA listening devices were discovered in conference rooms used by the detainees’ attorneys.  Included in this group is Khalid Sheik Mohammed, the alleged mastermind of the attacks.  The hearings included statements from defense attorneys claiming that CIA personnel tortured the detainees while they were being held in overseas prisons prior to their transfer to Guantanamo Bay.  They have also filed motions to dismiss the case due to meddling by senior military officials.

Also present in the courtroom were two victims and family members of three other victims that perished in the attacks.  The observers met with prosecutors and defense attorneys earlier in the week and pleaded for a quick and efficient trial.  At least one victim, a firefighter who was injured by falling rubble in the aftermath of the attacks, is expected to testify on behalf of the prosecution.  As one could imagine, the trials will probably not be very speedy.  Detainee trials at Guantanamo have been ridiculed for many reasons, one of the biggest being that they are inefficient and often take years to complete.  These particular observers have been waiting on an outcome for some twelve years.  Although the trials are resuming, we may have to wait a lot longer to see a resolution.

Chris Whitten, Research Fellow
Center for Policy and Research

KSM, Co-Defendants’ Legal Mail Ransacked And Seized

2L student Josh Wirtschafter is in GTMO this week observing the military commission hearings.  His observations from Wednesday’s hearings are printed below.

Wednesday’s pre-hearings in,United States v. Mohammed, et al., ended in soap opera-esqe drama. The last motion of the day was postponed until Thursday morning when it was announced that the alleged mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and two of his co-defendants, had returned to their cells after yesterday’s session to find their attorney-client mail ransacked— and much of it seized.

The news of the ransacking and seizure of attorney-client mail was apropos, given the morning testimony of Lieutenant Alexander Homme, who detailed the attorney-client mail screening process. Pursuant to a Staff Judge Advocate (SJA) Order, it was Homme’s job to screen mail both to and from detainees in their cells as well as in Echo II, the attorney-client meeting room. In short, Homme explained that non-legal mail would be separated from the legal mail, which was vaguely defined as any hand-written or typed documents that were prepared by the attorney, and that legal mail was allowed to pass, non-legal mail was subjected to seizure and further review. Eventually, however, it became clear that legal mail had a somewhat narrow definition, as even exhibits attached to an amicus brief, for example, are not guaranteed to be construed as “legal” for these purposes and thereby pass to a detainee.

Rejected non-legal mail would be seized and delivered to J2, the intelligence agency of Joint Task Force (JTF) at Guantanamo Bay, for inspection. Ms. Bormann, Counsel for Mr. bin ‘Attash, evidenced the difficulty of this process as she recounted, and Homme confirmed, four occasions where he rejected her attempt to deliver legally relevant documents to her client (an Arabic translation of the screening order, the book “Black Banners” that contained a chapter specific to her client’s charges in this case, a NAVY JAG Instruction on JAG ethics, and an amicusbrief from the al-Nashiri case that dealt with the same kind of seizure of attorney-client privileged material happening here).

Various defense attorneys noted the problematic nature of the screening process. First, the Order’s vague definition of legal mail makes it tremendously difficult to pass legal documents from attorney to client, and vice versa: what may be considered highly relevant to the defense as  part of effective legal, can be construed by the government as non-legal mail and subject to seizure. And second, even if the defense wants to exchange non-legal mail, all of it must first be screened by J2, a process by which it could take months to be cleared and delivered, and still, there is no guarantee that all of the documents will ultimately be delivered.

The reported ransacking and seizure of the accused’s legal mail seemed almost icing on the cake for defense counsel.

J2 Just Might Visit a Local Radio Shack

Next on the stand was Colonel John Vincent Bogdan, Joint Task Guard (JTG) Commander, who is responsible for controlling the attorney-client meeting room at Echo II. Lead by the compelling cross-examination of Mr. Nevin, Learned Counsel for Khalid Sheikh Mohammed, Bogdan revealed that although he began his commission as JTG Commander in June 2012, it was not until January 31, 2013—two weeks ago—that Bogdan learned of Echo II’s audio capabilities from Captain Welsh. He represented to the court that he had no knowledge of Echo II’s audio capabilities until that point, and assured the court that “they do not audio monitor in Echo II.” After learning of these audio monitoring capabilities, Bogdan issued a verbal order, not a written order, “that there was to be no audio monitoring of attorney-client meetings.”

In a quick witted response, Mr. Nevin asked: “But since you understood there was no audio — excuse me — audio monitoring capability, there was really no reason to order that there be no audio monitoring, right?” Why issue an order to not do something that is already not done? Bogdan said it was necessary to cement the policy.

Thereafter, Mr. Nevin sought answers from Bogdan as to how he took measures to assure that his verbal order would be obeyed. Bogdan confirmed that his guards dismantled the audio monitoring system. They did not remove the system altogether, however, and instead they “disconnect[ed] all the power supplies and secure[d] all the power supply so the system couldn’t be inadvertently turned on.” In other words, he had the electrical cord removed from the wall.

Bogdan also confirmed that J2 owned all of the audio and video technology in Echo II—the cameras, the microphones, and the wires connecting those pieces to the video and audio systems. This past weekend the defense were permitted to enter and observe the audio monitoring system in the control hut for Echo II. The audio system is called Louroe AP-4. It is a non-recording system, but it has an audio output jack in the back of it where one could simply plug-in a digital recording device—try Radio Shack.

The defense “tag-team” made the point, and Bogdan admitted, that as easy as it was to conceal from Bogdan the fact that Echo II has audio monitoring capabilities for over a year into his commission, J2 could also have just as easily purchased tiny microphones from Radio Shack and put them in Echo II without him knowing.

Balancing Competing Interests: National Security v. Protecting Attorney-Client Privileged Communications

Easy to lose in the drama and vagaries of another day in GTMO, the day’s pre-hearings were an emergency interlocutory motion to investigate into intrusions on attorney-client and attorney-attorney privileged communications.

JTF-GTMO wants security in Echo II for national and camp security reasons. The defense teams want to be relieved of the reasonable fear that they are being listened to in the courtroom and in Echo II. All seemingly reasonable concerns.

Ms. Bormann suggested a remedy—that the audio system be completely removed (maybe destroyed and trashed) and the guards instructed to monitor the attorney-client meetings in Echo II from chairs outside the room, leaving the door open but having them sit far enough away so that they cannot hear the conversations inside. The court seemed skeptical, and I suspect both prosecution and defense will continue to be so as well.

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.