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

Last Week in Military Commissions

Russell Spivak
Friday, September 1, 2017, 12:00 PM

The military commissions were busy last week in the case against Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi (referred to as Aziz Ali), and Mustafa Ahmad al Hawsawi, commonly known as the 9/11 Five. Over the past few months, Lawfare has worked with a new format, reviewing the entirety of the substantive issues addressed in the previous week’s open sessions. This week, only the hearings Monday and Thursday were open; the hearings on Tuesday and Wednesday involved classified material and were closed to the public.

Published by The Lawfare Institute
in Cooperation With

The military commissions were busy last week in the case against Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi (referred to as Aziz Ali), and Mustafa Ahmad al Hawsawi, commonly known as the 9/11 Five. Over the past few months, Lawfare has worked with a new format, reviewing the entirety of the substantive issues addressed in the previous week’s open sessions. This week, only the hearings Monday and Thursday were open; the hearings on Tuesday and Wednesday involved classified material and were closed to the public.

As is customary, Judge Pohl began the week’s proceedings by reading the defendants their rights. After brief discussions of logistical problems—power outages for lawyers’ trailers—the parties went to work on the substantive issues.

502 Issues

Both the government and Hawsawi asked Monday morning to litigate a feature of Hawsawi’s personal jurisdiction defenses. Specifically, the government is seeking to introduce statements Hawsawi made by the defendant to the FBI and to defense department personnel in his Combatant Status Review Tribunal (CSRT) that the government believes aids its case. Although Hawsawi isn’t filing a motion to suppress just yet—and is reserving the right to do so later—Maj. Joseph Wilkinson (for Hawsawi) asked Judge Phol to keep the statements under seal in the interim. Hawsawi’s team essentially flipped the typical trial order of motions to suppress before litigating the jurisdictional question due to the delays in the discovery process, seeking to move forward on the trial. Additionally, the defense stipulated to the foundation of these statements so as to prevent the need to call relevant FBI agents or military personnel as witnesses to authenticate any transcripts, again in hopes of expediting the trial.

Mr. Clay Trivett of the prosecution team argued against these motions, suggesting that the motions against the statements are “a subject matter jurisdiction motion masquerading as a personal jurisdiction motion” because they go to the issue of whether hostilities existed. This, Trivett argued, would bring the court back to the Nashiri case, which held that the prosecution may prove the existence of hostilities as an element of the crime at trial rather than in pre-trial motions. Generally, there was uncertainty as to whether the motion was therefore a legal or factual one.

On Monday afternoon, things circled back to the 502 issue, in which al-Baluchi objected to proceeding with Hawsawi’s motion to move forward.

Security Review Challenges and Compartmentalization Generally

Mr. Aziz Ali’s legal team was forced to explain to Judge Pohl that it was unable to file much of its response because of classification issues, as the defenses needed to be submitted for review. Ultimately, Mr. James Connell, for Ali, are seeking to establish that the FBI and Combatant Status Review Tribunal statements were not made voluntarily. The motions made in defense of this position need security clearance review, which stopped the 502 issue from proceeding further at this point. There was extensive discussion of the idea of suppressing these statements as well as how—and when—motions to suppress would be filed on voluntariness grounds, as well as subsequent motions to attack the statements’ reliability, militating against their weight at trial.

Ultimately, classification issues dominated Monday’s morning and afternoon hearings: Judge Pohl and Trivett discussed at length the delays caused by antiquated clearance issues, including how many of the files needed to be reviewed featured antiquated markings. The two had an extended colloquy on whether the government knew what each marking meant and whether the classifications were still active. These processes create extensive delays both before and during trial: As the judge noted, “Some of the frustration from managing trial counsel perspective on this is that we’re walled off from whatever they're putting through the review. Oftentimes we don't hear what's going in the review until we’re in court.” Thereafter, Judge Pohl had a tough time even getting on the same page with Connell regarding what, precisely, was causing delay in the review process.

The Monday afternoon hearings also featured discussions on these topics, as Mr. Walter Ruiz argued that the defense had met its burden and that the government had not. What’s more, Judge Pohl discussed how the government has changed the classification of many of these documents throughout the course of the trial, creating further confusion.

Motion 336 Cleanup

The commission also finalized its ruling on the government’s 336 motion regarding the parties Detainee Information Management System, or DIMS, file. After the parties discussed who would be entitled to what information, it was decided that each party would be entitled to its DIMS records after they had gone through the necessary redaction.

