Defense lawyers James Connell (left) and Walter Ruiz take questions from reporters at the Camp Justice media center before the start of December’s pretrial hearing. Ruiz wanted the hearing postponed due to the health of his client.
Guantanamo Naval Base, Cuba – No dispute in the Sept. 11 military commission has caused greater friction between defense counsel and prosecutors this year than allegations that the government improperly destroyed a CIA black site, possibly with the judge’s collusion.
That tension resurfaced this week when defense teams asked the judge, Army Col. James Pohl, to order the government to provide more information about how it sought and received the judge’s approval in June 2014 to destroy – or “decommission” – the black site, without defense teams learning about the order for another 20 months.
“I’m just looking at the door, I don’t know what’s behind it,” David Nevin, the lead attorney for Khalid Sheikh Mohammed, argued Wednesday morning in the Camp Justice courtroom. He added that all he knew was on the other side of the exit door: “No more black site.”
Defense lawyers for the five men accused of planning and financing the Sept. 11 terrorist attacks say with the site's destruction they have lost access to some of the most important evidence of torture that could mitigate against the death penalty if their clients are convicted. All five defendants spent multiple years at CIA black sites before their transfer to Guantanamo Bay in September 2006.
Earlier in the case, in December 2013, Pohl issued an order preserving any overseas detention facility at the request of the defense teams. The lawyers now argue they should have had a chance to challenge the government’s subsequent motion to destroy the black site.
Prosecutors, however, contend that the black site was adequately “preserved” for the case when Pohl approved the use of photography as a substitute form of evidence to the actual physical site; the defense teams now have those materials in their possession. (The location of the site has not been revealed publicly or to the teams.) Prosecutors say that the delay in distributing Pohl’s order was an honest mistake resulting from confusion about who was to notify the defense teams.
Nevin, along with the lawyers for co-defendants Walid bin Attash and Ramzi bin al Shibh, are seeking an extraordinary remedy for the destruction – asking Pohl to remove both himself and the prosecution team from the case, which would further delay an already protracted and complex criminal proceeding. The commission has been mired in pretrial litigation since the May 2012 arraignment; a trial date is still not set.
But before they argue the substance of that motion, defense lawyers have asked for additional discovery on how the government destroyed the site without them knowing.
“We need to answer the question: 'What happened?'” James Connell, the lead attorney for Ammar al Baluchi, argued.
The al Baluchi team supports the removal of the prosecutors from the case but wants more information before deciding whether to also seek Pohl’s removal. Lawyers for the fifth defendant, Mustafa al Hawsawi, do not want the judge or prosecution removed from the case, but plan to pursue different remedies later in the litigation.
Prosecutor Robert Swann argued that there was no need for additional discovery because the government went through the standard process for seeking approval of substitute forms of classified evidence. The process in the military commissions system is similar to that used in federal court cases under the Classified Information Procedures Act, or CIPA.
Swann insisted that “nothing was destroyed” because of the judge-approved preservation through photography, which he described as a “good product.”
Nevin was angered by the notion that photographic evidence of the site somehow meant the site itself was still in existence.
“They destroyed it, they tossed it out the window,” Nevin said in a raised voice.
In arguing a separate motion on Wednesday, the five defense teams also asked Pohl to order the government to produce the full Senate report on the CIA’s Rendition, Detention and Interrogation program, commonly referred to as the “Senate Torture Report.”
A 500-page, partially redacted executive summary of the report – which is more than 6,000-pages long and based on six-million pages of underlying documents – was released two years ago. Defense lawyers believe they should have access to the full report; for now, before that argument is hashed out, they want Pohl to get the commission's own copy and preserve it under seal for safekeeping before the change in administrations.
The CIA’s inspector general confirmed earlier this year that his office's copy of the report was inadvertently destroyed, Connell noted. He added that there is evidence that the Trump administration may be “hostile” to the report.
The chief prosecutor, Army Brig. Gen. Mark Martins, refused to say whether the Department of Defense had a copy of the report, despite repeatedly being asked by Pohl to confirm one way or the other.
Martins would only say that the report is a “legislative document” and that his team has done its review of the report in a secure room at the Senate.
Pohl did not rule on the CIA evidence motions on Wednesday, which was the last day of open court session for the week. The next pretrial hearings are scheduled to start in late January.
The December session was the 19th round of hearings in the case. With pretrial hearings scheduled for all of 2017, a trial is not expected to start until at least 2018.
