KSM Military Commission #38 Part 1 September 8 – 10, 2019

Trial Judge = Col. Shane Cohen

Prosecution = Gen. Mark Martins, Clay Trivett, Ed Ryan, Christopher Dykstra +

Defense teams:

5 defendants (9-11 accused)                     LC = Learned Counsel

KSM = Khalid Sheik Mohammad   LC = Gary Sowards (formally David Nevin) +

WBA = Walid bin Attash    LC = Cheryl Borman +

RBS =  Ramsi bin al Shibh       LC = James Harrington +

A3 = Ali Abdul Aziz, (or Amar al Baluchi)     LC = James Connell +

HAW =  Mustafa al Hawsawi       LC = Walter Ruiz +


Sept 9-13, 2001 is week 1 of a 3 week session (the first) in the 9-11 case.

Sunday, Sept 8

Tour of the ELC (Expeditionary Legal Complex) or … the courtroom. Given by Col. Jacobson

Court was built in 2007/2008 with architectural plans from William and Mary College. This past year has gotten a 14 million dollar ‘face lift’, including 5 new defense trailers, an IT trailer, an FBI evidence trailer etc. The courtroom must balance national security vs transparency. Everything said is translated into the detainee’s language. “Things are in the works” about getting more transparency for the upcoming trial.


Will the panel (jury) be sequestered? Something the judge is working on; they’ll take direction from the judge. Unclear how this will work but can’t really sequester people for 9 months

Q about scheduling – to which Carol Rosenberg informed us that the scheduling order was on the NYTimes website, but not on mc.mil as yet

How many NGO observers at trial? “same number”

How many military commissions are using this courtroom? Hadi – supposed to start Sept 2021. Nashiri still lots being figured out


Monday, Sept 9

All defendants present. Bin Attash (WBA) now allowing his lawyers to sit at Table #2

Gen Martins reports “Pentagon site up and running” (this site is purportedly ‘public access’)

Judge Cohen starts by advising all defendants of their rights to which all respond “Nan” (Yes) when asked if they understood.

Cohen provides an 802 (closed hearing) summary (which apparently is in the regs as necessary as soon as court resumes open session). Judge Cohen is unfailingly polite; calls the defendants “sir”; apologizes to Nevin for calling him Nevins; thanks the Government for further classification guidance saying Government “owns classified information” and is its “primary protector”. Requests more details about the Pentagon being ‘available’. Interested in “maximizing public access, and facilitating access in areas other than the east coast. Says he is awaiting guidance from the Government on that particular issue.

Denny LaBoef, who has been on the KSM team for years pro bono through the John Adams project – is sworn in as civilian defense counsel for KSM. Gary Soward will move to learned counsel, and David Nevin will remain on the KSM team pro bono (also through John Adams project)

Housekeeping discussion

Connell: “on island media facilities are essentially closed”; physical issues with equipment and power outages

Some brief discussion of AE 644, AE 655, AE658, AE 118 U / V    In the back and forth between Connell and Trivett, it’s clear that the parties are working together more; less oppositional behavior. Cohen actively and vocally encourages this.

Recess: wherein HAW returns to Camp 7

Judge Cohen brings up types of markings on documents to be displayed next week and reminds al parties that documents do NOT have the 40 second time delay. “trusting that both sides will make this work”

Cohen asks for AE523 [Motion to Compel Identities of Witnesses] status update: issues regarding the identities of CIA agents, medical personnel, Bureau of Prison personnel – how these identities will be classified or not. Connell (DEF) and Dykstra (PROS) offer the primary arguments.  27 thousand new pages of evidence has been turned over to defense teams in the past month. Defense teams for KSM, RBS and HAW claim they still do not have not have all medical records for their clients. My take is that the two sides have been arguing about medical records for at least 5 years – time to make a ruling, turn over what’s to be turned over, and be done with it.

AE658 [Govt Notice of Classification Guidance] Connell starts by saying that the recent declassified information gives a lot of facts that were not known before ie;  ECHO 2 (at Gitmo) was a black site and HAW, RBS and Nashiri were detained there, and that FBI agents were detailed to the RDI program. Says PROS in their latest ‘classification guidance’ document makes clear Defense can’t investigate sources or methods, but he has concerns about what the PROS has said is totally off limits. Connell wants to ask FBI agent Fitzgerald (next week) similar questions to those asked by a grand jury in NY in an unclassified setting. Other defense join in saying rules are constantly shifting; challenges to the ex parte discussion between PROS and judge; guidance is not enough – why not another protective order? Trivett for the PROS ends the morning by saying the Government is “completely unapologetic” – rules didn’t change; now making them more explicit. Cohen encourages the parties to get together to discuss.

