Lawyers for Guantanamo detainee Tarek El-Sawah, an admitted al-Qaeda explosives trainer held at the facility for over 11 years, are arguing that he should be released because of his serious obesity-related ailments. While at Guantanamo, the 55 year-old El-Sawah nearly doubled his weight, at one point reaching 420 pounds. His lawyers argue that he could die at any time; he is diabetic, has trouble breathing and walking, and has difficulty staying alert during meetings. They maintain that he faces the very real possibility of not making it out of Guantanamo alive. Continue reading
Earlier this week, the Pentagon announced that it has appointed a special envoy in a renewed effort to close the Guantanamo Bay Detention Center. Paul M. Lewis, a former Judge Advocate General in the Marine Corps and current Democratic lawyer for the House Armed Services Committee, will take over the position on November 1. He will be working alongside fellow Capitol Hill attorney Clifford Sloan, who was appointed in June as the State Department’s envoy for Guantanamo. Continue reading
Judge Pohl, Chief Presiding Officer for the Guantanamo Military Commissions, ruled yesterday that pretrial hearings will move forward for the five Guantanamo prisoners charged in the September 11th attacks. In doing so, he denied a request by the detainees’ lawyers to pause the case until the Pentagon resolves concerns about the security of their computer system. Continue reading
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.
Thursday, in response to the May 22nd emergency motion requesting an end to the newly instituted groin searches, Federal District Chief Judge Royce C. Lamberth ordered the government to stop genital searches of Guantanamo Bay detainees prior to meeting with their lawyers. In his strongly-worded 35 page opinion, Judge Lamberth ordered prison commanders to return to an earlier search method described in a 2009 Defense Department task force review, which limited guards to grasping the waistband of a detainee’s trousers and shaking their pants to dislodge any contraband. The current search method at Guantanamo, referred to as an exaggerated response to unpersuasive security concerns, involves the touching and holding of detainees’ genital and anal areas “flagrant[ly] disregard[ing] the need for a light touch on religious and cultural matters” and dissuades detainees from gaining access to their lawyers. The order stated in part that:
“… the choice between submitting to a search procedure that is religiously and culturally abhorrent or forgoing counsel effectively presents no choice for devout Muslims like petitioners.”
While the government made justifications for the invasive searches at Guantanamo, i.e.the finding of homemade weapons and prohibited electronic devices in April, Judge Lamberth felt that the record failed to indicate “that the detainees have received any contraband from their attorney or that detainees have attempted to pass contraband to each other during phone calls or meetings with attorneys.”
Responding quickly to the order, the Justice Department filed an appeal late last night. The Justice Department has requested a hold to be placed on the stopping of genital searches, stating that Guantanamo detainees are able to gain access to weaponizable items which may result in suicide, harm to other detainees, or the guards becoming seriously injured. In addition to the appeal, the government submitted a sworn declaration from Marine General John Kelly, commander of United States Southern Command, who spoke strongly of the irreparable harm that would result with the discontinuance of genital searches at Guantanamo. The government claims that the newly implemented search methods have not deterred meetings nor have they impacted access to the prisoners. Furthermore, the government states Judge Lamberth’s order is barred by the Military Commissions Act, which “unequivocally bars conditions-of-confinement claims by Guantanamo detainees.”
“Because the full-frisk-search and visit-location policies with which Petitioners take issue both concern their conditions of confinement, the Court lacked jurisdiction to issue an order enjoining them.”
The appeal has resulted in great tension. Guantanamo leadership is maintaining protocol, requiring their “standard” genital searches before and after visits with attorneys or phone calls, while lawyers have filed a motion asking Judge Lamberth to issue an order requiring the government to follow his ruling, arguing that the government is acting in contempt of court. In the upcoming weeks, it will be interesting to see whether the appeal moves forward, or if for the first time, a federal court can restrict a military commander from implementing certain security procedures at a detention facility.
Alexandra Kutner, Research Fellow
Center for Policy and Research
In response to the continuing hunger strike, which has placed all but 15 detainees in single-cell confinement, the U.S. military has requested additional guards to be sent to Guantanamo. There are currently 1,831 troops and civilians assigned to the prison’s 166 captives. However, as Navy Capt. Robert Duran, the prison spokesman, stated, “When you go to a single cell, that takes more people.”
Since the hunger strike began, the captives, who once lived communally, are now confined to individual cells. This requires more work for the guards who deliver food through slots, and must now shackle each man in order to leave their cell for most activities, where they are again confined alone. This Saturday, 124 reinforcements from the Texas-based 591st Military Police Co. will arrive. As of Wednesday, 125 soldiers from the 613th MP Co., based out of Puerto Rico, have been deployed for 30 days of training in Fort Bliss, Texas. From there they will be sent to enter the regular rotation at Guantanamo Bay.
