Alka Pradhan, a civilinan defense attorney for Ammar al Baluchi, speaks at the October session's concluding press conference, flanked on her right by the team's lead attorney, James Connell, and the military defense lawyer, Lt. Col. Sterling Thomas from the Air Force.
The answer to whether the U.S. Constitution applies to the military commissions being held at Guantanamo Bay is either a clear "yes" or a fuzzy "maybe" – it just depends whether you’re talking to a defense lawyer or a prosecutor.
Defense lawyers for the five men accused of planning and financing the Sept. 11 terrorist attacks say the lingering uncertainty dating to the May 2012 arraignment of their clients frustrates their ability to plan a defense.
“After four-and-a-half years, when do we get to know what the rules are?” James Connell, the lead attorney for Ammar al Baluchi, asked at the press conference following the most recent pretrial hearing, held Oct. 11-14 at the Camp Justice complex.
“I take issue with that,” Army Brig. Gen. Mark Martins said 20 minutes later, when it was the chief prosecutor’s turn at the podium. “The Constitution applies to Guantanamo. It applies to everything we do.”
The October session was the 18th round of pretrial hearings in the case, which 15 years after the attacks remains without a trial date. Al Baluchi's co-defendants are accused plot mastermind Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al Shibh and Mustafa al Hawsawi.
During the hearings, the judge, Army Col. James Pohl, heard oral argument and witness testimony on a wide range of pending issues, including defense motions seeking access to more detailed CIA medical records of their clients. All five defendants spent multiple years in CIA custody before they were sent to Guantanamo Bay in September 2006; how much evidence from that period their lawyers will receive is among the core pretrial issues.
Questions over the applicability of the Constitution to the commissions have contributed to a broader criticism of the court system, which was established by the Military Commissions Act of 2009. Just a few months after the defendants were arraigned in May 2012, defense teams asked Pohl to issue a ruling that the Constitution is presumed to apply to the proceedings, and that the burden is on the government to carve out the specific circumstances when it does not.
Pohl declined to issue what he termed “an advisory opinion” untethered to a specific legal dispute in the case, agreeing with the government that the matter was not “ripe for decision.” But the judge added in his order, issued in January 2013, that any party could make arguments about the application of the Constitution to the proceedings so long as they were tied to “discrete legal issues” raised in the case.
Connell saw an opening to interject the Constitution earlier this year as the court wrestled with its authority to compel witnesses to appear before the military commissions. The 6th Amendment guarantees the rights of criminal defendants to call favorable witnesses and to confront their accusers. But during the summer session, Pohl remarked that he could not compel a civilian witness to testify in person at Guantanamo Bay. (At the time, the judge was hearing arguments on the conditions of confinement at the Camp 7 detention facility, and one potential witness is a representative from the International Committee of the Red Cross.)
Several weeks later, Connell’s team filed a motion to dismiss the charges against al Baluchi on grounds that the commission rules violate the 6th Amendment’s compulsory process clause for obtaining favorable witnesses. His team also filed a motion contending that the 2009 Military Commissions Act is unconstitutional because the admissibility of hearsay evidence – which is allowed with greater latitude in the commissions than in regular federal courts or courts-martial – violates a defendant’s 6th Amendment’s right to confront the testimony against him.
The government opposed both motions, which made it to the October docket.
“The right to present witnesses and the corresponding confrontation right, which is in some ways the flipside of the requirement of live presence of witnesses, is the feature which distinguishes the American and British common law tradition from the inquisitional tradition of continental Europe,” Connell told Pohl on the morning of Oct. 12.
Connell argued that Congress “got it right” in the Military Commissions Act by giving commission defendants subpoena powers similar to the regular courts. But the Secretary of Defense “got it wrong” in its subsequent written regulations when it determined that a civilian could not be forced to come to Guantanamo, which “renders the military commissions to be structurally unconstitutional,” Connell said.
The implementing regulations, Connell maintained, had to be consistent with the statute itself. He acknowledged that the defense teams have acquiesced to video-teleconference testimony for some pretrial witnesses but said they would not consent to the method “in many, many situations.”
Connell said the appropriate standard is found in the landmark 2008 U.S. Supreme Court decision Boumediene v. Bush, which held that the constitutional right of habeas corpus applied to Guantanamo detainees. The court held that extending that constitutional right to detainees was not “impracticable or anomalous.”
“The right to compulsory process is not impracticable or anomalous at Guantanamo,” Connell said.
He added that the U.S. Marshals would have the authority to bring involuntary witnesses to Guantanamo Bay, just as they could to a U.S. District Court in a territory like Guam.