Motion 511

Mr. Hawsawi’s team also filed a 511 motion to suppress a transcript from an earlier commissions hearing that, in Ruiz’s words, the prosecution “believe[s] it to be an incriminating confession.” That transcript includes statements the five detainees made together, particularly a joint confession of the actions and a desire to plea, marked by all five participants multiple times. Ed Ryan for the government argued against Ruiz’s motion, suggesting that Hawsawi’s motions required constitutional or privilege violations but that none were present. More, Ryan went back to military commissions Rule 304, which permits a defendant’s statements to be admitted “only if the judge finds that the totality of the circumstances renders the statement reliable and possessing sufficient probative value, and the statement was voluntarily given.” Ryan then went into an extended discussion of what the transcript is and the events that led to the hearing itself. Ryan then stated that the statement in question is to be admitted against all five defendants and was not constitutionally doubtful; it was made in front of Judge Kohlmann when the defendants were representing themselves pro se under Faretta v. California, which permits defendants to represent themselves so long as they appreciate the ramifications of their actions.

Ruiz, counsel to Hawsawi, objected to the statement on many different grounds. His first argument centered on the signatures: He argued that each participant did not technically sign it, making it inadmissible; the government pointed to collective language and collective strategy—in the form of plea deals signed in a specific sequence to evince a coordinated plan—to overcome that. Ruiz also challenged whether the entirety of the statement was made voluntarily as well as some specifics, particularly that the transcript does not explicitly denote that Hawsawi was in the room when the other detainees decided to jointly confess and, he further argued, that there is no affirmative indication Hawsawi made or adopted the statements.

Next, there were questions as to whether the statements could be admitted under hearsay rules. Ruiz argued that the government’s positions that they should come in as statements against interest raised a problem under Bruton, a case in which the Supreme Court held that the admission of one party’s confession in a joint trial violated the other party’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.

The government vehemently disagreed, citing myriad points in the record to rebut Ruiz’s statements. The prosecution’s Ed Ryan pointed out that the documents were made public by Judge Henley years ago, arguing that the court should not withhold the documents now from the public. Ruiz, however, pushed for the protective order nonetheless so as to bar the government from making further allegedly prejudicial statements relying on the past confessions.

The other issue permeating these discussions was the role of counsel. At multiple times throughout the proceedings, parties have switched back and forth between being defended by counsel and appearing pro se. This question has been brought to bear in two ways. First, as it relates to voluntariness: Ruiz marshals United States v. Bertelson, 3 M.J. 314 (C.M.A. 1977), to analogize the defendant’s statement to be a confessional stipulation that, after hearing, Judge Henley failed to make the necessary inquiry as to whether the stipulation was made knowingly. Second, the parties’ representation was important to specific prior rulings from Judge Henley: Many of the former military judge’s rulings pertained to only the pro se litigants, meaning the timelines as to when defendants were and were not advocating pro se are important. The objection was not ruled on specifically.

Motion 133

Maj. Wareham (on behalf of Ammar al-Baluchi) had earlier filed a “motion to permanently and verifiably disable any audio monitoring that may exist in attorney-client meeting spaces.” Chief Prosecutor Gen. Mark Martins has explicitly stated in previous hearings that the five detainees were not being recorded in their meetings with attorneys, but those—and the designated meeting rooms—were not at issue: Maj. Wareham sought to prohibit monitoring in other areas in the camps where clients and attorneys could meet, such as in Echo II, the name of the camp where the detainees are held within Guantanamo. David Nevin (on behalf of Khalid Sheikh Mohammed) and Mr. Jim Harrington (on behalf of Ramzi bin al-Shibh) reiterated these overtures in the Thursday afternoon hearings. Ultimately, the court did not rule on the motion but put the motion in abeyance until the defense attorneys had the opportunity to inspect the meeting spaces in question.

Motions 425 and 052 – The Black Site

Thursday afternoon’s hearing largely revolved around Motion 425. Appellate Exhibit 80G was an order from December 2013 to preserve the condition of the black site as evidence. Motion 052EE, on the other hand, issued in June 2014, gave permission to “destruct[] or decommission[]” the black site. As it turns out, when Judge Pohl issued the later order, he intended for defense counsels to receive notice of the potential changes; Nevin argued that the judge improperly issued the order because had not seen the black site itself and permitted it to be altered materially relying on the adequacy of a video representation of the site. The judge argued that the typical nature of these proceedings suggest that defense counsel would have been notified very soon after any changes were proposed to the sites. Nevin argued that the government had openly admitted to being able to deconstruct these facilities very quickly, implying that the judge’s lack of explicitly mandating notice fell short. Nevin asked to voir dire the judge in a closed session regarding the information he possessed at the time he gave the order to permit the destruction and the issue of notice. Defense lawyers Connell and Harrington then took up the same line of questioning, such as the time the judge issued the orders, the steps he had taken before approving the substitution and his reason for thinking the substitution was proper. Ultimately, Judge Pohl decided to continue the discussion in a closed hearing.

