Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

7/25 Session: Secret Detention, Ticking Clocks, and Sitting Alone at the Defense Table

Nora Ellingsen
Thursday, July 28, 2016, 1:22 PM

Pre-trial hearings continue Monday morning at Guantanamo Bay in the case of the five men accused of plotting the 9/11 attacks.

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Pre-trial hearings continue Monday morning at Guantanamo Bay in the case of the five men accused of plotting the 9/11 attacks.

Judge Pohl calls the session to order. It seems all the defendants are present, with the exception of Walid Bin Attash. For the first two hours, the commission focuses on the question of whether Bin Attash has voluntarily waived his right to be present. He did sign a waiver of rights form in Arabic so there shouldn’t be an issue. But complicating things, he also gave the Major who handed him the form a one-and-a-half-page letter in Arabic. The commission needs to decide whether the form, in connection with the letter, constitutes a voluntary waiver, but unfortunately, they’re having issues translating the letter in a timely fashion.

Meanwhile, Bin Attash in a cell by the courtroom, but has advised that he will only come into the courtroom if forced by Pohl. His defense team takes the position that he has voluntarily waived his right, but Judge Pohl doesn’t want to make a ruling until he sees a translation of the letter. The defense team suggests they should move along, but Judge Pohl, perhaps tired from Bin Attash’s antics yesterday, declines: “Then he should stop writing me letters in Arabic that I’ve got to look at.”

The government finally asks that Bin Attash be ordered into the courtroom to address the issue in person. Around the same time, the letter is translated and Judge Pohl reads aloud the first sentence: “My absence in court and not sitting at the table beside the attorneys is not a waiver of my presence but is due to the problem between us and so no harm occurs to any of us.”

Bin Attash comes into the courtroom, although Judge Pohl has asked his attorneys to sit at a different table since, as we learned yesterday, Bin Attash has issues sitting at the same table as his lawyers. Judge Pohl tries to explain to him that his waiver has to be completely voluntary and not conditional, but Bin Attash complains that the commission is not addressing the problem between him and his attorney. Not surprisingly, Judge Pohl has very little patience for this argument: “Virtually every session we’ve done nothing but address your problem.”

The prosecution, worried that there will be a later claim that Bin Attash was forced into a waiver, proposes that Judge Pohl offer Bin Attash the option of sitting alone at the table with his defense team in the back of the courtroom. Everyone is onboard with this plan—Bin Attash agrees to stay and the commission goes on a ten-minute recess.

Returning from recess, the court approaches the issue of what constitutes legal mail, and what information, if any, the defense counsel should be able to turn over to third parties. The commission begins with the government’s motion to amend the written communication order.

The prosecutor reminds the commission that this issue has already been extensively argued. But the current issue, according to the government, is the defense’s “ever-expanding definition of what constitutes legal mail.” According to the defense, any material they receive from the accused is classified as legal mail. The prosecution is now arguing for a “bright-line rule” and asks that the commission prohibit defense counsel from sharing any of the accused’s mail with third parties, defined as anyone outside the defense team.

The defense reminds the commission that the government originally argued that the JTF-GTMO should be embedded in the classification review team, or that the defense team should be required to put information back through the JTF for review at a later time. They’ve now abandoned those positions and asked that all legal mail be banned from passage to third parties, but the defense addresses their previous arguments given that they are still under consideration by Judge Pohl. Currently the architecture is fairly simple—the defense team submits for classification review any information they receive from the defendant that they want to use publically, even if the information is likely unclassified. Once the information passes through the review process, the defense attorney makes a judgment call as to how he will use it, whether that be in a brief, to ask for expert assistance, etc.

Arguing against the government’s original position, the defense tells Judge Pohl that the JTF should not be “hard-wired” into the review process. The Original Classification Authorities, currently the ones reviewing the information, already have the authority to reach out to the JTF and ask their opinion as to whether or not the information should be classified.

The defense team goes on to reframe the entire question—not as a mail delivery process issue, but as an attorney advocacy issue. Within the new framework proposed by the prosecution, the defense argues they will not be able to advocate for their client. The defense team argues that they need to be able to release to third parties certain information from their client to fulfill their role as defense attorneys. For example, al Baluchi’s lawyer says he should be able to pass an essay his client wrote about the involvement of doctors in black sites along to third parties. He uses notes from this essay in presentations when trying to seek resources or support, and therefore the essay from his client becomes part of attorney speech, and a powerful advocacy tool.

The defense goes into detail about the different levels of review allowed by the JTF, but focuses a substantial amount of time on the “propaganda review.” Succinctly, the JTF can veto release of information that has propaganda value and would be detrimental to the interests of the United States in its armed conflict against al Qaeda and affiliated terrorist organizations. The government defines propaganda as material disseminated on one’s behalf that is designed to recruit individuals to join an organization or cause or act on behalf of that organization or cause. That definition, the defense points out, is also a great description of what a defense attorney does.

For quite some time the defense team focuses on the point that propaganda is in the eye of the beholder, and even the existence of Guantanamo itself can be considered propaganda. The government’s proposed regulations will guarantee that the defense will be unable to do its job. Before the court takes a brief recess, the defense argues:

“Among that defense function is to demonstrate the humanity of these men sitting at the far left of the courtroom. He has been unjustifiably characterized as inhuman and we know, because of the Senate report, a victim of torture. I have to seek resources. I have to seek assistance, and I have to advocate on his half.”