The “flipside” constitutional right to confronting one’s accuser – as opposed to calling one’s own favorable witnesses – is what makes the 2009 Military Commissions Act “facially unconstitutional,” Connell argued. He said that the broader allowance of hearsay in the military commissions constituted w an unconstitutional attempt to “overrule” the U.S. Supreme Court in Crawford v. Washington (2004), which held that defendants have the right to cross-examine testimonial statements against them.
But Gen. Martins maintained that the defense is still jumping the gun on constitutional questions, even when narrowed to the dual 6th Amendment concerns.
In terms of the right to call favorable witnesses, the chief prosecutor argued that the defense was once again asking for “an advisory opinion” that was not “anchored to a specific set of facts.”
He said the issue would be “ripe” once the defense wanted to call a specific witness who was refusing to testify in person, at which point the judge could weigh the importance of the anticipated testimony along with the video-teleconference option and other logistical concerns.
Martins added that eventually – when the time came – the government would be confident in its constitutional arguments, given that about 30 witnesses had already testified in the protracted pretrial phase.
“They're getting compulsory process under that statute,” Martins said.
Martins further argued that the confrontation-clause issue was “even more unripe.” The government is required to give the defense its evidence “sufficiently in advance” of a trial, and at that point the defense can file motions to suppress the evidence, Martins said. Prosecutors contend the judge should allow that chain of events to unfold rather than foreclose it with a ruling on the admissibility of all hearsay evidence – before even seeing specific evidence that may be challenged.
Martins nevertheless told Pohl that government was in compliance with Crawford, which allows for exceptions to hearsay prohibitions.
“Don't take this invitation to construe a constitutional provision in the abstract,” he argued.
Connell insisted, however, that his two 6th Amendment motions complied with Pohl’s January 2013 order that invited the parties to litigate the Constitution’s applicability on a "case-by-case basis."
“At some point in our trial preparation, we have to know what the rules are,” Connell said. “I suggest that now is the time. “
Pohl did not rule on the motions from the bench. (Update: In a pair of rulings at the end of October and early November, after the initial publication of this article, Pohl again agreed with the government that the two 6th Amendment matters were not ripe for decision. He said the defense can re-file the motions “if an appropriate factual predicate arises.”)
The next pretrial hearing is scheduled for Dec. 5-9, when the parties are expected to continue moving their way through the many pending pretrial motions.
One victim family member who attended the October session, Dr. Elizabeth Berry, said at the concluding press conference that she blamed the defense teams for “prolonging” the pretrial proceedings. Berry said that for “health reasons” she feared she would not live to see the trial take place. Her brother, Capt. William F. Burke, Jr. of the New York Fire Department, was killed in the North Tower while assisting the injured.
Defendant Mustafa al Hawsawi’s Health in the Spotlight
A few notable developments preceded the start of the October session. In one, Martins announced that the prosecution had met its Sept. 30 discovery deadline to produce evidence related to the CIA’s former Rendition, Interrogation and Detention program that subjected the five defendants to “enhanced interrogation techniques” at CIA black sites before they were sent to Guantanamo.
Defense attorneys believe that the evidence of past torture will bolster motions to dismiss the charges as well as to suppress statements their clients made after arriving at Guantanamo Bay. Should their clients be convicted, they also believe the evidence will be crucial in mitigation arguments against the death penalty.
Most of the black-site evidence that has been produced has been given to Pohl, along with the government’s proposed summaries and substitutions of the classified evidence, which are intended for the defense teams. Pohl will decide whether the substitutions and summaries are sufficient and put the defense teams in "substantially" the same position as if they had the original evidence. This process in the military commissions is based on one used in federal court under the Classified Information Procedures Act, or CIPA, which aims to balance a defendant’s right to discovery with the government’s interest in protecting national security.
“There’s going to be an undetermined period of time where the commission is reviewing the material we provided,” Martins said in a meeting with reporters at Guantanamo Bay on Oct. 10, the day before before the month's hearings began.
Defense lawyers also met with the media before the hearings. Walter Ruiz, the lead lawyer for Mustafa al Hawsawi, made a surprise announcement, disclosing that his client was scheduled to have surgery later in the week to fix rectal damage caused by abuse at CIA black sites.
Ruiz and other defense lawyers have long claimed that the government is in violation of the Convention Against Torture by refusing to provide physical or mental rehabilitation for their clients, who have allegedly experienced severe harm from torture.
Al Hawsawi, for example, suffers constant pain and bleeding from what has been described as “sodomy” he endured under the guise of medical treatment by the CIA, including rectal exams, rectal hydration and feeding. Ruiz told reporters that for his client to have a bowel movement he must “reinsert parts of his anus back into his anal cavity.”
