(Photo by the Inter-American Commission on Human Rights.)
As one of the lead lawyers for the five men facing the death penalty for the Sept. 11 terrorist attacks, James Connell is scheduled to spend a week or two every other month at Guantanamo Bay wrestling with the government over the many pre-trial motions that have piled up in the historic case. The two-week sessions at the Camp Justice legal complex are particularly grueling, Connell says, and another one is coming up Feb. 15-26.
“We face a serious issue of staff burnout, not least because of the secondary trauma of working with torture survivors,” he says.
Connell represents Ammar al Baluchi, a Pakistani national who allegedly transferred money for the training and travel of the hijackers. He is the nephew of the best-known defendant, Khalid Sheikh Mohammed. Like his alleged co-conspirators, al Baluchi spent multiple years at CIA black sites and was subjected to enhanced interrogation techniques before his transfer to Guantanamo Bay in September 2006. Connell is allowed to meet with his client at Guantanamo Bay but cannot speak with him by telephone or video conference.
“We can write to each other, via an elaborate secure email and courier system,” Connell explains. “A protective order establishes a complex system of ‘informational contraband’ governing what information I can provide to him.”
The 9/11 group is being tried under the Military Commissions Act of 2009, which replaced earlier efforts by the Bush Administration to use military tribunals for the detainees held at the island. The Obama-era version contains some improvements over the 2006 act from the defense point-of-view, such as prohibiting the use of evidence gained by torture and requiring that, in addition to military defense lawyers, the death-penalty defendants have government-paid “learned counsel” experienced in capital cases – such as Connell.
The military commissions’ critics, Connell included, nevertheless contend that the tried-and-true federal court system would have been a better forum for the 9/11 trial compared to the new and mostly untested regime. Though the Obama administration had felt similarly – scrapping the first commission against the 9/11 defendants left over from the Bush era – it eventually adopted the commission approach after plans for a trial in lower Manhattan ran into fierce political resistance.
The present commission has been bogged down in pre-trial litigation, even as President Obama reaffirms his pledge to close the facility. An FBI investigation into the defense team for one of the other defendants, Ramzi bin al Shibh, delayed the case for 18 months as the judge, Army Col. James Pohl, looked into whether the probe created conflicts on Bin al Shibh’s team. Though Pohl ruled a conflict did not exist, defense lawyers still estimate that a trial is at least five years away.
As a student at William & Mary Law School, Connell aspired to be a women’s rights advocate. However, after graduation in 1996, he quickly took to criminal defense work as a young public defender. Later, as a name partner at Connell, Sheldon & Flood, in Fairfax, Va., he handled the appeal of John Allen Muhammad, the so-called “D.C. Sniper” who was executed in 2009. Connell left his partnership to join the military commission’s Office of Chief Defense Counsel (now called the Military Commissions Defense Organization) in 2011, when the five defendants were charged. In 2013, he left to form Connell Law, LLC, based in Cabin John, Md., to handle the case as a contractor for the Department of Defense.
Any observer of the proceedings at the highly secure Courtroom II facility is likely to suspect that Connell has a knack for complex litigation. He displays an encyclopedic mastery of the case’s massive library of briefings, supplements and exhibits; other attorneys and Judge Pohl occasionally turn to him to confirm which document the court should be referring to at any given time. (Connell credits his team for helping him stay organized.) Lawdragon discussed the case with Connell during its coverage at Guantanamo Bay and in conversations since the last hearing in December. [Browse Lawdragon's Guantanamo coverage.]
Taking On the 9/11 Case
Lawdragon: How did you first become involved in this case?
James Connell: The first case against these defendants, in 2008, was under the Military Commissions Act of 2006, which only provided for military defense counsel. But the ACLU and the National Association of Criminal Defense Lawyers set up a joint effort called the John Adams Project, which funds civilian counsel to be involved in the military commissions. I played a relatively minor role in that project, working mostly on motions and organization. Then, in 2011, after the Obama administration’s plan to hold a civilian trial did not work and they charged the men again in the commissions, this time under the 2009 act, they were looking for attorneys.
LD: Did you have any reluctance to take the case?
JC: In 2011, no lawyers had ever been paid by the military on a Criminal Justice Act basis – the way that attorneys are compensated in federal cases when representing indigent defendants – so we didn’t know if it was going to work out. I declined because I had five other death penalty cases at the time, and this was going to be number six. Then they asked, “Well, what if we could hire you and you could work on the case full time?” I had always been interested in doing that, to sink all my energy into one case, so I said yes.
LD: You started on this case in 2011 as a Defense Department employee, then in 2013 set up your own firm to work on a contract basis. What was the reason for doing that, the switch from employee to contractor?
