This week, Homeland Security Today Executive Editor Kristina Tanasichuk is at Naval Station Guantanamo Bay to cover military commission pre-trial proceedings for United States v. Khalid Shaikh Mohammad et al. Check back here for her updated reports from GTMO.
Jan. 27, 2019
It’s a fascinating process. The U.S. brings a plane full of legal teams (prosecution and defense, mixed civilian and military), media, and NGOs (non-governmental organizations) down to the island on a regular basis. The prosecution stopped talking to the press several in November 2017 but the defense did not. The hearing is actually on behalf of the five major terrorists implicated in the 9/11 attacks including (“Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarek Bin ‘Attash, Ali Abdul Aziz Ali, Ramzi Bin al Shibh, and Mustafa Ahmed Adam al Hawsawi are charged jointly, in connection with their alleged roles in the September 11, 2001, attacks against the United States. They are charged with committing the following offenses: conspiracy; attacking civilians; intentionally causing serious bodily injury; murder in violation of the law of war; hijacking or hazarding a vessel or aircraft; and terrorism. All details are at www.mc.mil)
They have also apparently become quite “American” and speak English, read all of our news and are allowed to cook and prepare food with spices, etc., provided by the base. Defense meetings sometimes take place with food prepared by the accused and enjoyed over talk of the case, American politics and converting to Islam.
Jan. 28, 2019
So today’s proceedings had nothing to do with 9/11. When I say that, I mean that we heard attorneys from the defense make statements all morning around what they call the intimidation of their teams by investigations of team members — present and past. One of the lead attorneys said he has been investigated constantly since 2009 and has had to hire attorneys to defend himself.
It seems that the FBI or other agencies have questioned, “roughly surveilled” — meaning the person knows they’re being followed or watched — and investigated many of the legal teams directed by the United States to defend the accused. Defense attorneys argue that this has had a chilling effect on their aggressive defense of their clients and has scared members — particularly military members — about the impact the work will have on their future career. As the defense would tell it, there has been some pretty hinky stuff going on — listening devices in people’s houses, computers that were off mysteriously being on every day, devices found in wall sockets, etc., that lead all of them to believe there are ongoing investigations on the members of the defense.
The judge has said “no.” No investigations of current team members are happening but the evidence presented was “ex parte,” meaning that the defense was not present for the presentation of the information.
So this morning was: We don’t trust your answer, Military Commission, and we have a lot of reasons not to.
Observations on the process: The accused. I guess this was the part that was really fascinating and I have to admit I was nervous to even really set eyes on them. They are brought in with a number of guards, some with gloves and carrying their belongings: prayer rugs, beads, whatever. The courtroom is laid out with the defense on the left and the prosecution on the right. The terrorists sit on the farthest end of the left tables all in a row.
Khalid Shaikh Mohammad looks nothing like that photo. He is quite small, and literally has a Fanta orange-colored beard. No idea.
The others, too, are much smaller than you’d expect and all arrived in different garb making statements — not all of them, I know — with what they wear. They interact with their legal teams, smile, joke, and challenge the judge. Today, the judge described their rights to attend their hearing and participate in it and that they have a right to waive attending in some cases, but that they may also be compelled to attend. They were all required to say they understood. Ramzi bin al Shibh answered that he would not answer because the judge was not qualified to preside over the hearing.
We take breaks so they can pray, and will not resume the hearing until nearly 4 p.m. because it would interfere with prayer. One of the lawyers wears an abaya out of respect to her client — who will not talk to her. (We are not allowed any kind of electronic device, no photos or even doodling — all prohibited under the Geneva convention as it’s “prohibited to subject POWs to public curiosity.”) A number of the women on the defense teams wear headscarves although the female military members cannot because they are in uniform.
Mustafa al-Hawsawi left the proceedings after the first break. He was held, as were all of them, in CIA black sites for three years (2003-06) and tortured extensively. It is uncomfortable for him to sit for long periods because of damage to his rectum: according to the defense, from torture; according to the CIA, from forced feeding.
***
Court is wrapped up for the day — but not without an outburst from Walid bin Attash. So if you remember, this morning Ramzi bin al Shibh would not recognize the judge and said so openly. The judge took the challenge and said that he would consider the defiance as a threat to safety and that he could not then expect bin al Shibh to comply with any order if he did not recognize the judge. Bin al Shibh’s attorney argued that he always complied and that there was no reasons to doubt that he would in the future. The judge tabled it for this afternoon.
The backstory (This really is like a little GITMO soap opera!): So the judge is new. Justice Marine Col. Keith A. Parrella was assigned after Army Col. James L. Pohl retired in the fall. It turns out Parrella worked as a Marine fellow as an on-loan prosecutor at the Justice Department’s National Security Division Counterterrorism Section. Attorneys for the defense have raised this as an ethical conflict of interest because four of the nine prosecutors currently on the case work for the same unit.
The defense filed a complaint, to which the judge said, “It’s not an issue.” The defense then filed a motion in a court in Washington, D.C., and they are going to hear the motion. SO — the defense has essentially said that the judge has too much of a conflict and should recuse himself. The judge says he can be impartial.
So THAT’s the reason for the defiance today. When court reconvened the judge and bin al Shibh’s attorney decided to leave it at, bin al Shibh won’t recant, but will recognize the authority of the judge/court.