The surgery was scheduled for 9 p.m. on Oct. 14, the last day of the session, which al Hawsawi did not attend in order to rest. Ruiz told reporters the following morning that his client was recovering. Three weeks later, Ruiz wrote in an email that his client informed him by letter that he continues “to suffer excruciating pain during bowel movements and when cleaning the wound.” Defense lawyers cannot talk to their clients by phone, so Ruiz has written back to learn more details about al Hawsawi's condition and chances for recovery.
During the hearings, al Hawsawi's team railed against the government for not providing complete medical records of their client's time in CIA custody, from March 2003 to September 2006. The lawyers say they require the records to more fully document his past mistreatment.
“’You get what you get, and you don't get upset,’” was how Army Lt. Col. Jennifer Williams, al Hawsawi’s military defense lawyer, characerized the government’s position on the defense requests for the medical records.
She repeated the phrase several times during her oral argument. Williams told Pohl that while such a response might be appropriate for her eight-year-old son, it's not acceptable when given to a defense team trying to save its client from execution.
The battle over medical records discovery began before Pohl adopted the more comprehensive discovery plan for all CIA black site evidence, under which he received 10 broad categories of information by the Sept. 30 deadline. Summaries of medical records were provided to the defense in April 2014, after Pohl had approved the summaries as adequate replacements for the original documents – following the same CIPA-like procedure he is now using for the new CIA material.
But Williams said the summaries were far from sufficient. She said that Pohl approved the summaries before December 2014, when the Senate released its “Torture Report” on Bush-era CIA practices, which led to the declassification of much information from the interrogation program. The summaries were also approved before al Hawsawi's team submitted its theory of defense to the judge.
Alka Pradhan, one of the civilian lawyers on the al Baluchi team, picked up on Williams' theme, arguing to Pohl that she could not “in good conscience” refer to the documents as medical records because they were so bare-bones.
“We've identified two broad problems after requesting Mr. al Baluchi's medical records,” Pradhan said. “The incompleteness of the records that were produced by the government and the large, gaping holes in terms of what was not produced.”
But prosecutor Robert Swann told Pohl that the government had met its discovery obligations with the medical records provided, pointing out that the judge already had approved the summaries more than two years ago.
The judge referred to a point raised by Williams, asking Swann: If the Senate report led to the declassification of the many documents, including the summaries of medical records, would not the original medical records also be declassified?
“No, it doesn't mean that at all,” Swann said. He said underlying medical documents were resubmitted for review after the release of the Senate report and were determined to still be classified; the summaries remain what the defense is entitled to see.
He said that the Sept. 30 evidence the prosecution provided to Pohl might contain some additional documents relevant to medical records.
“So we're not holding back on any information,” Swann said. “I can tell you that they will get all of the information regarding any EIT [enhanced interrogation technique] that any of these accused were subjected to. That's what you have in front of you right now.”
Hearings Begin with Fireworks, End with Unusual Government Request
Pohl has a rule in the Sept. 11 case that all defendants must attend court on the first day of each hearing, at which point the judge advises them of their right to voluntarily waive attendance on subsequent days. But defendant Ramzi bin al Shibh, alleged to be Mohammed’s “main assistant” in planning the Sept. 11 attacks, was not in court Oct. 11, the first day of hearings since the end of July.
His lead defense attorney, James Harrington, told Pohl that, in fact, bin al Shibh had been transported from the Camp 7 detention facility to the Camp Justice court complex but was in a holding cell outside court, in an irritated state. Bin al Shibh has claimed for years that the guard force is pumping his cell and other camp locations with noises and vibrations to disrupt him and continue his torture from the black-site years.
“It’s reached a boiling point again,” Harrington told Pohl. “This is one of his pleas or cries for help from the court.”
The judge granted Harrington a 15-minute recess so he could talk to bin al Shibh. The attorney persuaded the defendant to come to court, but it didn’t last long. Pohl read his admonishment on the defendants' right to attend the proceedings, and asked the defendants if they understood – expecting the perfunctory “yes” response down the row of tables. But bin al Shibh said he did not understand.
“Even though we have done this every session, you don’t understand your right to be present?” Pohl asked, clearly irritated.
Bin al Shibh repeated that he did not, then launched into a tirade about how the guard force continues to harass him in violation of Pohl’s order. (The judge has never determined that the noises and vibrations are taking place, but last fall he ordered the government and the guard force to not subject bin al Shibh to any disruptions.)
“I need you to force your orders on the guard exactly the same way you force the orders on me,” bin al Shibh said.
Bin al Shibh refused to settle down, and Pohl ordered him removed from court, snapping at the guard force “Take him out!”
Bin al Shibh returned for the afternoon session, and behaved calmly.