JC: Right now, the defense team includes military members from three services (we have no Marines at the moment), Government Service civilians, Department of Defense contractors, and me, a private attorney. Private attorneys have more flexibility than government employee attorneys in a lot of ways: fewer restrictions on public statements, more options in arranging travel, and of course the authority to hire their own employees. I wanted to take advantage of a wider range of options in defending the case. The regulation requires the Military Commissions Defense Organization to provide death penalty counsel with administrative support, so still I have an office there.
LD: When do you have to go to that office instead of working elsewhere, such as your Connell Law office?
JC: The Military Commissions Defense Organization has offices in Arlington, Virginia, which includes secure facilities. There are guards, badges, passcodes, and posters on the wall encouraging us to do everything from reporting foreign contacts to exercising motorcycle safety. My favorite poster tells us not to improvise scaffolding using found materials. Once a furniture mover, after being properly identified and documented, looked around and said, “I don’t know what you do here, but thank you for doing it.”
I am not required to work there, but I work there almost every weekday I am in the Washington area. For one thing, it is the only location other than Guantanamo I can work with classified information. For another, I find there is no substitute for being physically present with the team. We have adapted Scrum Agile Project Management, an iterative software development methodology, for use in complex litigation. Among other things, we hold a 14-minute team meeting, standing up, every day. The Scrum board, covered in post-it notes, is located in my Arlington office.
Of course, I also spend a lot of time at Guantanamo. We have two offices there, with different classification ratings. It gets crowded, especially when the whole team tries to work in two rooms.
LD: Are you able to take on any other cases?
JC: Like every lawyer, I help people out from time to time but it is 99 percent the 9/11 case. I occasionally get calls asking me to get involved in other death penalty cases, and I always turn them down because the scope of this case requires basically all of my attention. There's no room for another death penalty case, or even another non-capital case.
Progress in the Case Hampered by Numerous Delays
LD: Did you have any idea that it would take this long?
JC: No. I had no idea of the actual problems that confronted the case. In some sense, I was betrayed by my experience, right? I've done large cases and even one terrorism case, so I thought that I knew what I was in for. But I was totally wrong.
I was initially hired as a term employee, for a term not to exceed eighteen months. I resigned from my law firm, but I kept my interest in the law firm’s building, and even left my office furniture at my old law firm. In late 2013, when the government shut down the hearings by challenging the competency of one of the defendants, I knew that this process was going to take a long time.
LD: The delays are often attributed to the commissions being a new system, with defense attorneys feeling an obligation to file motions on anything that can possibly be challenged.
JC: That's true in every capital case. You have an obligation to challenge whatever can be challenged, but the difference in the military commissions is that so many more things are challenged because nothing has ever been decided. It's not even decided what circuit we operate under. Under the 2009 Military Commissions Act, the case would eventually go to the D.C. Circuit, but it's not decided whether the circuit’s law is binding on the military commissions or if it's just persuasive. It's never been decided whether the Constitution applies at Guantanamo. When we filed a motion to decide whether the Constitution applied, the judge said that the issue will be taken on a case-by-case basis.
Very fundamental questions go unanswered, and we do have to explore all of those questions because we'd be doing a disservice to the client if we didn't. But all that being said, that's not the reason why there have been so many cancelled hearings and delays.
LD: I assume you are referring to what the defense has repeatedly referred to as “intrusions” into your attorney-client relationships, which have also been the subject of many motions in addition to much of the news coverage of this case.
JC: Yes, the reason why there have been so many cancelled hearings is that the government cannot get out of its own way in this prosecution. It's constantly intruding into the defense function in a way that is disturbing to the military judge and requires investigation and redress. Bugging the defense meeting rooms, FBI investigations into the defense teams, the fact that a former CIA interpreter showed up as a linguist on one of the defense teams, seizure of DVDs documenting the investigation – the list goes on and on. Most of the problems in the military commissions are not legal challenges because legal challenges are what judges handle. The real problems are the government intrusions into the functioning of the legal system, including the defense function.
[Editor’s note: The military commission’s Office of Chief Prosecutor, led by Brig. Gen. Mark Martins, has stated that it has not listened to any attorney-client communications.]
LD: At the end of December’s hearings, you said that the trial was probably five years away. But during oral arguments that week related to the CIA interrogation program you also said the case was entering its “second phase.” Those two things might sound a little contradictory to an outsider – can you set the stage for what we might see in 2016?