AE502 Defense Motion to Dismiss for Lack of Personal Jurisdiction due to Absence of Hostilities – the HAW team argued this in 2017, which Judge Pohl denied; AAA team now challenging. PROS believes there has been hostilities since 1996 because it considers the Congressional declaration of hostilities re: 9-11 retroactive. AAA believes the 2001 AUMF transferred authority to the executive branch, and the AUMF was passed by Congress after 9-11.  There was also some argument between differing rulings made by Pohl in AE502 and Judge Parrella in AE617 (gets very intricate regarding laws of war). PROS says these two rulings can live “in complete harmony” Trivett reminds all the 5 defendants are charged with “aiding, abetting and conspiring with the 19 hijackers”. Cohen questions Trivett’s statement “we believe 9-11 in itself triggered the laws of war”. Cohen ends the day by saying “ … and I will decide what I believe to be in the interest of justice”.

Tuesday, Sept 10 – closed session


****  from John Ryan at Lawdragon

Guantanamo Naval Base, Cuba – For the past few years, lawyers defending the accused Sept. 11 conspirators have taken public swipes at the narrative that the FBI was separate from the controversial CIA program that subjected their clients to years of abuse at overseas black sites before they arrived at Guantanamo Bay in 2006.

Now, at the start of the 38th pretrial session in the case, defense lawyers are confident that any last shred of that narrative has disappeared. James Connell, who represents Ammar al Baluchi, said in court Monday that the FBI had detailed its own agents to the CIA’s “Rendition, Detention and Interrogation” or RDI program – a fact recently declassified by the government. He also said the government recently had declassified the fact that a location on the Guantanamo Bay detention facility was used as a black site between 2003 to 2004 – and later repurposed for FBI interrogations after the CIA black-site program ended.

“Those are big declassifications,” Connell told the judge, Air Force Col. Shane Cohen.

They come just as Connell is set to move forward presenting witnesses to support his motion to suppress statements that his client made to FBI interrogators in 2007, after he and his co-defendants arrived at the Guantanamo facility from the overseas CIA sites.

The government claims that the defendants’ incriminating statements at Guantanamo were voluntary and thus should be admissible in court, as the interrogators used conventional interviewing techniques without the abuse used at CIA black sites. But Connell said after Monday’s session that the new disclosures on CIA-FBI coordination significantly strengthened his position that the statements were, in fact, obtained by torture as part of one large interrogation program spanning the black sites and Guantanamo Bay.

“It’s a level of formality, detail and information-blending between the FBI and the CIA that we never knew before,” Connell told reporters.

He said defense teams have learned more about the “number, depth, timing and specifics” of questions that the FBI submitted to the CIA to ask detainees when they were held at the black sites. Earlier in the case, in December 2017, it was revealed in court that the CIA also played some type of role in the FBI interrogations at Guantanamo in 2007. For example, FBI agents were required to use CIA laptops in writing up their notes, and they had to put detainee claims of abuse in a separate record-keeping system; FBI agents also had access to CIA databases.

Cohen, who was only assigned to the case in June, is presiding over the first-ever three-week session in a military commission that dates to the May 2012 arraignment. The first week is taking place during the 18th anniversary of the Sept. 11 attacks. The second two weeks, which start on Sept. 16, are slated for testimony from FBI witnesses involved in the interrogations of the defendants at Guantanamo Bay, as well as other witnesses.

This summer, Cohen did what his two predecessors did not – set a trial date. Prior to the session, several defense lawyers suggested that September’s mammoth hearing might serve as an early stress test to see if the January 2021 zero hour is realistic.

More immediately, this session will shed light on how the all-important suppression hearings will unfold given the case’s two unrelentingly complex traits: five defense teams with differing strategies, and an incalculable mass of unclassified and classified evidence, significant portions of which were just recently turned over to defense teams.

Since the late July session, the defense teams have received more than 27,000 pages of additional discovery. Though Cohen is allowing all five defense teams to question the witnesses, Connell’s team – the first to file its suppression motion and list preferred witnesses – might be the only one to actively participate in the questioning.

