Guantanamo Naval Base, Cuba – Prosecutors and defense teams in the Sept. 11 case haven’t shared much sentiment during the long pretrial phase stretching back to the defendants’ May 2012 arraignment. But all parties acknowledged last week that the case arising from the worst-ever attack on American soil doesn’t always receive the level of attention and resourcing demanded by its historic importance and dense complexity.
Air Force Col. Shane Cohen, in just two sessions as the judge, has already received several crash courses in the paradoxes that unfold uncomfortably in the remote Guantanamo setting. He devoted all of Friday to discuss scheduling issues and the strangely elusive concept of setting deadlines leading to a trial. That debate necessarily included the tropical GTMO stew of substantive, procedural and mundane issues – ranging from important evidence of CIA-FBI coordination in interrogations to work stations plagued by mold and slow printers.
Since taking the case in June, Cohen has at times seemed fascinated, curious, frustrated and perplexed when demanding insights on both the granular details as well as the 30,000-foot view of the proceedings, all while being unfailingly polite.
“I am trying to put order to a process that I did not create,” Cohen said on Friday morning, revealing the blend of determination and humility that has come to define his short term on the 9/11 bench.
Ed Ryan, one of the prosecutors, argued to Cohen that June 2020 was a reasonable trial date. In making his argument, Ryan referred to both the five “self-avowed enemies of the United States” in the courtroom and the victim family members watching from a gallery that is separated from the court by three panes of glass.
“Our client – this nation – deserves a reckoning,” Ryan said.
Defense lawyers contend that next June is wildly unrealistic – and that setting a trial date before certain milestones are reached is unwise. The five teams fielded a unified position that Cohen should first set a date for the completion of the discovery process, which would then set the timing for additional milestones. For example, once the government has certified that it has completed discovery in terms of document production and made available all physical evidence, the defense teams could then have 120 days to file motions to compel additional discovery, according to a defense proposal outlined by James Connell, the lead lawyer for Ammar al Baluchi.
Defense lawyers cautioned the judge against sacrificing fair-trial standards for the sake of expediency. Walter Ruiz, the lead lawyer for Mustafa al Hawsawi, argued that prospect is more dangerous than the five defendants who have been in custody since 2002 and 2003.
“The true enemy is really the degradation of our process,” Ruiz said. “That is far more of a threat to us as a society.”
James Harrington, the lead attorney for Ramzi bin al Shibh, argued that cases when the defendants are thought of as “evil” are when courts need to be especially “vigilant” in safeguarding due-process rights.
As in many matters in the military commissions, important legal principles can never be fully separated from logistical details like the amount of housing available on the base. Defense teams want the assurances in writing from the Convening Authority – the Pentagon official who oversees the military commissions – that the government will fund infrastructure improvements to better sustain the demands of a lengthy capital trial. They also need funding and security clearances approved for experts and consultants. (In a potential wrinkle, defense teams are also planning to seek the recusal of the current convening authority on the Sept. 11 case, Christian Reismeier, on the grounds that his past professional experience creates concerns over impartiality.)
Ryan argued on Friday that these resourcing uncertainties are exactly why Cohen should set a firm trial date.
“Dates drive will, and dates drive action,” Ryan said. “Dates energize and mobilize.”
Connell told Cohen that, if he was enticed by the potential power of a trial date, he should settle on October 2021 as the target. That would be just past the 20-year anniversary of the Sept. 11 attacks.
If Ryan got his June 2020 start date, Connell added, “it would break Guantanamo.”
After court, Connell reiterated to reporters that he does not think setting a date is appropriate at this time. However, he added that he likes to “read the room,” and his sense was that Cohen was possibly leaning towards the notion of setting a specific date.
Defense lawyers focused on the completion of discovery as the single most important date from which to build. In recent months, they have been simultaneously pleased and dismayed by discovery’s progress – happy to get more details of the abuse and interrogation of their clients but concerned about receiving them this late in the game.
While Ryan said the process of turning over this evidence was in its final stages, defense lawyers contended that they’ve heard that refrain numerous times over the past several years.
The lead lawyer for Walid bin Attash, Cheryl Bormann, told Cohen that her team has only recently received FBI notes from an interrogation of her client at Guantanamo Bay in 2008, and is still waiting for notes from interrogations in 2007.
David Nevin, the lead attorney for Khalid Shaikh Mohammad, reminded Cohen that still pending is a defense motion to access the full 6,000-page Senate report on the CIA interrogation program and the six-million pages of underlying documenting material. Right now, defense lawyers only have access to the publicly available 500-page executive summary, which itself contains redactions.
Nevin said it’s “surprising” that defense teams would not be able to access such obviously exculpatory and mitigating evidence in a capital trial.
He also expressed alarm at Ryan’s update on another line of discovery involving all the medical personnel who treated the defendants at Guantanamo Bay: These individuals are only identified in documents by pseudonyms, and the government cannot locate or even determine the actual identity of many of them.
“Hundreds of witnesses have utterly disappeared,” Nevin said.
On Friday, Cohen appeared determined to use significant parts of the three-week September hearing to call witnesses for defense motions to suppress statements their clients made to FBI interrogators at Guantanamo Bay in 2007 and 2008, which the government has said are critical to its case. Lawyers claim these statements are rooted in torture based on the coordination between the CIA and the FBI during interrogations conducted at both the black sites and after their arrival at Guantanamo Bay.
Three defense teams have filed motions to suppress, while the other two teams may do so by an August 19 deadline or seek additional extensions. Even lawyers on the teams that have filed motions are somewhat leery of starting these critical hearings before being as prepared as possible, and are fearful they will not receive all of the relevant discovery that could inform their examinations and cross-examinations of witnesses.
In fact, defense lawyers believe that Cohen should not even hold suppression hearings. They want him to exclude the FBI statements as a sanction against the government for preventing the teams from independently contacting and interviewing relevant CIA witnesses. That was the sanction issued by the first judge on the case, Army Col. James Pohl, before his successor, Marine Col. Keith Parrella, reversed him earlier this year as being premature. Parrella said the commission might ultimately decide to suppress the FBI statements made at Guantanamo, but he wanted to at least hold suppression hearings first.
The defense teams have filed a motion for Cohen to reconsider Parrella’s ruling and reinstate Pohl’s sanction, obviating the need for any suppression hearings. The judge’s plan to start hearing witness testimony on suppression in September may signal that he intends to reject that course of action. However, Cohen indicated in court Friday that he remains open-minded about possible sanctions for the government’s prohibition on defense teams contacting CIA witnesses – including reconsidering what maximum sentence prosecutors can seek. As of now, all five defendants could face the death penalty if convicted.
In the Guantanamo minefield of scheduling caveats, those are the biggest of them all. The government would almost surely appeal any judicial ruling to suppress the FBI statements or to remove the death penalty as a sentencing option, which would delay the case by several months or longer.
Cohen did not make a decision on Friday regarding a trial date. As always, he appeared completely genuine when he thanked everyone in the courtroom for participating in a constructive session.
“I have some tough decisions to make,” Cohen said. “But that’s what they asked me to do.”
About the author: John Ryan (firstname.lastname@example.org) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.