JC: In October 2015, after 18 months of delays, the military judge ruled that the case could proceed because the FBI had concluded its investigation into the Bin al Shibh defense team. That ruling sets the stage for the next major issue: What discovery does the government have to produce regarding CIA abuse and torture of the defendants? We know that the Senate Select Committee on Intelligence had access to over six million pages of classified documents, but the government so far has produced less than a hundred pages of classified documents relating to the CIA torture program.
At the December 2015 hearing, the government said that it needs until September 2016 to gather the discovery it intends to voluntarily produce. The 2016 hearings are likely to see a lot of argument over what information the judge is going to order the government to produce.
LD: If President Obama succeeds in closing Guantanamo, what do you think will happen with the commission? Is this affecting your work at all?
JC: I haven’t had access to any plans for closing Guantanamo. In fact, our requests to view potential confinement sites within the U.S. have been denied. But as I understand it, President Obama hopes to relocate the military commission to a place within the United States, so it would continue for the foreseeable future.
We haven’t seen any actual effects on the military commissions from the talk of closing Guantanamo. The only recent change is that they laid an Internet cable from the U.S. to Guantanamo, and we no longer have to rely on slow, satellite-based Internet. As for the rest of it, we will have to wait and see.
The Senate Report and Classified Information
LD: The December 2014 release of the Senate Select Committee on Intelligence Report on the CIA’s Detention and Interrogation Program – often referred to as the Senate Torture Report – put more details about past treatment of detainees in the public domain. The consensus was that this has had a positive effect on the case, such as making it easier to talk about past treatment in open court. Is that your view?
JC: Yes, absolutely. It's had a number of effects that aren't completely obvious. In addition to moving more facts into the public domain, it seems to have had a follow-on effect of changing some of the classification rules that we don't see. We don't see the rules, but we see the effect of it and we're sometimes seeing statements being declassified that we would not expect in prior years to have been declassified. I think that it's a very positive thing. The judge ordered a review of all of the pleadings in the case and a substantial number of pleadings that used to be classified subsequently became unclassified. But the Senate report really just scratches the surfaces. The redacted executive summary is only10 percent of the full 6,000-page report.
LD: What is the likelihood you will get the full report?
JC: We have a motion pending for an unredacted copy of the Senate report and its underlying documents but the judge hasn't ruled on that. In fact, he hasn't even put it on the docket yet. If the government is not willing to come clean about its use of torture then there will never be a trial that has any kind of legitimacy to it. If they are willing to produce that information then it's a possibility. But so far, three-and-a-half years into the litigation, the government has not been willing to produce meaningful information about torture and what happened in the black sites.
LD: One of your motions seeks discovery on how the government cooperated with the makers of the movie “Zero Dark Thirty,” about the capture of Bin Laden, in which a character subjected to harsh treatment is based on your client. Why do you want that information?
JC: We don't have any objective – meaning not from the client – description of what was done to him in his roughly three years in CIA custody. The redacted executive summary of the Senate Report says that enhanced interrogation techniques were employed against Mr. al Baluchi but with no details whatsoever. There's no explanation of which techniques, or whether they were authorized. There are a number of techniques that are depicted in the movie Zero Dark Thirty. One of the things that we would like to know is official confirmation of the techniques that were used against him. It's one of many ways we're coming at that same problem of the prosecution not providing any information about what actually happened in the black sites.
LD: I assume that, given the lengthy FBI investigation into the defense team for Ramzi bin al Shibh, the handling of classified information is still a huge concern.
JC: There is so much ambiguity around what is actually classified that the chilling effect of being afraid of saying something wrong is just as damaging as the over-classification itself. Part of the real trouble is the gray zone of knowing that if we use the active voice instead of the passive voice we could be prosecuted for it.
LD: Can you give an example?
JC: The Senate report says that Mr. al Baluchi was transferred from a foreign partner to a black site. That is something we're allowed to say. But if we were to say who transferred him, if we were to use the active voice, that “X transferred him from the foreign government partner to a black site,” then that would be a breach of the classification rules.
LD: Even if it’s a fact that happens to be known?
JC: Yes. Whether facts are known has nothing to do with the classification rules we operate under. There are many facts that you could talk about all day long without any repercussions, but that if I were to say the same things that essentially everyone knows, I could be prosecuted for revealing or confirming classified information.
The Attorney-Client Relationship
LD: Can you talk about your relationship with Ammar al Baluchi? When did you first meet him?
JC: The first time that I went to Guantanamo for this case, in October of 2011, was the same week the Joint Task Force Guantanamo Bay, which runs the prisons, seized all attorney-client materials to inventory them: every handwritten note, attorney-client letter, pleading and marked-up discovery document. JTF seized the legal materials of all prisoners at the Camp 7 detention facility, where former CIA detainees are held, starting with Abd al Rahim al Nashiri [accused of the Oct. 12, 2000 USS Cole bombing] and the 9/11 defendants. That event, which became euphemistically known as the “baseline review,” did not go over well with the prisoners at Guantanamo.
