Terry Kay Rockefeller
Most interesting was to observe the new judge, Judge Cohen, in action. He is intensely focused, amazingly polite to everyone, asks explicitly for information that he believes he needs, and seems to have altered behavior in the courtroom in a positive direction. The attorneys were consulting one another, “across the aisle” far more frequently, which seemed at times to produce forward motion (see below). Cohen also made a point of updating the gallery and CCTV viewers on the process going forward at the beginning of each day, which was particularly helpful following a closed session, that left observers with little or no sense of what had happened.
The first issue argued (AE118N) was a return to Security Classification/ Declassification, in fact the 16th separate motion on this issue. Trivett for the Prosecution argued that the Prosecution was still going to try to get all requests declassified to the extent possible within 60 days, but the process needed to be different in terms of how the Prosecution worked with the OCA [Original Classification Authority]. Jay Connell for the Defense said there were several outstanding needs and it was time to improve the entire system. The needs he cited: 1) Classification Guidance from the OCA 2) Day-to-day assistance—“human communication;” 3) A Privileged Classification Mechanism. He requested a meeting back in DC to work it out with all relevant parties and experts present. Judge Cohen agreed to a meeting.
Next was the first major issue of the week—calling witnesses concerning Judge Pohl’s decision to suppress evidence from the FBI interrogation “clean teams” as a remedy to address the Prosecution’s inability to supply sufficient discovery about the RDI program. See Carol’s article: https://www.nytimes.com/2019/07/29/us/politics/september-11-confessions-guantanamo.html?searchResultPosition=2 Defense had requested 112 witnesses, the Prosecution granted 12 of them; the Prosecution at first said it would call 6 witnesses, but later increased their number to 16. There was a great deal of discussion concerning how several of the outstanding motions before the court are significantly interconnected and what would be the best sequencing of those motions, before the witnesses appear. The judge cut through a huge amount of this by saying basically once the witnesses were on the stand they could be questioned on any topic the attorneys had good reason to believe they were knowledgeable about. (This is the kind of clarifying directive Judge Cohen seems quite willing to make.)
Next another issue concerning intrusion: Defense’s request, argued by a new attorney, Lt. Virginia Bare (on Harrington’s team) for a copy of the travel worksheet of the former CIA interpreter who was placed on Ramzi Bin-al-Shihb’s team. This is interconnected with compelling testimony by the interpreter, so the issue carried forward over several days. Judge Cohen asked Defense why they couldn’t just ask the Convening Authority for the worksheet—but after lunch Prosecution insisted the request needed to go through them. “Discovery is our call”
Following these arguments there was quite a surprising turn in the proceeding as Ed Ryan accused the Defense of making the OMC (Office of Military Commissions) an “unwitting pawn” of Ramzi Bin-al-Shihb. It got pretty heated. Ryan accused Defense of “conspiracy.” Defense accused the CA of being biased toward the Prosecution. Cheryl Borman pointed out that other defendants, not only Bin-al-Shihb, agreed the interpreter had been at a Black Site. Judge Cohen ordered an in camera review—“Any comment that the CA can be duped jeopardizes impartiality going forward. I need to see ALL the evidence. The government has 2 weeks to produce it.”
Ben Farley from Jay’s team next argued AE635—a new request for diplomatic correspondence concerning torture, specifically what the U.S. government was telling other nations was legal and proper, from 1994 to 2007. Defense’s goal would be to learn if our official position changed from when we advocated for the Int’l Convention Against Torture to after we began torturing at the Black Sites. There was much discussion of how difficult this would be and whether 1999 to 2006 were OK alternative dates. Ben (a former State Dep’t employee) pointed out it would only require a simple computer search with boolean logic of the State Dep’t records.
Then the judge brought up connections to a related issue, “Outrageous Government Conduct,” asking, “Suppose that while the government was torturing, it was simultaneously telling other governments not to do so?” Prosecution replied, we should brief Outrageous Government Conduct before we have that discussion, but then accused the Defense of filing motions in order to delay going to trial.
The day ended with Walter Ruiz making a passionate and charged speech denouncing the idea that he did not want to go to trial and repeating his previous arguments for severing his client from the other 4 defendants.
Monday night, Jay’s team had the Press and NGOs over for a short discussion. The key topic of conversation was that since 2018, the Defense has received more and more information about on-going contact between the FBI and the CIA—before, during, and after interrogation at the Black Sites. This contact, Jay asserted, carried over into interrogation by the FBI “Clean Teams.”
