GUANTANAMO NAVAL BASE, CUBA – A lawyer for one of the five detainees facing the death penalty for the Sept. 11 terrorist attacks compared the military commission on Friday to a well of toxic waste that has been poisoned by repeated interference in the case by a host of government officials and agencies.
“We should not drink from that well,” Walter Ruiz, lead counsel to Mustafa al Hawsawi, told Army Col. James Pohl in urging him to dismiss the charges or prohibit the government from seeking the death penalty.
Pohl presides over the 9/11 case on Guantanamo Bay and serves as chief judge for the military commissions. Government trial counsel Robert Swann told him that the defense claims were “baseless” and sprang from the attorneys’ “imaginations.”
Friday was the last day of hearings in a week that was mostly taken up by testimony on the judge’s temporary ban on female guards escorting defendants on their way to and from court and legal meetings, a ban that remains in effect for now. A two-week session is scheduled to start Feb. 15, 2016. [Related: Read additional coverage.]
In seeking the case's dismissal, defense lawyers contend that a wide range of comments and actions by government officials constitute “unlawful influence.” The Military Commissions Act (MCA) of 2009 prohibits “any person” from unlawfully influencing the commission, its convening authority, prosecutors or defense counsel. Under the MCA, the convening authority decides if and what charges to refer for trial after receiving a submission from prosecutors.
The unlawful influence motion was first filed shortly after the May 2012 arraignment and has been amended numerous times since.
Ruiz began his oral arguments on Thursday afternoon with slides and videos showing a sampling of statements made by Presidents Bush and Obama and other senior officials that either directly or implicitly appear to assume that the defendants are guilty.
Swann said Friday that these comments needed to be taken in the context of officials informing, and at times reassuring, the American public, and were not made to influence the commission. He labeled as “unfortunate” then-Attorney General Eric Holder’s comment in 2013 that all five defendants would already be on death row if the case had progressed in New York federal court, as Holder had sought before losing political support for that effort.
Ruiz took issue with the notion that defense attorneys are merely imagining all the problems they have seen in the case. He said the convening authority in 2011, Navy Vice Adm. Bruce MacDonald (Ret.), should not have referred the death penalty case for prosecution before allowing defense counsel to establish relationships with their clients in support of a mitigation filing.
Ruiz cited seizures of attorney-client materials, the earlier presence of surreptitious listening devices in the client meeting rooms and “the well-known red light incident.” That incident involved a court session in early 2013 when an outside party – believed to be the CIA – triggered the courtroom’s flashing red light, which is used to stop proceedings if classified information is revealed.
Ruiz said he wasn’t attributing these particular intrusions to the prosecutors, who say they have never listened to attorney-client communications.
Both sides agree that most of the official comments on the case and its presumed outcome have been made in reference to the best-known defendant, Khalid Sheikh Mohammed, the alleged 9/11 mastermind.
His military defense counsel, Marine Maj. Derek Poteet, contended that too many “plainly inappropriate and reckless” comments have piled up – the bell cannot be “un-rung.” Poteet told Pohl that this case will be looked to for decades for “what is acceptable in military justice.”
Ultimately, the case will be decided by a panel of 12 military officers selected from a larger pool. Swann said that the impact of comments by public officials could be dealt with in voir dire.
James Harrington, the lead lawyer for Ramzi bin al Shibh, was not planning to add his own oral arguments to the record on Friday, as all defense lawyers have joined the unlawful influence motion. But he came to the podium to discuss Swann’s statement that defense attorneys had “no proof” that any government entity engaged in improper surveillance.
“How would we have proof of that?” Harrington said; one of the agencies would have to admit it.
Parts of the hearings in October dealt with a now-closed FBI investigation into Harrington's legal team. Pohl ruled then that the probe did not create a conflict, but he ordered the Justice Department to turn over discovery on what had transpired.
Harrington told Pohl on Friday that he has, in fact, been receiving discovery on the FBI investigation into his team that details a clear “invasion” into the defense counsel. He said that issue will “roar” back into the case in the months ahead.
Ruiz added that he was trained in the law but not in counter-surveillance operations.
“I have no intelligence background to ‘out’ the people who are monitoring me,” he said.
Ruiz asked Pohl to use all his “power and authority” to take steps to "purge" the taint associated with the case, though he doubted it was possible at this point. The judge did not rule on the unlawful influence motion Friday.
Toward day's end, James Connell, the lead attorney for Ammar al Baluchi, moved forward with his argument on the defense's motion to compel discovery on communications between the White House, the Justice Department and the CIA on the CIA’s Rendition, Detention and Interrogation (RDI) Program.
Doing so, he said, would move the case into its “second phase.” Connell said the information was critical to understanding a complex “loop” of communications behind decisions for the RDI program. The information is relevant for mitigation purposes and also to the admissibility of statements made by defendants to interrogators after arriving at Guantanamo Bay, he explained to the court.
But the chief prosecutor, Army Brig. Gen. Mark Martins, said that a better way forward was a “consolidated” approach on all pending CIA-related discovery. Connell characterized the government’s approach to discovery as “delay, deny and degrade,” which Martins said was not accurate. Martins says his team works on discovery seven days a week.
“We know [our discovery obligations] and are going to turn over a lot of stuff,” Martins said.
Pohl sided with Martins, giving him two weeks to file a pleading with the full list of the contested discovery issues. The judge then asked the government when the entire discovery process would be completed. Prosecutor Clay Trivett gave him a date of Sept. 30, 2016.
In a press conference after the hearing, defense lawyers estimated that a trial was at least five years away. Martins did not agree but declined to estimate when a trial could start.