After the baseline review, my client, Mr. al Baluchi, decided that I was useless, that there was nothing I could do for him and that he wasn't going to meet with me because I didn't have any control over his materials being seized or being recorded, or anything else. I didn’t meet him until the arraignment in May 2012, and from the arraignment forward it was essentially me sitting at one end of the table and him sitting at the other end.
LD: What has happened since then?
JC: In August 2013, under a court order I went to the Camp 7 and met him there. During that meeting, he said, "You know, I think we could work together. Sometimes we'll agree and sometimes we won't agree but that's no different from any other relationship." And from then on out we've had a strong working relationship.
Unfortunately, the same problems recur: After I visited Mr. al Baluchi’s former homes in Dubai and Kuwait, the government seized the DVDs I made for him documenting my investigation. We’re still trying to figure out exactly what the government did with the DVDs, but we know that they kept one of them for two months, then returned it to Mr. al Baluchi. So the attorney-client relationship is under constant threat: Why should Mr. al Baluchi participate in developing a defense if the government is simply going to seize the results for themselves?
LD: You and the other defense attorneys regularly refer to the treatment of your clients at the CIA black sites – what the Bush administration called enhanced techniques and what you and many others have said is torture. How is your client doing now?
JC: He has a lot of physical and mental damage from his experiences. He has physical pain in his body, and he has symptoms of traumatic brain injury, difficulty remembering things, difficulty concentrating, and a lot of symptoms of post-traumatic stress disorder. He can’t sleep, with a kind of permanent jet lag. He struggles. Some days are more of a struggle than other days but he really suffers from the lack of meaningful treatment or rehabilitation from his torture.
At the same time, he’s a very sophisticated thinker. He has an excellent command of English and an excellent understanding of American popular and legal culture. He's very much engaged in his defense, especially the international law aspects of it. He is a full participant, a full partner in his defense. I expect that partnership to continue unless the government is able to disrupt the relationship through its intrusions, or the symptoms of his torture interfere.
LD: I read in an article that your client doesn’t harbor any resentment towards the people who held him in custody. Is that accurate?
JC: That is absolutely accurate. When the Senate report came out, one of the first things that he wanted to make clear is that he does not hold any grudge against the people who tortured him. He could see how much the people who tortured him suffered when inflicting pain. His real perspective on it is that he had his faith to carry him through those dark times and he felt that his torturers didn't have anything, that they were just hollow human beings.
Insights into Defense Strategy
LD: Under the 2009 Military Commissions Act, the government cannot use evidence based on torture or cruel, inhuman or degrading treatment, which would seem to exclude information from the black sites. What about since his arrival at Guantanamo in 2006 – would evidence from that period ever be clean and fair to use, or is it all tainted from your perspective?
JC: Ninety percent of the evidence against Mr. al Baluchi comes from a three-day joint military-FBI interrogation in January of 2007 at Guantanamo. The question of whether those statements are admissible or not is the core legal question in the case. It has a lot of antecedent questions. What happened before that? What was going on during it? Why did the government decide to not give Miranda warnings? Why did they decide to hold him incommunicado and not give him access to counsel? I don't think that ultimately anyone will decide that the January 2007 statement is completely independent of the torture that took place between 2003 and 2006, especially given the extremely harsh conditions that continued in January 2007 and that continue to this day.
LD: I know that you have taken investigative trips overseas. Are you going to be challenging any of the factual underpinnings? That he didn’t make this or that transfer of funds – that type of argument when it comes to financing allegations against him?
JC: We’re doing all that sort of investigation. What really happened here, and most importantly, why did it happen? Specific intent is an important part of any conspiracy or liability for a substantive offense. The old questions of what did he know and when did he know it are really important. I think that we do have a substantive defense on the merits – a guilt or innocence defense and not just a death penalty defense.
LD: When you're doing investigative work, do you feel you are doing it in a privileged way or do you have a concern that what you're doing is going to get to the government?
JC: There's no question that someone is finding out what we're doing. When we go to another country, we have to give foreign travel notification of where we're going. Our government stopped us from travel to one country by denying “country clearance.” The government buys our tickets. I know for a one-hundred percent certainty that in one country we were followed by local intelligence; in other countries, our people have been stopped and interrogated. We can’t afford to pretend that what we're doing is secret from our government or necessarily from any other government. But that reality does not excuse the invasion of the zone of privilege necessary to a criminal defense.