478 Motion – Trial Scheduling Order and Resources

It comes as no surprise to anyone tracking these commission cases that trial dates have yet to be set. Part of that has to do with the facilities at Guantanamo. Although it would be valuable to expediting the trials, Ryan of the prosecution admitted that there was “no political will to build an additional courtroom” within the higher levels of the Defense Department. What’s more, the defense counsels said they need additional trailers—any edifice, in actuality—that would permit them to work as needed. The latter should be completed by November 2018, and once that happens, “all of the necessary parties, will be prepared to do more than one case at a time. And that would include one trial going forward, assuming a four-days-a-week schedule, with hearings of another case coming in on a three-days-a-week schedule.”

In light of previous discussions, however, the government inquired about the possibility of holding certain classified hearings in Washington, D.C. The detainees would not be permitted to be present in a classified proceeding anyway, so substantial resources could be saved over having to fly down to Guantanamo for want of a secure-facility courtroom. The prosecution felt it possible; Judge Pohl asked Ryan to inspect the facility firsthand instead of relying on an inquiry to assess its viability. Another aspect of this question involves support logistics, including guard troops and housing for those participating in the trial during the hearings. Connell made particular note of how insufficient resources have hindered trial in myriad less obvious ways: For example, he pointed to the fact that court linguists and stenographers didn’t have lodging and resources, which delayed hearings. He pointed to his team’s discovery, noting that not all of his legal staff had seating, let alone a computer necessary to pore over the discovery materials. Even an MRI that had been scheduled for a detainee two years ago hasn’t been performed. As Judge Pohl said, “The footprint of this is too big.” Connell then framed the resource constraints as they relate to trial schedules, read previous scheduling plans—which had contemplated a trial by June 2013—to hammer home his point that the government’s new trial schedule proposal was not “square with the reality of what's happening here” because no party has the resources to meet the proposal.

At the end of the day, without concrete updates on resources to mollify any of these concerns, nothing permanent was decided, although Judge Pohl agreed to tour the facilities to assess things for himself.

Motion 444

The final issue discussed Thursday was the motion 444 to “compel threat assessment information of Mr. al Hawsawi.” Earlier in this week’s hearings, the government said it did not have any additional information, but, according to Mr. Sean Gleason, on behalf of Hawsawi, a FOIA request proved otherwise. Citing to In Re: Sealed Case, Gleason argued that Hawsawi has demonstrated each of the five required factors—relevance, availability of other evidence, seriousness of the litigation, the government’s role, and no possibility of negative precedent setting—to prove he needs this additional threat-assessment information to mount his defense. Ultimately, the nature of the threat assessments mandated continued discussion in a closed hearing.

Bin al-Shibh’s Conditions

Ramzi bin al-Shibh’s difficulties in his cell were also discussed Monday morning. His legal team brought up concerns of noise and distractions, with the result that he was not given relief but, rather, penalized. Mr. Jim Harrington of bin al-Shibh’s legal team made extended overtures to Judge Pohl to get the defendant “into a smooth situation so that we can continue in this case trying the case rather than coming before the court time after time after time asking for” better conditions. The government requested additional time to respond.

Al-Hawsawi’s Thursday Attendance

Thursday morning’s proceedings began without al-Hawsawi. In response, Brig. Gen. Mark Martins opened the hearing by conducting a direct examination of an unnamed Army captain who verified that he had read Hawsawi his waiver regarding his attendance in English and Arabic. Ruiz, in cross-examination, confirmed this. But there was a deeper principle at issue: As Ruiz put it, Hawsawi chose not to attend to protest the method of transportation to and from his cell, which he says has given him pain and nausea. Therefore, Ruiz argued, Hawsawi’s waiver was not voluntary. Ultimately, it was decided that, to ensure there are no voluntariness violations, Hawsawi would be brought to the courtroom. Once he was back into court, Judge Pohl took a moment to address all the defendants, stating that if the voluntariness of one’s waiver to attend is ever suspect, they will be ordered to appear immediately and the option—which the defendants initially argued for—to decline to attend would be forfeited.

Thursday midday, Hawsawi stood in the middle of the hearing to try to speak about his condition, which prompted further arguments between Ruiz and Judge Pohl regarding Hawsawi’s rights.

A Note on Deaths

At the beginning of the week’s hearings, the defense recognized the death of a mitigation expert for the Mohammad team. Ryan noted that this was the right thing to do but took it upon himself to offer what he considered a first reflection, “bring[ing] to the commission’s attention” the recent deaths of those directly affected by the Sept. 11, including additional firefighters. In Ryan’s words:

I bring this to everyone's attention for the simple reason that, as valid and as proper as it was to consider the passing of a member of a defense team, I also want to put forth again that there are an awful lot of people out there that are relying on this U.S. justice system to bring about hard answers to the attacks of September 11.

Russell Spivak is a graduate of Harvard Law School and the Massachusetts Institute of Technology. He has previously interned in the Office of the Chief Prosecutor in the Office of Military Commissions.

Subscribe to Lawfare