The declassifications of the FBI’s more formal role in the CIA program were provided to defense teams late last week as part of a 25-page classification guidance, which set forth what defense lawyers can and cannot say when eliciting testimony from the upcoming witnesses. In this document, Connell argued to Cohen on Monday, the government had taken away more than it gave by invoking the national security privilege to prevent questioning on significant amounts of information relevant to suppression, including the identities of CIA personnel, dates of certain events and locations of black sites.

Connell said the government has barred defense teams from asking questions of witnesses on these topics not only in the public sessions but also in the classified sessions, which are closed to the public and the defendants. (Most hearings in the case have a closed session devoted to classified arguments.)

“There’s an enormous amount of information that is just being taken off the table,” Connell said.

He contended that the government was making critical information “off limits to the judicial process.”

Prosecutor Clay Trivett pushed back, noting that the government previously had asserted privilege over CIA identities, dates, black site locations and sources and methods of intelligence gathering. He said it was obvious that defense lawyers could not ask questions about these topics.

“The rules didn’t change,” Trivett argued.

He also said that defense lawyers could, in a closed session, ask questions about topics like black site locations with their own non-governmental witnesses, such as defense investigators.

In his brief tenure, Cohen has indicated numerous times that he favors dialogue within the adversarial process and encouraged Trivett and defense lawyers to iron out more clarity in the ground rules before next week.

Regardless, the first suppression hearing will take place under some degree of uncertainty. Under a regime inherited by his immediate predecessor, Cohen is using these sessions both as an actual suppression hearing and as a test of sorts to see if the suppression dispute can be fairly argued by defense teams given the restrictions they face.

In late 2017, the government barred defense teams from independently contacting CIA personnel suspected of participating in the black site interrogations. Defense lawyers contended that this stricture was blatantly unconstitutional and prevented them from doing the most important function of their jobs – to investigate the case.

The first judge on the case, Army Col. James Pohl, determined that the investigative restriction prevented the defense teams from being in a sufficient position to prove that the FBI interrogations should be suppressed. He decided to exclude the FBI statements before having a suppression hearing as a sanction against the government. But his short-term successor, Marine Col. Keith Parrella, wanted the military commission to at least try out a suppression hearing before making that determination.

After Parrella left the case earlier this summer, the task of holding the test-case suppression hearing fell to Cohen. The new judge has said repeatedly that he is open to implementing his own sanctions against the government.

In court on Monday, Connell questioned how – in order to prove the unfairness of the proceedings – defense lawyers should simultaneously elicit information from witnesses while establishing a record for the types of information they are prohibited from seeking. Cohen suggested that defense lawyers should submit a list of questions they would want to ask but can’t.

Connell’s preferred method is to ask witnesses about prohibited topics after first reminding them to wait for government objections; let the government object; then Cohen can consider and sustain the objection. This would be somewhat cumbersome but establish a clear record, Connell said.

Gary Sowards, one of Khalid Shaikh Mohammad’s longtime civilian lawyers, praised Connell’s intelligence and work ethic but argued that defense lawyers should not be forced into workarounds so that the government could continue its cover-up of the torture program.

Monday began with Sowards taking over the “learned counsel” role from David Nevin. The Military Commissions Act of 2009 requires defendants facing the death penalty to have lawyers experienced in capital cases. In putting his qualifications on the record to Cohen, Sowards said that he’s worked on 45 death penalty cases over four decades, including the defense of “Unabomber” Theodore Kaczynski.

In a brief colloquy with Cohen, Mohammad said he was “OK” with the change.

Outside court, Nevin told reporters that he wasn’t going anywhere and had no plans to depart the case before trial. Nevin, 70, is the name partner of Nevin Benjamin McKay & Bartlett, based in Boise, Idaho – while the Military Commissions Defense Organization is based near Washington, D.C. For him to review the classified evidence needed to defend his client, he was required to travel to the D.C. area or have a secured courier bring the evidence to him. He said the process was difficult on him and expensive for the government. Efforts to establish a secure terminal where he could access classified evidence in the Boise-area failed, Nevin explained. Sowards is based In New York.


Filed in: Colleen Kelly, Guantanamo, Guantanamo & Military Commissions, PT Member's Visit and Discussions on Guantanamo, Restoring Rule of Law, Rule of Law: Guantanamo and Civil Liberties

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