While the increased personnel would “come in handy” as the camps are in single-cell operations, Southcom spokesmanNavy Lt. Cmdr. Ron Flanders has stated that the additional units are being sent to GTMO partially in anticipation of the military commissions, and that Doral headquarters, which oversees the prison camps, might be “ramping up,” by setting a goal of reaching 2,000 personnel. Regardless of the reasoning, Guantanamo will have a large staffing increase in the impending weeks.
Alexandra Kutner, Research Fellow
Center for Policy and Research
After capturing the second Boston Marathon bombing suspect on Friday, the FBI decided to invoke the public safety exception to the Miranda requirement. This decision has generated much debate about the rights that should be afforded to terrorism suspects, whether a distinction should be drawn between foreign and domestic terrorist suspects, and who qualifies as which.
According to the ACLU, while authorities should be able to question Tsarnaev about imminent threats, using the public safety exception “to create the case against the suspect” would be “wholly inappropriate and unconstitutional.” In this they are absolutely correct. This exception was created not as an investigatory tool, but as an excuse for officers who, under pressing circumstances and in the heat of the moment, ask a question of a suspect, such as “where is the bomb?” or “which way did your accomplice run?” It was a failsafe to allow officers who ask questions with the sole purpose of ensuring public safety before read the suspect their rights to still be able to introduce the suspects responses in court. It was not intended to create a tactic by which police could intentionally delay mirandizing suspects.
Relatedly, several Republican politicians have argued that Tsarnaev should be officially labelled an “enemy combatant” in order to remove procedural hurdles to national security investigations. For example, as an enemy combatant, Tsarnaev would not be entitled to the a lawyer during interrogation. These lawmakers hope that by removing the Miranda warning and its attendant rights, the authorities may be better able to probe possible links to al Qaeda or other terrorist groups.
Of course, there is as yet no indication that there are any such links, and if there are, the 4th and 5th Amendments have generally not gotten in the way of finding out. For example, “Millennium Bomber”Ahmed Ressam gave up all of his contacts shortly after being caught and interrogated by the FBI under full Constitutional protection. In fact, facing 130 years in prison, he sang like a bird for 4 years while his sentencing was put on hold. (The uber-liberal Ninth Circuit has since ruled that Ressam’s 22-year sentence was too lenient, and placed an effective floor of 65 year on the sentence.)
But this has not stopped some Republican lawmakers from claiming the need to apply extraordinary measures to “foreign” terrorists. However, they seem to have hit a snag here, since Tsarnaev is a naturalized US citizen, not that they let this get in the way. In fact, Senator Lindsey Graham went so far as to advocate using racial and religious profiling to to determine if Constitutional protections should apply:
“You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that. But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda — I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable.”
So, according to Senator Graham. if they are Chechen and/or Muslim, screw their rights.
Discrimination aside, Sen. Graham seems to have forgotten that we don’t need to hold Tsarnaev for intelligence gathering purposes, since he’s already being held for criminal prosecution. This gives the FBI and other Federal investigators ample access to him for intelligence gathering purposes.
Indeed, holding Tsarnaev as an enemy combatant could jeopardize the government’s ability to try him, since Military Commissions have no jurisdiction over US citizens, and the latter trying him in civilian courts could trigger problems with speedy trial protections and admissibility of the evidence obtained without 4th and 5th Amendment protections.
For additional commentary on the Tsarnaev case, the following were collected by Fordham’s Center on National Security:
New York Times: “Mr. Graham’s reckless statement makes a mockery of the superb civilian police work that led to the suspect’s capture….Fortunately the Obama administration has ignored the posturing and declared that Mr. Tsarnaev, like all citizens and even alien terrorists captured on American soil, will be tried in the federal courts.”
Wall Street Journal: “The flap over reading [Tsarnaev] his Miranda rights is a largely irrelevant distraction. … The important security issue isn’t convicting Dzhokhar but finding out what he knows that might prevent a future attack or break up a terror network. This is where naming him an enemy combatant would be useful.”
New Yorker: Does the public exception to the Miranda “grant the police a limited ability to ask where a bomb is or which way an accomplice ran, and use the answers in court? Or is it a free forty-eight-hour questioning coupon the government gets for calling someone a terrorist?”
Paul W. Taylor, Senior Fellow
Center for Policy & Research
- Listening devices in the attorney-client meeting rooms are disguised as smoke detectors.
- The listening devices are so hypersensitive that they can detect even whispers between attorneys and their clients.
