Thursday at the Military Commissions: The 9/11 Case

After the ups and downs of this week's hearings in the military commissions case of United States v. Khalid Sheikh Mohammed et al., Thursday provided a much more straightforward series of motions brought on behalf of one accused 9/11 plotter only, Mustafa Al-Hawsawi. I overview some of Thursday's highlights, including courtroom discussion Hawsawi's motions, below. Hawsawi's Learned Counsel Walter Ruiz rested on the briefs for the day's first two motions, AE 192 and 196, to disqualify individuals due to unlawful influence by the government. Judge Pohl pointed out that one of the individuals in question no longer works at the military commission, so the relief requested by the defense is moot in that case; however, attorneys for a number of the accused asked that the judge nevertheless issue a finding of fact on the motion as part of the defense's broader effort to show systematic unlawful influence by the government. Ruiz and company's next item, AE 332, was an emergency medical motion seeking access to Hawsawi's medical records and doctors to ensure that the accused is receiving appropriate medical care for his chronic health problems, which include blood in his urine. The defense brought this motion because it appears that communications have broken down with the Staff Judge Advocate, and counsel's attempts to discuss Hawsawi's medical condition with his doctors have gone unanswered since March 2014. The witnesses requested by the defense include the current senior medical officer for Hawsawi and any treating physicians and specialists, as well as the Staff Judge Advocate, the camp commander, and the assistant watch commander. In the event that the defense is not granted personal contact with Hawsawi's doctors, another motion, AE 340, asks that the defense have an opportunity to depose the doctors "to preserve the testimony of these individuals" for the military commission. On AE 332, the prosecution argued that the motion was a response to a specific incident on December 7, 2014 in which the accused refused to enter his cell and so was forced to do so. After the incident, Hawsawi turned down medical treatment. Further, the government has provided the defense with Hawsawi's medical records on a rolling basis as they are unclassified, currently covering from 2006 until August 2014. They cannot turn over classified medical records to the defense until the defense signs a memorandum of understanding that has been the source of much debate before this commission. Nor are depositions necessary, as the medical records provide a complete factual record of Hawsawi's health care and medical condition and the defense presented no evidence that these doctors would be unavailable at trial. The defense protested that the medical issues at the heart of AE 332 were exacerbated by, but not caused by, the incident on December 7, and it is not entirely clear what happened on that date. To clear things up, the defense presented AE 333, seeking additional records to verify exactly what transpired. The government has so far provided "an unsworn, three-page letter from an unidentified government agent who was alleged to have been the OIC of the camp who says that Mr. Hawsawi began to kick, thrash, and bite at the guards as he threw himself to the ground, which was the cause of his injuries." The defense would like any relevant reports or witness statements of the incident, any medial reports for the accused and for the guard who Hawsawi allegedly bit, personnel and service records for the guards involved in the incident, and any video, audio, or photographic evidence of the incident. The government agreed to provide the defense with the relevant medical records and a more detailed "serious incident report." However, the prosecutor does not believe it necessary to turn over service records of the soldiers involved. Nor was there a video of the incident because only forcible extractions are recorded. Because this incident was caused by the accused upon insertion into his cell, there was no video. The morning session wrapped up with a defense motion—AE 303—asking that the government move Hawsawi to a detention facility that complies with international law standards for detention under the Geneva Conventions. These include meaningful contact with family, communications with counsel, practice of religion, and other practices documented in a sealed report by the International Committee of the Red Cross. The prosecution explained that two different Congresses and two different Presidents have decided that those classified as alien unlawful enemy belligerents—including the accused—"are not entitled to all of the privileges that a prisoner of war under the Geneva Conventions would be." The defense had previously challenged Hawsawi's status as an alien unlawful enemy belligerent and lost. The final motion of the day—AE 214 and an accompanying discovery request, AE 214A—asked that Hawsawi, a Saudi national, be allowed to communicate with representatives of Saudi Arabia pursuant to the Vienna Convention on Consular Relations ("VCCR"). During the lunch break after the morning session, the government and defense stipulated "that the government of Saudi Arabia had, in fact, on multiple occasions requested to meet with" the accused, but the government would not provide the documents proving that because of the memorandum of understanding issue. Chief Prosecutor Brig. Gen. Mark Martins explained that the DC Circuit Court of Appeals found that the VCCR does not provide an individual right of action in Allaithi v. Rumsfeld, a case involving another Guantanamo detainee. If the Saudi government is interested in this case, it can read the commission transcripts, watch the proceedings on the closed-caption television provided by the military, and communicate with Hawsawi's attorneys. The defense rejected the use of Allaithi here, pointing out "the court's own observations that the argument that was presented in that case was in and of itself inadequate." Upon concluding the discussion of AE214, Judge Pohl dealt with a few residual matters and the commission recessed until April.