TUESDAY—entirely in Closed Session
I had dinner with Jim Harrington and Tammy Krause on Tuesday. Jim shared that the Prosecution’s motion AE 350TTT (Classified) accuses him of acts for which he will probably need to hire an attorney for himself.
Court opened with a report from Walter Ruiz and Ed Ryan: they have been unable to agree to a joint stipulation about the rules that apply to defendants’ laptops. This will require later testimony from the prison guard force relevant to AE530TTT concerning why Mr. al-Hasawi has only limited access to his laptop.
Next, Jim Harrington announced he would be seeking legal counsel over allegations in AE350TTT concerning the CIA interpreter. Judge Cohen then attempted to define the “crux of the issue” which he described as “How did a former CIA interpreter end up in a pool of eligible interpreters for the Defense.” In AE616W, the judge said, that is the only issue we are responding to, and we need to figure out if the testimony will be open, closed, or a hybrid of the two. And I need to rule whether the testimony will be limited to the existing motion, or if it also becomes discovery (i.e. the judge appeared willing to enlarge the scope of testimony from Perella’s ruling, which limited questions to how he was placed on a defense team and any subsequent communications he had about the work he did—with whom and about what.)
Still, several Defense attorneys argued that AE350TTT made it difficult for them to argue AE616W, since at least 2 of them (David and Cheryl), in addition to Jim, may face legal charges. Judge called a recess so that he could read AE350TTT.
Judge returned—he says he will hear discussion on AE350TTT on Thursday (in closed session). He continued, “Yes, a ‘spill’ happened [revealing the identity of a CIA interpreter in open court]. Why and how it happened can be argued later….Let me narrow it. Right now we need to focus on how he ended up working for the defense….There is too much focus on the disclosure. Focus! Whittle it down. Apply the facts to the law. Don’t let it get personal! Right now we will address whether the testimony should be open or closed.”
Background: The CMCR (Court of Military Comms Review) ruled Perella’s order to have only closed testimony was not justified. So Trivett began for the Prosecution trying to support Perella’s original ruling (closed session, limited scope). His argument was that the name of the interpreter was spilled in open court, a potentially terrible occurrence for the CIA, and the court must mitigate the impact—protect the interpreter and his family. Concerning the interpreter, the Prosecution asserted, “This was simply the act of an individual who had security clearance and wanted to work.” Much discussion of whether the 40 second delay would be adequate to protect classified information; about how video testimony with voice distortion could protect his identity; having a black screen and voice only, and finally could there be a sworn deposition rather than live testimony.
Cohen asked Trivett, “Is the U.S. government able to answer whether or not the government had anything to do with this individual being on a defense team.” Trivett said yes and we can get a declaration in 2 weeks. Judge, “And will the defense be able to see it as a classified document?” Yes.
Alka Pradhan for the Defense began by asking, “Does the interpreter’s testimony relate to a motion, or is it discovery? The history is we have encountered many obstacles to getting information about the Black Sites….If you now reconsider, go back to the scope of the request.”
COURT WAS INTERRUPTED BY THE RED SECURITY LIGHT.
Once back on the record, Cohen had Trivett state for the transcript that he was in error calling for security closure.
Alka continued, recalling that Judge Pohl had ruled that the interpreter could be interviewed on 2 points: 1) his contact with defendants at the Black Sites; and 2) the sequence of events that led to him being placed on a defense team. She stressed that this was one in a series of intrusions that call the integrity of the entire MC process into question. There has been an enormous impact on the Defense. There is healthy and important public interest in and questioning of the integrity of the Mil Comms.
COURT WAS INTERRUPTED AGAIN BY THE RED SECURITY LIGHT. This time Judge Cohen left the courtroom. While he was gone all the attorneys gathered in the center of the room and were clearly, vigorously discussing something.
When the judge returned, Alka continued—discussing existing protections, stressing both sides want to protect the interpreter’s identity, and further emphasizing interest in the integrity of the entire process. Many questions from Cohen about possible remedies.
The attorneys informed the judge that they had been discussing procedures for agreeing on when the security system in the court needed to be activated.
Alka concluded briefly.
Then Rita Radostitz argued for Mr. Mohammed’s team stressing the long series of intrusions, but saying that much has been declassified about the RDI program in the intervening years, except names, places and dates. She urged the judge to reconsider the scope and bi-furcate the session—part open/part closed.
Next Mr. Montrose argued for Mr. Bin-Attash’s team. “We do not yet know what we need to know. This interpreter lied in the past when he failed to disclose his CIA employment on his resume. We would support taking a deposition (under oath) in closed session.”