Returning from recess, Judge Pohl addresses the defense’s previous point about the ability to humanize their client. Judge Pohl asks the defense if they believe that anything that comes from their client is humanizing. The defense, in fact, does. The Judge then clarifies with the defense team that they consider anything coming from their client, regardless of the content, to be legal mail. Again, they answer in the affirmative.

The defense team again clarifies their position—outgoing legal mail, basically communication from the client to his attorney, goes through classification and handling review. After both reviews, assuming there are no limitations, the attorney uses his or her discretion to use the information as he or she sees fit. The defense argues it would be illogical to draw distinctions between passing information that their client orally conveyed to them to a third party—which they are allowed to do—and passing a third party a physical document from their client. Moreover, they talk to their clients all the time, pass this information, and nothing bad ever happens. There’s been no threat to national security, or any sort of incitement of violence. The government is not trying to protect anything, they argue. Instead, “this is the latest installment of the prosecutor's deliberate attempts to continue to control and to continue to stifle the defense efforts.”

Judge Pohl takes this argument into account and poses it to the prosecution team, asking them, “Who am I protecting?”

In response, the prosecution tries to differentiate between threats to national security and the government’s right to control the communications of someone who is part of a group that is trying to harm the United States. In the government’s view, the United States has an interest in holding someone in confinement conditions and limiting their communications with other members of al Qaeda.

With that, the commission takes a recess for lunch.

After lunch, Judge Pohl wants to discuss 251, the statute of limitations issue. 251 concerns the statute of limitations for a war crime in a military commission in a noncapital charge. In this case, those charges include attacking civilian objects and destruction of property in violation of the law of war. At the time of the 9/11 attacks, Article 43 (b) of the UCMJ established a five-year statute of limitation for noncapital crimes. While the clock was running, al Baluchi was being held in secret detention, and wasn’t produced by the government until five days after the statute of limitation ran out. Approximately one month later, in October 2006, the Military Commissions Act of 2006 abolished statue of limitations for the two noncapital offenses.

While the government reasons that there is no statute of limitations, the defense argues that because the statute of limitations has run, it cannot be resurrected. Quoting Judge Learned Hand, the defense describes the resurrection of expired statutes as, “unfair and dishonest,” particularly in a case “where the government missed the statute of limitations, not by accident, not by flight of the defendant, but by design. They intentionally chose secret detention over the American justice system, and they simply did so for too long.”

Now it’s the prosecution’s turn, and not surprisingly, they urge the military commission to deny the defense’s motion to dismiss the two noncapital charges. Their first argument is that the Military Commissions Act of 2009 governs offenses tried by military commission, and that Section 950t of that statute provides that these offenses are triable by military commission without any limitation as to time. The prosecution cites Stonger v. California, which held that a law enacted after the expiration of a previously applicable limitations period violates the ex post facto clause when it is applied to resurrect a previously time-barred prosecution. But in this case there was no previously time-barred prosecution because Article 43(b)(1) applies only to offenses that are tried by court-marshal. Furthermore, the limitations period in Title 18 United States Code Section 3282 does not apply because that provision applies only to federal courts.

The government declares that there is no statute of limitations on the violation of the law of war and Judge Pohl asks them for their source. The government pushes back that there is statute by Congress that imposes a statute of limitation, but also references customary international law in order to appease the judge. Digging into the prosecution’s motion, the defense points out that while this customary law may exist, the United States has been a routine objector:

“And so, Your Honor, because the United States has persistently objected in various ways over the years to the proposition that there is no statute of limitations applicable to war crimes, any argument the government would found on that principle based allegedly in customary international law should founder.”

Next the commission turns to 396, the issue of classification review. The defense brings us up to speed—the government has given a substantial amount of discovery to the defense, most of which was marked “classified pending classification review.” This information is presumed classified, but the government refuses to actually submit it for classification review. Furthermore, the government has no plans to and instead tells the defense it should review the information.

There are several reasons the government’s plan doesn’t make sense, according to the defense: the defense doesn’t have the resources that the government has, nor do they have access to the Original Classification Authorities (OCAs). Not to mention that the review process remains completely opaque to the defense team.

The government states that this issue was already argued extensively during a closed session. This issue can only really be resolved by describing the actual information, which cannot happen during the open session. Judge Pohl ultimately says that they’ll revisit this issue during Friday’s closed session.

Which now brings us to 424 – a motion asking the military commission to compel the ability of the defense to gather certain information, and to require the JTF to permit an inspection by the defense within limits that are set forth in the motion by the Special Rapporteur on Torture. In support of that request, the government had previously asked to call two witnesses via remote video teleconference – the Special Rapporteur on Torture, Juan Mendez and Alberto Mora, former General Counsel of the Navy. Unlike in civilian court, the government in this case acts in almost an administrative role to the court and gets an initial veto power. The defense argues that the government has been vetoing all of their witnesses and that they shouldn’t get the pre-witness veto for video teleconference witnesses that they get when seeking live testimony.

The prosecution decides to rest on their brief, which brings the court to 430, a proposed scheduling order for next year. The rest of the hearing focuses on this administrative issue. Judge Pohl discusses the appropriate amount of time to be in hearings throughout the year and how to balance the schedule with attorneys and staff flying in from across the country. Not to mention there’s only one courtroom at Guantanamo, which can create scheduling difficulties.

With that, Judge Pohl calls the commission in recess.

Nora Ellingsen is a third-year student at Harvard Law School. Prior to graduate school, she spent five years working for the FBI's Counterterrorism Division. She graduated cum laude from Northwestern University with a B.A. in Psychology and Political Science.

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