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The commission is called to order Thursday morning with all attorneys and the defendants accused of masterminding the 9/11 attacks in attendance. The morning session will be dedicated to hearing testimony from Gouled Hassan Dourad, a Somali detainee housed in Camp VII in Guantanamo Bay alongside the five accused. Gouled has been in detention at Guantanamo since 2006, before which he was in a CIA black site for two and a half years. He does not have a lawyer and has not been charged with any crime.
Defense Counsel James Harrington, representing Ramzi Binalshibh, has called Gouled to testify as to the veracity of Binalshibh’s complaints about ongoing mental torture and harassment by the guard force while he is housed in his jail cell. Through direct examination, Gouled reveals that he has resided in the same area of Camp VII as Binalshibh for the past year, during which time the two men have spoken frequently. Gouled agreed to testify because it appears Binalshibh is experiencing the same problems as he is, and this is the first and only time he has been able to express his complaints about the confinement conditions to the military commission. The problem Gouled describes is that he and many other detainees continuously are subjected to harassing noises, noxious smells, and vibrations inside their jail cells that appear to emanate from outside the cells. Specifically, he describes noises like hammering on the roof, other high-pitched noises, and stinky smells like chemicals. He testifies that these disturbances have occurred continuously for six years now, and amount to mental torture. Gouled recounts that he often complained to the camp and to the ICRC about these problems, but that nothing changed so he stopped complaining a few years ago.
Gouled testifies that defendants Binalshibh and Khalid Shaikh Mohammad have told him they experience the same problems, as does Abu Zubaydah, who is also held in the same block and tier as Gouled and the accused. According to Gouled, Abu Zubaydah often acts as a coordinator for the detainees and brings their problems to the camp commander, but has been unsuccessful at resolving this issue. In his experience, complaining to the guards or the camp commander about this type of harassment simply makes the problem worse. However, Gouled knows that Judge Pohl did issue an order to camp officials to stop any such harassment, and often hears Binalshibh yelling at the guards to follow the judge’s order.
David Nevin, counsel for Khalid Shaikh Mohammad, briefly examines Gouled to clarify statements Gouled attributed to Mohammad. Gouled further explains that he has had several conversations with Mohammad during the detainees’ recreational time, during which Mohammad mostly complained about bothersome noises, particularly banging on the roof of his cell, which Gouled also heard on one occasion.
On cross examination by trial counsel Edward Ryan, Gouled denies that he has ever heard Mohammad exclaim that Binalshibh is imagining all of these problems. Ryan then begins attempting to establish a foundation of bias in this witness. He inquires about Gouled having a jihadi and Al Qaeda nickname. He presses him on the details of the problems he is experiencing, such as where the vibrations come from, who is making them, how they are made, who he complained to, and what they said in response. Ryan proffers that Binalshibh complains the most and is loud and disruptive in his complaints, so much so that other detainees have asked to be moved away from his cell and that Zubaydah has complained about Binalshibh’s antics and even apologized to the guards for Binalshibh’s behavior. Gouled denies knowing about or disagrees with all of these statements.
Ryan clarifies that the only complaints Gouled has made in the past year about these issues has been on behalf of Binalshibh, suggesting that his recent complaints were more an effort to quiet Binalshibh than to help him. Gouled denies this characterization and explains to Ryan that, even though he has given up on complaining for himself, he yells to the guards with Binalshibh because Binalshibh has a lawyer so the guards may pay attention to his complaints.
Ryan next raises an incident involving an ice-pack where Gouled complained and cursed at the guards, but Gouled denies recalling the event. Ryan brings up an incident in which Gouled spit at the guards and threw his cereal at them, which Gouled admits to. Ryan continues along this line by asking about the many times Gouled has been forcibly extracted from his cell for creating disturbances. Harrington objects multiple times to this line of questioning, arguing that Gouled’s problems with the guard force is irrelevant to his testimony about Binalshibh’s treatment. But Judge Pohl disagrees and finds that Gouled’s relationship with the guard force is relevant to whether his testimony about Binalshibh’s treatment by the guard force is biased.