Jim Harrington declined to argue, since he may need to testify and he faces a conflict of interest concerning whether the session should be open or closed. “More and more, I become a witness.”
Walter did not argue.
In the end, sometime the next day, following further argument in closed session, Judge Cohen agreed the interpreter would give a sworn deposition in closed session. He is still considering the scope of the deposition. I spoke with Alka after the ruling, who said she expected the judge would enlarge the scope and she thought that following the closed session a redacted version of the deposition would be released to the public.
Next, AE642, which was filed by the judge, requesting an update on the status of discovery production concerning the subject of “hostilities,” a crucial factor concerning which “war crimes” can be charged in the 9/11 case. Ben Farley for the Defense reviewed the events of the years 1996 to 2001—Bin Laden’s declaration of jihad (1996), World Islamic Front statement (1998), embassy bombings (1998), USS Cole (2000), 9/11 (2001), and the U.S. military responses—Operation Infinite Reach (1999) and Operation Enduring Freedom (2001). Ben stressed that the Prosecution was just not turning over the information the Defense needs, asserting, “In short they argue about relevance, but it is not up to the Prosecution to decide what the Defense strategy should be.” Ben’s overarching point was that the state of hostilities varied tremendously over the years and that the U.S. was not continuously at war with al-Qaeda from 1996 on. There was much discussion of the Geneva Convention and the difference between a state attacking a state and a non-state actor attacking civilians, triggering events, does planning constitute a state of hostilities, etc. Trivett for the Prosecution stated the government must prove a state of hostilities and it will be based on: the Bin Laden declaration, the expansion of the Fatwah to U.S. civilians, the embassy attacks, U.S. attacks on Sudan and Afghanistan, the USS Cole attack, and 9/11. Trivett insists that there is no additional information that the Prosecution found to be discoverable. The judge then asked about Perella’s instructions concerning what the Panel would need to hear evidence on: 1) Protracted armed violence; 2) Extent and degree of organizational development of al-Qaeda; 3) Whether and when U.S. decided to use military force; 4) Number killed or wounded on each side; 5) Statement by leaders on either side. Discussion continued and in the end the judge ordered the Prosecution to deliver the materials it plans to use, and then he would anticipate motions to compel further discovery from the Defense.
Ryan and Ruiz advised that judge that they had not agreed on a stipulation so the judge ordered testimony from the Commander of the Joint Detention Group (JDF) in open session at 2PM Thursday (about access to laptop).
THURSDAY—morning was a Closed Session
In the afternoon, Walter Ruiz began his questioning of Colonel Yamashita, the Commander of the Joint Detention Group. (The lawyers in the NGO group were all highly impressed with how Walter strategized about the rules of evidence in shaping his questions and keeping the session open as long as possible.) The transcript would be worth reading. Highlights included—Yamashita saying “You kinda hear things” that JDF is not the ultimate authority. “I am aware of what we control.” Walter established that Mr. al-Hawsawi has laptop access only 4 hrs./day in two 2-hour blocks, one of which is from 2-4 AM. Yamashita maintained that is all the JDF has the capacity to oversee. Walter ended his questioning, “Is it correct that you were instructed to not acknowledge certain capabilities [to manage laptop access] in either open or closed session?” That caused a furor over whether or not to object. Walter agreed to continue in closed session.
Ed Ryan for the Prosecution asked about Yamashita’s experience and then focused on the security risks posed by defendants’ laptops.
All agreed the rest of the questioning needed to be closed.
AFTER COURT CONCLUDED FOR THE DAY THE NGOs MET WITH GENERAL BAKER
Baker emphasized the incredible history of failure to adequately hire defense staff, get clearances, and manage logistics. He called it “Stuff and People.” He also highlighted an upcoming issue—serious conflict of interest by the current CA who worked extensively with Gen. Martins in the past. In discussing the problems with OCAs (especially the CIA) he said only Congressional oversight could address the issue. Baker thought Judge Cohen has made a huge difference to the process. In response to a question about his relationship with Gen. Martins, Baker said he was still angry about the charges against him in the al-Nashiri case that had to be taken to the DC Circuit Court. “It was put on my record….I don’t really have any personal relationship with him.”
Judge’s update: the Prosecution has withdrawn AE350TTT (accusing Jim, David and Cheryl of possible security violations concerning the CIA interpreter). He reported that questioning of Colonel Yamashita was completed. Walter then offered a new filing, AE530MMMM “Communal Movement Rules” which he asserted show that Colonel Yamashita does not actually know the JDF’s own rules. Ryan questioned the authenticity of the document. The judge accepted Walter’s filing.