Despite the Challenges, a “Satisfying” Case Professionally
LD: Do you get hate mail or other negative feedback from the public for working on this case? Is it different for this case than other cases you've handled where your clients are very unpopular, such as the D.C. sniper case?
JC: Even in the sniper case, for every one piece of hate mail, we got five letters that said, “Thank you very much for doing what you doing, you make me proud as an American.” And there was no person more unpopular than John Allen Muhammad. Ironically, here, at this job, all of our mail goes through the Pentagon, so we rarely receive any unsolicited mail, hate or love or anything else. Someone could send mail to my Connell Law address, but I guess most people have better things to do with their time.
One of the most important things that we do along these lines, however, is that we have a real commitment to openness and communication with the 9/11 victim community. We make ourselves available to talk to anybody who wants to talk to us, no matter what they want to say. Sometimes that's in person, sometimes it's on a conference call, sometimes it's at a presentation or a conference. But we don't hide from the pain that so many people have suffered from injury to themselves or the loss of their loved ones. We have experienced the whole range of human emotion from the victims and the victim family members, from them having respect for our role in the rule of law to personal attacks, because we're a convenient target and we happen to be there at the time. Grief is a very powerful emotion, and we try to honor that.
LD: Despite the difficult subject matter, what do you find satisfying about it as a lawyer?
JC: I find the complexity satisfying. I enjoy the process of trying to take a complicated set of facts and then apply a complicated legal structure to it. From a professional point of view, this case is especially satisfying for that because there are multiple sets of facts. There is everything that happened leading up to 9/11, which is an important set of facts. There's everything that happened in the CIA black sites, which is also an important set of facts. And then there's everything that's happening at Guantanamo, which is another important set of facts.
It also involves multiple areas of law that I have to apply. There's the one that I know well, the criminal defense and capital litigation part, but there's so much else that I came to this job knowing nothing about. I knew nothing about international law or military law or national security law, and I spend far more time applying those areas of law than I do what I came to the job knowing.
LD: How do you and the lead military defense lawyer, Air Force Lt. Col. Sterling Thomas, divide up work?
JC: Lt. Col. Thomas and I are co-leaders of the team. Working in a military context, there is a shocking amount of work to do which is not, strictly speaking, legal, including approvals, officer, non-commissioned officer, and civilian evaluations, and service matters. We divide up the work, but Lt. Col. Thomas winds up taking more of the leadership responsibilities, and I wind up with more of the day-to-day legal work.
Sometimes other military are surprised to learn that the Military Commissions Defense Organization is a truly military office, probably because the civilians have a higher profile in the courtroom. The room is called to attention when our commander Brigadier General John Baker [the chief defense counsel of the military commissions] enters. There is a muster report [similar to a roll call] every day at 0900. There are service and team chains of command. Our team even has mandatory PT (physical training) for military members.
LD: You probably could not have imagined this type of case in law school. But did you at least see yourself becoming a criminal defense lawyer working on complex cases?
JC: No, it's not what I went to law school for. I went to law school thinking that I wanted to work on women's rights issues. In fact, my first job was an internship after my summer of my first year was with the National Organization for Women, which was a great internship.
I'm going to date myself here, but back in the day at law school you could take paper resumes and drop them into physical boxes that the school would sort of bundle up and send off to places that needed interns. For my second summer I put my resume into a box for the Federal Public Defender's office in Las Vegas. It didn't register with me at the time, but I got a call from Franny Forsman, who headed the office. I must have sounded completely clueless—I didn’t even remember applying—but she saw something that she liked because at the end of the interview she offered me a job. I thought, “Why shouldn't I go to Las Vegas? That sounds great.” I drove out to Las Vegas from Virginia by myself and fell in love with criminal defense work. I realized at that point, “This is what I want to do for the rest of my life.”
LD: When did you start getting a focus on bigger and more high-profile cases?
JC: After law school, I was a law clerk at the Court of Appeals in Virginia and then worked at the state public defender’s office. It wasn’t until 2003, after a few years in private practice, that I really had an exclusive focus on very serious cases. Between 1998 and 2003 I did my fair share of bad checks, DUIs and petty larcenies, all the things that make up an ordinary criminal practice. And that was important. I always tell law students or young lawyers to get a lot of experience in the smaller cases before you try to move on to the bigger cases. Nothing is intimidating the two hundredth time you do it.
LD: You’re still relatively early in your career. Have you thought about what working on one giant case would have on your career?
JC: Career-wise, I don’t know. Time will be the judge of that. We will see when it comes time for my next career move, whether this is an asset or a hindrance. Right now, I don’t know.