ATTORNEY FOR AILING DEFENDANT ANGERS JUDGE
If Walter Ruiz, the lead attorney for al Hawsawi, had his way, Pohl never would have gotten to the arguments on the CIA evidence. He wanted Pohl to postpone the entire session until his client more fully recuperated from surgery performed on Oct. 14 to alleviate pain from rectal issues.
Pohl tackled the issue at the start of the week to see if the December session could move forward.
Al Hawsawi’s lawyers say that his problems are caused by forcible sodomy – including medically unnecessary rectal probing, hydration and feeding – inflicted on him during the CIA torture regimen before he arrived at Guantanamo Bay in 2006.
The exact nature of al Hawsawi's condition remained in dispute Monday. The defense said the surgery was intended to fix a rectal prolapse, a condition in which the rectum sticks out of the anus, while the government portrayed it as a hemorrhoid.
Either way, Ruiz told Pohl on Monday that his client needed narcotic pain medication and that bowel movements caused his client to bleed from the wound and suffer tremendous pain.
Pohl ordered the government to produce as a witness the Senior Medical Officer of the Camp 7 facility, where al Hawsawi and other “high-value detainees” are held. The medical officer testified Monday that al Hawsawi was well enough to sit through court proceedings and attorney meetings. He also testified that most patients undergoing a similar surgery would be farther along in recovery than al Hawsawi, a frail-looking 48-year-old Saudi who weights about 115 pounds.
But the judge did not allow Ruiz to question the medical officer about whether al Hawsawi’s timeline for recovery would be complicated by his past treatment by the CIA.
“This man was sodomized,” Ruiz argued to Pohl. “He is not the average individual.”
Pohl sided with prosecutor Swann, however, finding the information was not relevant.
“What happened ten years ago is not what's before me,” the judge said. “What's before me is his current medical condition.”
Ruiz did not agree with the medical officer’s assessment. However, he did not have his own independent medical opinion ready for court because a motion was still pending about whether the team could share the detainee’s medical records with pro bono experts and consultants.
“Okay, you have what you have,” Pohl said.
“Great system, judge,” Ruiz said sarcastically. “Great system.”
An angered Pohl said that he would not tolerate disrespectful comments about the commission. Ruiz shot back that the whole system was disrespectful.
“It is disrespectful to our flag, and it's disrespectful to our system of justice,” said Ruiz, who served 21 years in the Navy and remains a commander in the Navy Reserve.
When Pohl told him to sit down, Ruiz said he wasn’t done with his cross-examination of the witness.
“You are done for now,” Pohl said. “Sit down.”
“I like the way this works,” Ruiz said before returning to the al Hawsawi team table near the back of the courtroom.
The court sat in tense silence for a minute as Pohl looked down and paged through a document. Observers speculated that the judge may have been reading the commission rules for contempt, or perhaps just letting some steam blow off.
Eventually, Pohl allowed Ruiz to finish his cross-examination after first having Swann finish with the government’s remaining questions of the witness.
After closing arguments on the motion, Pohl ruled from the bench that al Hawsawi’s team did not meet its burden to delay the proceedings.
Still, another thorny issue remained. All the defendants are required to come to court on the first day of each session but can choose to skip the rest of the days so long as that waiver is voluntary. If al Hawsawi told the Camp 7 attorney on Tuesday morning that he was not coming to court because of his medical condition, the waiver would not be voluntary – and he would be forced to attend. Pohl told Ruiz at the end of Monday’s hearing to make sure his client understood that the wavier had to be unconditional.
“This is not a true choice,” Ruiz told reporters after the hearing. “It’s like a gun to the head.”
Ruiz said he told al Hawsawi to do what was "best for him." As it turned out, al Hawsawi signed the waiver to be absent from the proceedings on both Tuesday and Wednesday mornings, without any qualifications.
With the al Hawsawi dispute, Swann succeeded somewhat in battling back what he terms the defense-side “narrative” that relentlessly focuses on the past treatment of the detainees. Swann and other prosecutors like to remind the court that the case is about the mass murder of civilians.
On Tuesday, the prosecutor seemed to open a new line of the counter-narrative in response to defense claims that the government was over-classifying information related to the CIA program.
Marine Maj. Derek Poteet, the military defense lawyer for Mohammed, told Pohl that the government can’t classify information because it’s embarrassing or to cover up crimes.
“The black site detention program and the torture was illegal,” Poteet said. “It was a violation itself of United States and international law.”
Swann told Pohl that he “took offense” to what Poteet said. He said President Bush called on “good men and women” to do “a terribly difficult mission” after the Sept. 11 attacks.
“Despite what one might think, I think and I know that lives were saved, and I sleep comfortably because of the very people that counsel impugned,” Swann said.