Finally, seeking to establish ultimate bias, Ryan asks Gouled whether America is his enemy. Gouled responds that America is his friend, because Americans give him food in Guantanamo even as they shake him. Ryan asks if he trained at a camp in Afghanistan, and accuses Gouled of lying when he denies it. Ryan asks about and Gouled denies having observed a military base in Djibouti for purposes of planting a truck suicide bomb there. Lastly, Ryan asks Gouled if his version of Islamic law allows him to lie to infidels, and suggests that Gouled has lied many times to the tribunal in his testimony. Gouled answers he cannot lie and that he is not lying now.
The commission breaks for a 15 minute recess.
When we return, Judge Pohl calls the commission to order and directs the lawyers’ attention back to defense motions 321 and 329, which were discussed yesterday, and involve the accused’s access to family visits and simultaneous telephonic communication with family members. The various defense teams have nothing more to add to defense counsel James Connell’s argument from yesterday, except that defense counsel Michael Schwartz points out that there is a remaining procedural issue of first impression that an attachment to AE 321 is an ICRC report that the commission decided is not classified but sealed it anyways and now must decide if the defense may discuss the document in open court. The parties will confer and litigate the issue if necessary before Judge Pohl makes a decision.
On to 335, a defense request for the production of discovery records from the ICRC and the authority to argue certain facts from those reports in open court, largely dealing with conditions of confinement at Guantanamo Bay and the detainees’ treatment before they arrived at Guantanamo. Trial counsel does not oppose the base motion, and will ensure the documents are provided to the commission for in camera review to then be handed over to the defense.
The last motion to argue is 377, brought by Nevin, requesting the commission order the delivery of a letter written by KSM to the President of the United States. Nevin argues that the right to communicate with public officials to seek redress for a wrongful incarceration or wrongful conditions of confinement is a right afforded to all prisoners by the Bureau of Prison Regulations, and a right which the United States Supreme Court has consistently recognized as a part and parcel of an accused’s right to be heard. Nevin reports that Mohammad attempted to use the non-legal mail process to send this letter but it was rejected for being longer than two pages. After this, Nevin approached a number of different officials at Guantanamo to seek delivery of the letter, but each official refused. Eventually, the letter was accepted and went through classification review, where it was determined unclassified. So again Mohammad attempted to send it through the non-legal mail system but again it was rejected.
Ultimately, this motion only seeks an order permitting Mohammad to send a letter to the President at the White House, and no other dissemination is being requested for approval. However, Nevin points out that this simple request does raise a host of other, more complicated issues about the classification process, the government’s review of privileged communications, the government’s content review for propaganda, and the detainee’s abilities to contact the outside world.
Trial counsel Ryan counters that this letter is not a petition for redress, but rather a 19-page stream of insults to the President. He defends the actions of the various entities at Guantanamo that rejected the sending of this letter, characterizing the letter as propaganda, which is not permitted to leave Guantanamo, and reminding the commission that Guantanamo Bay Detention Center is not part of the BOP. Ryan argues the military commission should cabin its involvement in determining the conditions for detention to issues implicating the trial rights of the accused under the Military Commissions Act only.
After a discussion about the proper way to request funds for expert consultants from the convening authority and the military commission, the commission recesses until the afternoon.
The commission is called to order with all lawyers and the accused present. The plan is to call Abu Zubaydah to the stand to give further testimony in support of Binalshibh’s complaints about his treatment in confinement. Zubaydah, however, is represented by counsel, who informs the commission that he will object if trial counsel probes Zubaydah on his prior alleged illegal activities to establish bias. If a witness claims the Fifth Amendment privilege on cross-examination, usually the witness’s entire testimony is stricken. There is a question, therefore, whether Judge Pohl could offer Zubaydah immunity on those questions tending to show bias, so he could answer without incriminating himself and his direct testimony would stand. Harrington suggests the commission defer hearing from Zubaydah until the next hearing, when all counsel can brief the commission on how to proceed with this witness.
With this, the afternoon public session adjourns until the next morning.