Walid bin Attash yelled out, “The judge is escalating the issue for no reason. I am taking this personally. I am being attacked.” [really not a party to the issue because he agreed that he understood his rights this morning]
The judge: “This issue does not concern you and you should not say anything more about it.”
Walid bin Attash: “OK.”
A little about Attash from Wikipedia: American prosecutors at the Guantanamo military commissions allege that he helped in the preparation of the 1998 East Africa Embassy bombings and the USS Cole bombing and acted as a bodyguard to Osama bin Laden, gaining himself the reputation of an “errand boy”. He is formally charged with selecting and helping to train several of the hijackers of the September 11 attacks. Attash was given victim status in Poland for his alleged torture by Americans in a CIA black site on Polish soil.
Court is adjourned. Good night for today!
Jan. 29, 2019
None of the defendants came to court today. Apparently they really only come on Mondays.
So this is just an interesting thing to make you go, hmm… lots of protocol.
At the hearing a Navy captain is called to the stand and is questioned by the commission. He submits three-page documents, signed by each defendant and swears that each waived their right to attend, and that they signed the waiver.
They do not have to attend, but they must affirmatively confirm that they have willingly decided not to do so.
***
So some of the defense will no longer participate in the hearings. If you read my longer, kind of boring post yesterday about the arguments before the court, today they came to a head. We were only in court for about 20 minutes and the issue today was over testimony of an interpreter who worked for the CIA. Four years ago, in a hearing before the commission, Ramzi bin al Shibh’s translator was ill. So, the commission selected another interpreter from the pool of interpreters. Bin al Shibh immediately stopped the proceedings because he recognized the interpreter from his time being tortured in a CIA black site. The Pentagon confirmed that the interpreter did indeed work for them. That interpreter is supposed to come testify tomorrow and the commission has ruled it will be a closed session. The defense has argued that this should be a session open to the public — with the classified material bifurcated. The commission said no. Today defense argued again for the public to have access and, at a minimum, that the defendants be present during the questioning. Defense argued that the default of the first and sixth amendments is to make public — in a public trial — as much as possible with the burden being on the government as to why the questioning should be “classified” or closed. The judge offered a few alternatives, a redacted transcript, deposition, and the defense stood firm for public testimony.
This has been going on for four years.
The defense wants to know: What was the interpreter doing for the CIA?
How did he get to the commission? Did he have an obligation to tell people that he had worked for the CIA (had a non-disclosure agreement with the CIA)? The judge has ruled that this will be a closed session. The defense wants it open. This is important to them because the defense teams have mounting evidence that the discussions, consultations, and interactions with their clients have been compromised by listening devices, moles, investigations and other techniques that are purposefully oriented to threaten and scare the defense teams.
Please remember: We only hear from the defense. The prosecution stopped talking to the press late last year. The defense has come and briefed us a number of times and the attorneys join us to discuss the hearings afterward.
Two of the defense teams also declared that they would not participate any longer because of the feeling that they and their teams are under “investigation” and that has hindered their robust defense of their clients. The judge has stated that there are no active investigations going on against any member of the defense teams.
***
And that’s the end of GITMO.
Apparently the judge is suffering from a detached retina and was last night going to be medivaced from the island. And we will sit here, most likely, until Saturday and enjoy the island with no further proceedings. See y’all soon!
Jan. 30, 2019
The fruits of the poisonous tree.
Although my observations of real-time GITMO may be over I would love to chat with all of you more on your observations of some of the real challenges of this trial. First and foremost, of course, is the torture. Part of why this is so procedurally elaborate is to “make up” for the fact that these people (no matter how you feel about them) were tortured in CIA custody for numerous years.
Before freaking out about “torture” think back to right after 9/11 when we as a nation had no idea of further attacks, what the “grand plan” was, our surprise and our helplessness. Part of our answer was to try and figure out what was going on, who our enemies were and if there were other planned attacks. We are still working on this every day — figuring out who is planning what, from where, to attack what.
The torture is described and catalogued quite extensively. You can read it and judge for yourself.
After the CIA portion of interrogation, the suspects were turned over to the FBI and interrogated again. The facts and statements under consideration for the trial are from the FBI interrogations, not the CIA. The defense says they cannot be separated because the program, the Detention and Interrogation Program, was designed to establish total control over the detainees. They argue that this did not end when they were handed over to the FBI.
So the question really becomes, can anything they said under torture be admitted? Should it? If it isn’t, what’s the case? According to retired Air Force Col. Morris Davis, who worked the case from 2005-07, the terrorists could be convicted on open-source information — statements they made, speeches and interactions.
I don’t know the rules of evidence around allowing evidence from torture into a trial. I asked that of General Baker, the defense team and others and didn’t really get a straight answer. The judge has ruled that the answers from the FBI interrogations are admissible. The defense argues that all of it is fruit from a poisoned tree.
Regardless of the answer, we have a process going on down here at GITMO that has cost the U.S. taxpayers $4.8 billion since it opened in 2002, and an average of $454 million every year for the past five years (that figure is from the ACLU). According to Carol Rosenberg from the Miami Herald, an expert on Guantanamo, “The Trump administration has more than $200 million in new construction teed up for Guantánamo this year and next, combining new funding in the $1.3 trillion spending bill and existing projects.”
The defense said that they welcome Trump’s positive movement on GITMO because they have now seen “planning” happening for the future, AND leadership here is taking into account the declining health of the aging accused.
