Two weeks of hearings in the Sept. 11 case at Guantanamo Bay ended on Friday with prosecutors and defense attorneys offering competing views on the progress made. The day also saw the first witness testimony of this round with two guards testifying on motions related to the judge's ban on female guards touching 9/11 defendants on their way to and from legal meetings and court hearings.
(Related: View other Guantanamo Bay articles.)
But the day began with a longstanding defense argument that the Convening Authority for the Military Commission should not have referred capital charges against the five defendants in the first place.
Under commission rules, the Convening Authority, who is appointed by the Secretary of Defense, decides what charges to refer to trial after prosecutors draft charges. In this case, the Convening Authority referred charges for a death penalty trial in April 2012. The arraignment took place in May 2012.
Defense lawyers contend that the referral was “defective” because they did not have enough time to develop relationships with their clients and investigate possible mitigation defenses. They want the charges dismissed or for the judge, Army Col. James Pohl, to restart the referral process to allow the Convening Authority to consider mitigation submissions.
Their argument received new ammunition with the December release of the executive summary of The Senate Intelligence Committee Report on Torture. The defendants spent multiple years at CIA black sites before transfer to Guantanamo Bay in 2006.
Cheryl Bormann, the lead attorney for Walid bin Attash, told Pohl that her client was held incommunicado for three-and-a-half years, “deprived of any sunlight” and “subjected to treatment” that by any standard was “horrific.” She said the Convening Authority at the time of the referral, Navy Vice Admiral Bruce MacDonald, set random and arbitrary deadlines in the pre-referral phase that prevented her from submitting material and relevant information.
Bormann said that the events of the last two weeks – which involved her client asking about self-representation and then seeking to fire her– pointed to the lack of trust created by his treatment in detention, which has hampered the attorney-client relationship. Pohl denied Bin Attash’s request.
Pohl asked Bormann if the pre-referral mitigation process was a right or a matter of discretion. Bormann responded that it was a due-process right, and also that it was standard procedure in federal cases.
Walter Ruiz, lead attorney for Mustafa al Hawsawi, agreed. He said that the Senate report’s executive summary provided “only a glimpse” of the torture program that for his client included waterboarding and rectal hydration - “a euphemism for sodomy.” His latest supplemental motion asks the judge to order the government to turn over the full Senate torture report.
The prosecution team led by Army Brig. Gen. Mark Martins did not provide oral arguments on the matter. In a court filing, the government contends that the manual for U.S. attorneys “permits defense counsel to present documents and materials to inform the death penalty decision” but “does not create a pre-charge right to present a mitigation case.”
The other three defendants in the case are Ramzi bin al Shibh, Ammar al Baluchi and Khalid Sheikh Mohammed, who is alleged to have conceived and principally planned the 9/11 attacks. As in recent days, all were present in court except al Hawsawi,
The final hearings in this two-week term also started to address Pohl’s temporary order barring female guards from touching the 9/11 defendants on their way to and from legal meetings and court. The balance of Friday's hearings involved the testimony of a detention officer who had worked at Camp 7, where the high-value detainees are held. Though she testified in open court, she did so with a pseudonym -- Staff Sargent Jinx – because she still works at the detention facility.
Attorneys from each defense team questioned Jinx; the government did not. Jinx testified that the limitations negatively affected the “manning” or staffing of the facility – as well as the performance-review process – but had not caused any security problems with the movement of the 9/11 defendants to meetings or court sessions.
Pohl limited defense questions about last week’s visit to the detention facility by New Hampshire Sen. Kelly Ayotte, who along with two other senators met with guards, including Jinx. Ayotte has been critical of the ban and questioned Secretary of Defense Ashton Carter about it in a Senate hearing earlier this week. Carter called the ban concerning female guards an "outrage."
Defense attorneys portrayed the remark as part of a pattern of “unlawful command influence” that has tainted the proceedings and is the subject of other motions.
Competing Views of The Past Two Weeks
In a post-hearing press conference, Brig. Gen. Martins, the commission’s chief prosecutor, commented on the progress achieved by the two weeks of hearings. He cited the signing of memorandums of understanding, or MOUs, related to the handling of classified information by the two teams that have held out the longest before signing them: Bin al Shibh’s team, led by James Harrington, and Mohammed’s team, led by David Nevin. Signing the document is a prerequisite for receiving classified information. Martins said his staff had already started turning over classified discovery to the teams. (Both defense teams have preserved their objections to the MOUs for appeal.)
Martins also cited Pohl’s ruling that a prior federal investigation into the Bin al Shibh team did not create an actual or potential conflict of interest, clearing the way for proceedings to move beyond what had been their biggest obstacle.
But James Connell, lead attorney for al Baluchi, said the two weeks only served to highlight the “chaos” of the commission system and all of its problems “in miniature.” Both he and Harrington said at the press conference that the conflict-of-interest issue is likely not resolved, just postponed. The government is required to turn over discovery about the investigation, which attorneys expect to renew potential conflict issues. Ruiz, who wants his client severed from the case, also said that the hearings did not provide much substantive progress.
Colleen Kelly, whose brother, William Kelly, Jr., died in the World Trade Center’s North Tower on Sept. 11, also spoke at the press conference. Nine family members of the nearly 3,000 victims attended the first week of hearings; Kelly and her mom, JoAnne Kelly, stayed for the second week.
Kelly was impressed with the amount of issues and motions covered in the two weeks and said she felt as though she had been watching “the Constitution in action.” She also wished that more people could watch the proceedings, which can only be viewed at Guantanamo or in closed circuit screenings at some military bases.
“I wish the entire world could watch what is happening at Guantanamo Bay,” Kelly said. “We have nothing to hide.”
The next week of hearings is scheduled to start Dec. 7.