- Cameras in the attorney-client meeting rooms are so powerful that they can read attorneys’ handwritten notes and other confidential documents.
- The cameras can be operated secretly from a location outside of the room.
- The attorney-client meeting rooms turn out to have been the former CIA interrogation facility.
- Importantly, the CIA recording equipment was upgraded after the CIA left.
Earlier this month, on March 8, Sulaiman Abu Ghaith, Usama Bin Laden’s son-in-law, pleaded not guilty to a charge of conspiracy to kill Americans in a federal courthouse in Manhattan. Although his connections with the infamous 9/11 attacks are disputed, he is charged with publically praising the attacks and providing support to Al Qaeda for roughly 15 years. This will undoubtedly be one of the most high-profile terrorist-related trials to take place since the beginning of the War on Terror given the Abu Ghaith’s alleged ties with Bin Laden, but the circumstances surrounding it have already given rise to harsh criticism from politicians and the general public.
In particular, the main cause for concern is the curious decision to try Abu Ghaith in a federal court rather than a military commission trial at Guantanamo Bay, as is normally the course of action in terrorism-related cases. Lawmakers argue that this decision could have far-reaching implications not only for the Abu Ghaith trial, but for future terrorism-related trials as well.
But what are these implications? For starters, the Abu Ghaith trial begins a new chapter in a fight between President Obama’s administration and Congress. In 2009, President Obama announced that he would transfer five Guantanamo detainees to the United States to face criminal charges in federal court. Opponents of Obama’s plan argued that transferring suspected terrorists to U.S. soil would compromise national security and could lead to wrongful acquittals of guilty parties. Those in favor of the plan countered by pointing out the efficiency and fairness of the American justice system.
Congress ultimately responded by enacting legislation that froze the funds needed to make those transfers happen. The Obama administration has seemingly found a loophole in the Congressional act, which only covers Guantanamo detainees, by bringing suspected terrorists to the United States without first holding them at Guantanamo.
Beyond policy considerations, there are legal implications at the heart of the discussion. In regard to the Abu Ghaith trial, critics argue that Abu Ghaith will be granted rights under the Due Process clause of the Constitution during his trial in federal court that would not exist if he were tried at Guantanamo Bay. For instance, a military commission does not grant the right to a speedy trial that would be applicable in federal court. However, the Supreme Court has yet to voice its opinion on whether these rights would also be applicable in a military court, which leaves some uncertainty as to whether these concerns are legitimate.
The type of evidence allowed also differs between military commissions and federal courts. While both would allow coerced testimony obtained at the point of capture, military commissions typically allow hearsay evidence, which will be barred in federal court. This will be a significant difference, especially because the federal prosecutor will have a higher burden of proof than a military commission would require. However, this burden may not pose problem that critics cite, as federal courts have had a 91% conviction rate in terrorism-related cases since the 9/11 attacks.
Along those same lines, defendants in the federal court system may have greater access to witnesses than in military commissions. In military commissions, the defendant would have no right to subpoena witnesses. Also, although the judge in a military commission has the power to compel witnesses to appear, he does not have to do so depending on the circumstances. During the course of his trial, Abu Ghaith will have a better opportunity to call witnesses in support of his defense. Critics argue that these differences may lead to a wrongful acquittal of a suspected terrorist. However, the extra burden may not pose the problem that critics cite, as federal courts have had a 91% conviction rate in terrorism-related cases since the 9/11 attacks.
The human rights group Human Rights First points out that a trial at federal court will protect defendants from being convicted ex-post facto. In other words, defendants will not be convicted of crimes that were not articulated by the legislature at the time they were allegedly committed. Military commissions allow such convictions, meaning that a defendant may have no prior notice that he is committing a criminal act at the time of his actions.
Finally, the process of selecting the judge and jury are much different in federal court than in a military commission. In a military commission, the U.S. military handpicks the judge and selects the panel (the equivalent of a jury) from the enlisted military. In federal court, judges are appointed for life before hearing any cases and the jury is picked from the general public. Those in favor of federal court trials argue that these procedural steps will lead to a fairer trial for defendants.
As the son-in-law of Usama Bin Laden, Sulaiman Abu Ghaith’s trial will naturally catch the public’s eye. The publicity will only be heightened by the controversy surrounding the Obama administration’s decision to try Abu Ghaith in federal court rather than in a military commission, the type of trial Guantanamo Bay was created specifically for. With so many differences in procedural, evidential, and political matters, it will be interesting to see how the Abu Ghaith trial plays out.
Christopher Whitten, Research Fellow
Center for Policy & Research
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.