Gitmo Tribunals: Al-Qaeda Defenders on the Move as Judge Knocks a Surreptitious Censor
The week of Guantanamo hearings for a quintet of al-Qaeda suspects accused in the 9/11 attacks concluded with an emergency motion to suspend proceedings amid questions of who's listening into defense conversations.
Professed 9/11 mastermind Khalid Sheikh Mohammed and his alleged co-conspirators -- Walid bin Attash, Ramzi bin al Shibh, Ali Abdul Aziz Ali, and Mustafa Ahmed al-Hawsawi -- only showed up in court one day this week, with Mohammed sporting a flame-orange beard and, unlike previous appearances, having little to say.
But the focal points of the courtroom this week weren't these notorious men facing the death penalty in the murder of 2,976 on U.S. soil. It was the civilian defense attorneys and an unseen person with a finger on the censor button who created the headlines.
On Monday, the audio feed of the courtroom proceedings -- both observers at Gitmo and in the satellite viewing room are partitioned off in case classified information is discussed in open court -- cut out for about a minute at the discretion of the "original classification authority," without involvement from the commission or the court security officer.
Judge James Pohl reviewed the OCA's reason for cutting the feed and ruled there was no justification to keep the information discussed from the public. The chopped portion consisted of one of Mohammed's lawyers moving to request that secret CIA black sites where his client was interrogated be kept intact to preserve any evidence.
"This is the last time that an OCA or any other third party will be permitted to unilaterally decide if the broadcast should be suspended," Pohl said Thursday. "The OCA, any OCA does not work for the commission and therefore has no independent decision-making authority on how these proceedings are to be conducted." That anonymous censor, of course, is suspected to be the CIA.
"The court security officer works for the commission. He is trained in identifying classified materials and is authorized to initiate the temporary suspension of the broadcast of the proceedings if, in his judgment, such action is necessary. He then will consult with the judge. The judge and only the judge will then decide on the appropriate action," continued Pohl, who was visibly irritated by the censoring.
"Accordingly, I order the government to disconnect any ability for any third party to suspend the broadcast of these proceedings and also no third party to unilaterally suspend the broadcast of these proceedings."
Fresh off a day of lobbying for 48-hour visits to understand their clients' surroundings better, Mohammed's lead defense counsel filed an emergency motion "to abate the proceedings and to not take further action in the case until we get to the bottom of not only the question of who's, what the capabilities are for listening in, who is listening on communications at counsel table, both with respect to communications with our client and communications among counsel and between counsel, but also in other settings here at Guantanamo Bay, and specifically referring to the locations where we meet with our client."
Attorney David Nevin said that concern extended to off-the-record conversations in the courtroom when parties weren't addressing the court.
"My request is that we just put the proceedings on hold until we get to the bottom of this question," he said. "…That is why we characterized it as an emergency, because we realized if we can't go forward, we can't go forward."
Given the nature of the motion, Pohl told Nevin that the defendants who made clear there's no motivating factor to come to court will have to be in the courtroom when the next week of pretrial hearings opens on Feb. 11.
The media viewing areas, both at Guantanamo Bay and the satellite location at Fort Meade, Md., are actually a mix of reporters and observers for human-rights groups that have been critical both with the long detention of the terrorists and the enhanced interrogation techniques used on the accused.
As 9/11 families gather at Gitmo and other viewing rooms at a handful of bases for each plodding step forward in the proceedings, opponents of the tribunal process decry the hearings as show trials that won't see the al-Qaeda operatives freed even if acquitted.
The military defenders are capable lawyers, but the passion in the courtroom is interjected by the civilian defense attorneys, whether it's Nevin declaring he has no fear sleeping in a cell with the man who confessed to beheading Wall Street Journal reporter Daniel Pearl or Chicago attorney Cheryl Bormann donning an abaya in the presence of her client, bin Attash, but a skirt when the al-Qaeda operatives are back in their cells.
Nevin is there under the umbrella of the John Adams Project, which is a shorter way of saying the ACLU and National Association of Criminal Defense Lawyers have joined forces to send high-profile, pit-bull defense to the aid of al-Qaeda. The project is named so after the Founding Father who defended British soldiers charged with killing Americans in the Boston Massacre.
"We took this step because of our grave concerns that the Guantanamo military commissions process does not reflect our country's commitment to justice and due process. The military commissions' authorization of the use of coerced evidence possibly derived from torture, secret evidence, and hearsay is unconstitutional and counter to American traditions of fairness and justice," the ACLU says. The organizations call the military tribunals of the enemy combatants "an egregious situation."
Nevin, from Boise, Idaho, represented and guided Kevin Harris to acquittal in the deadly 1992 Ruby Ridge siege and secured an acquittal for Sami Omar Al-Hussayen, a Saudi national brought up on charges of providing assistance to terrorists. For the latter case, Nevin received an award from the ACLU.
The John Adams Project's supporters include former President Jimmy Carter and former Attorney General Janet Reno.
"I applaud efforts of the ACLU and the National Association of Criminal Defense Lawyers to ensure that the principles of our country are not compromised and the Guantanamo detainees are afforded a fair trial with basic rights of due process," Carter said in a statement of support.
Nevin constantly drops the word torture in his arguments, foreshadowing how the defense will use the admitted waterboarding of Mohammed and next week's defendant -- Abd al-Rahim al-Nashiri, accused mastermind of the 2000 USS Cole bombing -- to try to exonerate their clients.
"He was tortured and that torture that was inflicted upon him bears on many things that are related to this case," Nevin said Tuesday in arguing for overnight visits. "One of the primary reasons, in my mind, for the request for 48 hours of continuous presence at the facility, is for us to be able to observe, document, understand, be able to discuss with the court, if it becomes appropriate, exactly what life in these camps is like, and particularly considered in the context of a person who was tortured."
Al-Nashiri is represented by Indiana attorney Richard Kammen, who has called the military proceedings "hopelessly unfair" and referred to his client, implicated in planning multiple attacks outside of the deadly Cole assault, not without “heart or feeling.”
For his part, the al-Qaeda member refers to his lawyer as "Mr. Rick," having explained to the judge previously that he has problems pronouncing Kammen's last name.
Kammen today followed Nevin's motion to suspend proceedings due to concern about the security of defense communications. It's the latest in a flurry of motions filed over the past several weeks before court convenes Monday, including one that moved to dismiss the case from the military tribunal because Congress and the president "impliedly made a political judgment regarding the existence of hostilities through its recognition of military commissions as a forum for adjudication of violations of the laws of war occurring 'before, on, or after Sept. 11, 2001.'"
Saying that he was also subjected to mock execution during his black site interrogations, opponents of the al-Nashiri prosecution will be pressing to allow his recantations of torture. Kammen has compared the military commissions to the Spanish Inquisition and Soviet show trials, has tried to replace the military judge on the grounds that a jurist paid by the Pentagon couldn't rule fairly, and will keep moving for dismissal.
Next week's revisiting of the USS Cole attack, in which 17 were killed and dozens injured in the port of Aden, often falls in the Gitmo shadow of 9/11 and KSM, but the victims and families deserve no less justice.
And to opponents of the military tribunal, the al-Nashiri case offers a platform as they try to paint an al-Qaeda commander as the victim and the U.S. government as the torturer.
Stay tuned to PJM for ongoing coverage of the Guantanamo tribunals.