Rita Lasar and I attended the Guantanamo hearings through CCTV this week at Fort Hamilton Army Base in Brooklyn. (Each of us missed some portion of the events, but one of us was always present.) The current hearings are to review and decide motions brought by the defense in the cases of Khalid Sheik Mohammed (KSM), Ramzi Binalshibh, Walid bin Attash, Mustafa Ahmad al-Hawsawi and Ali Abd al-Aziz Al, the so-called 9/11 co-conspirators.
Monday, January 28 began the pre-trial motions. The participants are named in the attached chart of the courtroom, with the accused and counsel on the left and the government team on the right (CCTV showed the room the opposite way, from behind the judge). Open sessions were held on Monday, Tuesday and Thursday (morning only). Special closed sessions were called for when classified information was to be discussed, or when the judge called for an ex parte (pertaining to one party or not requiring the attendance of all parties) session.
As I had not attended such proceedings before this, I was struck on Monday by the realization that most of the motions (which can be seen on the OMC website) were procedural, and precedents were called up largely from federal law and also from military law. That stands to reason as the military commissions court (also referred to as the military court and tribunal) is based on the Military Commissions Act of 2009 (which replaced the Military Commissions Act of 2006) and has no precedents in capital cases, nor many precedents at all. (NB: Military commissions law, first established in 2006, is not the same as military law, and normal military courts rarely deal with anything as serious as death penalty cases.) So we are dealing with a whole new structure that has to be articulated, and sometimes invented, as it occurs. Motions that were to be heard (not all of which were taken up during these sessions) are in an attached document, previously sent by Karen Loftus. Not all motions listed were actually heard, and some were named as classified and heard in camera (private session).
Monday also provided the most significant (and startling) event of this week’s hearings: an unknown source cut off the CCTV video and audio while KSM lead counsel Nevin was referring to a motion relating to black sites. CCTV stream is on a 40-second delay to all (family members and press are in a sound-proof room watching the proceedings) to allow time to cut off the feed if classified information is inadvertently mentioned. This sent the usually calm and collected Judge Pohl into a state of high irritation, asking why this had happened as he is the only one in his court who can order the security officer to push the button that cuts off the feed, and he had not ordered it. DoJ (Department of Justice) lawyer Joanna Baltes explained that the “OCA” (Original Classification Authority) in this motion, which refers to interrogations at black sites, would be the CIA – pointing to that agency as the source. In turn, this provoked deep concern in the defense attorneys who wanted to know if the communications among themselves and with their clients – in and out of court – were being recorded or overheard. Subsequently, the judge ordered the cut audio and video to be publicly released, as there was no classified material divulged, and ordered “an undisclosed” government agency to remove any enabling equipment from his courtroom (“unplugged”).
The defense introduced an emergency motion to halt proceedings until they are assured they are not being overheard. Judge Pohl did not rule on that motion, but said that this must be resolved first thing at the next session on February 11, and it will be discussed among the parties in the interim.
In another important development, the defense leveled a charge of “unlawful command influence”, meaning interference from the government. Responding to this, the judge has ordered the “convening authority” – the Pentagon’s most senior official responsible for the war court, retired Vice Adm. Bruce MacDonald, to testify in a pre-trial hearing the week of Feb. 11.
Judge Pohl heard arguments on 15 motions and ruled on six, one was withdrawn by the defense and one was mooted. A number of other motions that are not yet decided deal with information flow among defense lawyers and their clients, and between the prosecution and defense. One defense motion asks the judge to remove the language allowing the OCA to determine whether a piece of information is allowed to be given to the defense on a “need-to-know” basis.
Another important motion dealt with the defense’s request that defense lawyers be granted 48-hour stays in the area of confinement of their clients to properly investigate the conditions of their confinement. The judge has not ruled on this as yet, and indicated that the hearing could be partially closed as classified.
It is clear from viewing the proceedings that reinventing a justice system is a long and arduous road, and thousands of motions may still be in the offing, indicating a trial date at the very minimum of a year, and conceivably much more, away. One defense attorney thinks it will be at least 2-3 years away. Most agree that if the trials had been held in federal court, they would have been over and done with by now.
Nevertheless, I found the proceedings fascinating, and hope I will be able to attend the February sessions (Feb. 11-14 – see attached) when arguments will be heard on motions to dismiss (such as “Motion to Dismiss Because the Military Commissions Act Unconstitutionally Requires the Convening Authority to Act as Both Prosecutor and Judge of the Defendants”) will be heard, as well as, perhaps, a resolution to the mystery of the government agency that bugged the courtroom!