The following morning, Harrington continued his efforts to hold the government in contempt for allegedly persisting with the noises and vibrations. Bin al Shibh and another Camp 7 detainee, Hassan Guleed, who is not facing criminal charges, previously testified that the disruptions are occurring.
Harrington also wants to call in support of the motion bin al Shibh's fellow Camp 7 detainee Abu Zubaydah – described in the Senate report as the test subject for the CIA’s enhanced techniques. The issue before Pohl on Oct. 12 was whether Zubaydah should be granted immunity when testifying, given that the government will cross-examine him about any terrorist affiliations or past conduct to establish bias.
Testimonial immunity would bar the government from using any witness statements against Zubaydah, but would not bar a prosecution from evidence gathered from other sources. The government has not charged him with any crimes but has held out the possibility it will.
The convening authority for the military commissions, which has overall management responsibility for the system, denied a request for testimonial immunity on the grounds that it was “cumulative,” or repetitive of the other detainees’ testimonies. Harrington has filed a motion asking Pohl to compel the convening authority to grant the immunity.
Harrington told Pohl that Zubaydah is in a unique position because he serves as a “tier representative,” a cell-block leader of sorts, for the group of cells where bin al Shibh is held.
“He can present the court with information not only about what we claim is happening at the camp, but also on efforts to mitigate or remove that problem,” Harrington said. “And his trustworthiness comes from the fact that the camp commander deals with him regularly on many issues.”
Harrington said the judge should consider “a progression of remedies,” the first being testimonial immunity. If Pohl decides against that, he should allow Zubaydah to testify and allow him to assert his right against self-incrimination – at which point the judge could assess his credibility.
“You could find that he's biased, you could find that he was untruthful about something,” Harrington argued. “That does not necessarily mean that you exclude his entire testimony. You may exclude some of it. You may exclude none of it.”
Harrington added that a prosecution of Zubaydah, though possible, seemed unlikely, given that the government has held him for 14 years without bringing charges.
Prosecutor Ed Ryan characterized the motion as “very high stakes."
“The evidence I can develop, if he answers truthfully, will be of such a level of bias both towards the defendant and against the United States that it would be quite chilling,” Ryan said.
Ryan argued that Zubaydah’s anticipated testimony was clearly cumulative to what bin al Shibh and Guleed said on the stand. But more important, he said, the defense motion completely “falls apart” by failing to meet the commission’s rule that the testimony be “exculpatory.”
“Nowhere in anything filed by the defense is it stated that Zubaydah would testify that bin al Shibh wasn't involved in the mass murder of 2,976 [people],” Ryan said.
He added that testimonial immunity can seriously complicate a future prosecution of a witness, based on what could be perceived as being "derived" from the testimony. Ryan said that Zubaydah deserved to be prosecuted, and that it was too early to assume it would never happen. (Last week, the multiagency Periodic Review Board for detainees announced that Zubaydah would not be released.)
“Evidence arises, witnesses step forward,” Ryan said. “Persons involved in conspiracies suddenly decide, sometimes after many years, that it's time to cooperate, and cases often come far down the road from when they actually occurred.”
“Are you kidding me?” Harrington’s responded. “With what he just said of everything that they know about Mr. Abu Zubaydah and they still haven't charged him, and he's worried about some derivative use from admissions he might make on the stand?”
Pohl has yet to rule on the matter.
The judge also declined to rule from the bench on a prosecution motion for the defense to disclose to the judge any joint-defense agreement that might exist between the five teams. On Oct. 14, the last day of hearings, Ryan argued to Pohl that, in prior phases of the case, two defense teams disclosed that such an agreement existed.
Ryan contended that Pohl should require any such agreement to be made in writing, signed and submitted to the judge, and that Pohl should then have a colloquy with the defendants (without the prosecution present) to see if they understood the terms. He said that such agreements can create conflicts if a defendant later decides to cooperate or testify for his own benefit.
“To the extent Your Honor is aware of at least a concern that the accused might be operating under a misconception, I'd submit the better practice is to handle it up front,” Ryan said.
Lawyers from multiple defense teams objected but refused to acknowledge that an agreement exists. Harrington said that any judicial inquiry into an agreement would drive a “wedge between us and our clients.”
“The hypothetical problems we’re talking about are extremely remote,” Harrington said. “There’s not a need to do anything here.”
The government wants the court to adopt a process used by U.S. District Court Judge Marilyn Hall Patel in U.S. v Stepney, a 26-defendant street gang case in the Northern District of California, in which the judge required details of joint-defense agreements to be submitted to her. Ryan said the criminal case has “no authoritative value” but believed it has “persuasive value.” Defense attorneys pointed out that the Stepney case appeared to be the only reported case in which the judge became so actively involved in reviewing joint-defense agreements.