Then Cohen turned to the focus of the day AE639 (the Prosecution’s motion to set a trial date). The judge framed the discussion as his seeking guidance on moving to a trial. “Should we set a date (Prosecution’s position) or establish sequencing goals (Defense’s argument) with dates for each sequence?” Judge then asserted seemingly as an aside, “In principle all testimony should be tied to specific motions,” but, as for example with the witnesses in September, “circumstances may require flexibility.” Cohen said he would be taking a “new look” at the 802/505 processes. “It became apparent this week that we are not all agreed. I have to have certainty [about classification],” especially because of the witnesses in September. Therefore, as a first order of business on ultimately scheduling a trial, the judge called for an open session on AE628—the motion to compel witnesses on the motion to suppress FBI “Clean Team” testimony.
Jay Connell argued there are many motions to compel witnesses on a variety of issues—suppression but also personal jurisdiction, medical records—so the judge needs to sequence his rulings appropriately. Judge agrees that a witness may be relevant to more than one motion. Trivett for the Prosecution focused solely on motion to suppress and emphasized practicalities: having a “date certain” to call witnesses and a “discreet number of witnesses” for the Prosecution to schedule.
Much discussion by all parties concerned whether the witnesses would be limited to testimony concerning the motion to suppress or whether they could address other issues while they were on the stand. The alternative being to have them come back at a later date. Judge responded he would allow teams to file additional motions seeking greater leeway. Cheryl said she was confused. Jim said, “Judge we haven’t known you long, but I don’t believe you….When you say explore all relevant topics, I hear you saying, ‘You will not get that witness back.’”
Judge Cohen counters, “A fair trial is my goal….I am trying to make order….I may not be able to put you at ease….I envision some recall will be necessary.” He continued, Judge Pohl imposed 524 as a remedy [because the Prosecution did not turn over sufficient RDI discovery], Pohl did not find that the “clean team” testimony lacked “voluntariness.” Cohen concluded, “I still think I need to address the issues Pohl was ruling on.”
After a recess, Cohen returned and stated, “Let me be clear. I do not pre-judge anything. I will remain impartial throughout. A fair trial is the most important thing.” Then he turned to AE639.
Ed Ryan for the Prosecution argued Cohen should adopt the dates in their motion. “Dates drive will.” He said, we are in the “final chapter” of RDI discovery, asserting they had completed it but then 3 things changed: 1) Suppression of FBI testimony; 2) Defense motion that FBI/CIA is “one long investigation;” 3) Team Mohammad’s new request for Congressional testimony, which was completed. Everything will be turned over by September 1—RDI, medical records (although pseudonyms are a big problem). Litigation must stop. There are huge logistical issues concerning moving to trial, but Ryan concluded, a trial date will focus “attention, will and dollars.”
Judge then stepped into the discussion. His staff had helped with plotting out the necessities. (Here it became a bit difficult to follow because the judge was referring to “D1, D2, D3 and D4” from the Defense proposal, and those dates/deadlines were not fully explained. D1 is the Prosecution’s certifying that discovery is complete. D2 is completion of all logistical issues—housing, office space, staffing, and security clearances. I think the others refer to motions to compel, various expert testimony, other pre-trial litigation, and selecting the Panel members.) Cohen said, “Assuming D1 is complete on September 1, the Prosecution says trial can begin June 1, 2020. My projection was December 9, 2020, but I gave it an additional buffer to February 20, 2021….This requires all to work together, the MC, the CA, the DOD, the Prosecution and the Defense.”
The morning ended with an exchange between Cohen and Ryan. Ryan stuck with June 2020. Cohen asked, “Can I take you at your word that you are committing the U.S. government?” Ryan asked, “Can I get back to you about September 1?”
After lunch, the Judge observed, “We also need to take into account other trials.” He asked for input from the Defense.
Jay Connell said it was clear the MC had made a study of the Defense proposal, so he would edit his presentation and he encouraged the judge to “ask questions as I go.” Jay proposed that next year should have two weeks of court time every other month. Then looking back he asserted that discovery has been “extraordinarily rolling” and he still believed the Prosecution is overly optimistic on completion. “That is the reason the Defense proposed rolling benchmarks” and “certification” of completion rather than a deadline; that would incentivize the right things. Jay put up a calendar of past discovery and discussed the obstacles the Defense has encountered—including destruction of physical evidence, untested substitution of evidence (will it be sufficient for a fair trial?), outstanding need to debate the matter of national security privilege. Jay’s timeline had four different markers of when the Prosecution said discovery was complete: “The government won the PR battle on this issue,” but Jay asserted it isn’t complete yet.
Next Jay turned to CA duties: new “convening orders,” security clearances, new linguists, and housing (which is about to get a lot worse since the Base is taking housing back just when the need for housing will be increasing.) There need to be provisions for media presence to assure a public trial. These are not Defense responsibilities, but it’s important to discuss them.
Returning to discovery, Jay said elements of D1 include the pseudonyms of medical personnel, which may never be resolved. Also the defendants need MRIs (to determine the affects of torture).
JUST THEN THE CELL PHONE ALARM WENT OFF IN THE COURTROOM—everything paused while people searched but found no phone.
Jay continued D1 also includes physical evidence obtained in raids that must be transferred to GTMO and safely stored. “There is no system to review it once it gets here.”
Cohen focused on D2 and asked what his legal authority is to order logistical necessities. “We probably need an agreement.” Jay replied, the CA is supposed to provision this case.
AS THEY WERE TALKING ABOUT THE “BIG STUFF” THAT NEEDS TO HAPPEN, THE CELL PHONE ALARM WENT OFF AGAIN—this time the Judge left the courtroom. It turned out the person who had brought in a phone was the FBI agent who sits with the Prosecution.
Discussion between Jay and the judge continued; they tossed around various dates. Jay’s point was that the trial start date should be when D2, D3 and D4 were complete, whichever occurred last.
David Niven argued next. He spoke to Ryan’s point that victims and family members deserved a trial, but countered that it was the obligation of the Defense to “be fair and appear fair to all.” If RDI did not occur, we would not be having this discussion. “In 2003, the highest policy of the U.S. was to break the law and then cover it up.” “Classification is being used in two ways, to shield the Prosecution but also to threaten the defense….That began in 2008.” Niven then displayed Trivett’s original scheduling motion from the 2008 Mil Coms, which proposed 3 months from arraignment to the beginning of a trial. David said the way discovery is done in federal court is much more organized—he gets databases, records are dated and in chronological order. He then projected a photo of KSM’s two sons who were held and mistreated; yes the Prosecution gave him the photo, but it had no date, no further information. The logistical problems we are facing are largely the result of holding this trial in this remote location.
Cheryl Borman, started her arguments with a story that she said was not an anomaly, she had just tried to check in to fly to Andrews on Saturday but the CA had not made a reservation for her. “We don’t get discovery in a manner even close to perfect….Until the Prosecution says it is complete, I cannot begin to tell you how many motions to compel we will have to file.” Her team is shorthanded; GS hiring and security clearance is a huge problem. We need funding for expert witnesses, but the CA had defunded this. Her team has no security officer. Their offices are tiny.
Jim, just added the additional point that the AE292 investigation of his team will overlap with agents from the RDI team and it will be legally very complicated. The judge will need to recall the SRT, since one witness worked very closely with the Prosecution in the past. Jim stressed in answer to Ed Ryan’s calling for a date, “Speed is always to the Prosecution’s advantage.”
After recess for Prayer Time, Cohen stated this is a public scheduling conference and not a formal argument on a motion so he would now hear from Walter Ruiz who would speak last. Walter emphasized that the Defense had put their minds together and tried to offer as much information as possible for the judge. His main point was that the Defense has never seen “a concrete plan” concerning how we will have the “infrastructure to support this enterprise.” It’s been a “Field of Dreams argument: give us a date and it will come.” “Did the government officials who need to do the work need a date to make a concrete plan? That is troubling.” Walter asserted, Pohl wouldn’t set a date, because he didn’t believe the government had the will. “The government’s assertions are optimistic, but they are also unrealistic.” Concerning the judge’s authority—“You may not have all you need, but you can fashion a message….We should see a plan.” This is about “maintaining integrity,” Walter continued, “When you make timelines for the Prosecution, recall you are also dealing with other entities who may not have a goal of integrity or of having the process go forward.” Harrington said it best, we have “healthy skepticism,” but, “The true enemy is the degradation of our process.”
In an anticlimax, Ed Ryan then adjusted the Prosecution’s date to complete discovery from September 1 to October 1.
Judge Cohen concluded, requesting timelines for all interim clearances. Get any supplements to me and to the Defense. “An all-day scheduling session is another unusual aspect of this case….Thank you. I have tough decisions to make. The Prosecution and the Defense still need to work together.”