10/25 Session: A Rare Sunday Hearing, Part I

Following a public hearing on Thursday morning, the military commission tasked with trying five Guantanamo detainees for their alleged roles in the 9/11 attacks went dark for back-to-back, closed 505(h) sessions on Thursday and Friday afternoons. The commission reconvened again two days later for a rare Sunday session, which was back on the record. Continuing what emerged as a pattern last week, the proceedings began with a sudden and unexpected detour.

Detainee Waiver of Right to be Present

With Ramzi Binalshibh as the only defendant present for Sunday’s hearing, Judge Pohl was forced off script in order to assess whether the missing detainees had, in fact, properly waived their right to be present. To verify their consent, the prosecution called an unnamed staff judge advocate (SJA)—an Army Captain—as a witness. The SJA testified that she had advised the absent defendants of their right to be in attendance and that each had waived that right. Trial Counsel Swann then walked the SJA through AE 381, which contained three-page advisements that were read to and signed by each of the absent defendants.

Several of the attorneys for the missing defendants then cross examined the SJA. David Nevin, lead counsel for KSM, began with questions pertaining to the SJA’s conversation with his client that morning but then pivoted to their previous interactions. Judge Pohl quickly intervened based on his concern that the proceedings would be derailed with a long line of questioning each time one of the accused chose not to attend. He reminded Mr. Nevin that it was the defense that had requested the waiver option in the first place and implicitly warned that, if Mr. Nevin was concerned about improper advice and/or involuntary waiver, the commission could simply require the accused to attend all hearings. Now on the defensive, Mr. Nevin responded that his questions were merely aimed at getting to the circumstances under which Mr. Mohammad declined to be present. After again threatening to revoke the detainees’ option to waive presence, Judge Pohl settled on a more pragmatic approach: “If you talk to your client and it turns out that you want to present evidence of something else, that it wasn’t voluntary, you may do that.” For the time being, however, the judge allowed Mr. Nevin to continue his cross examination but limited the subject matter to Mr. Mohammad’s waiver that morning.

Upon further probing by Mr. Nevin, the SJA explained that KSM’s stated reason for not attending was that the guard force had not told him that there was a hearing scheduled for Sunday. This led Mr. Nevin back to the disallowed subject of similar incidents in the past. After Judge Pohl once again intervened, Mr. Nevin relented for good. Before passing the torch to his colleagues, however, he alleged that “repeated miscommunications of information” from the commission to his client “have led to misunderstandings about the timing of events and, as a result, missed meetings with counsel” and missed court. Mr. Nevin concluded by renewing his request for Judge Pohl to ensure the timeliness and accuracy of communication from the commission to the detention facility.

The cross examination continued with Learned Counsel Cheryl Bormann, who represents Mr. Bin Attash. After asking the SJA only one question, however, Ms. Bormann reiterated her ongoing objection to the commission order that “allows attorneys to not testify forthrightly using their own name.” She then ceded the floor.

Counsel for Mr. Al Baluchi, Lieutenant Colonel Sterling Thomas (USAF), was the last member of the defense team with questions for the SJA, and he focused on several notes his client had written on the signature page of his advisement. Most importantly, Mr. Al Baluchi had written, “Until this moment I wasn’t aware of a session being held today.” Colonel Thomas then took the misstep of attempting to “break that down just for [Judge Pohl’s] edification.” The judge snapped back, “I don’t need edification,” and asked if defense counsel believed Mr. Al Baluchi’s waiver was involuntary. Colonel Thomas explained that his questions were instead aimed at highlighting that the Privilege Review Team (PRT) had failed to deliver documents from him to his client. After calling the PRT “recalcitrant” and “obstreperous,” Colonel Thomas requested that the commission order the PRT to “to be on site at his desk reviewing documents” over the weekend so their clients will be informed.

Without responding to this request, Judge Pohl ruled that “the four absent accused have knowingly and voluntarily waived their rights to be present today.”

Privilege Review Team, Part II

Before the tribunal could move on to its scheduled business for the day, Colonel Thomas produced both the cell phone and office number of the PRT for Judge Pohl. The judge demurred on reaching out to the PRT, given that he did not know the reason why the PRT was not available to work on weekends. Thomas noted that “non-legal, non-court participant staff” were present in the court on a Sunday and mused that perhaps the PRT had gone on a “fishing trip.” Ms. Bormann then interceded to notify Judge Pohl that this “recurring issue” had already been brought to his attention through a pending motion in the AE 018 series. She requested that the facts related by Colonel Thomas be added to that record and further noted for the commission that, as contractors, members of the PRT do not work on weekends.

Appellate Exhbit 380 (Pro Se Representation)

Without further comment on the PRT issue, Judge Pohl abruptly turned to AE 380—“the primary reason for today’s session.” The judge recapped that “at this point [] there was no request to go pro se. There was simply [the question of] [w]hat are the rules?” The commission planned to specifically address Mr. Bin Attash’s concerns about pro se representation, but given his absence, Judge Pohl refused “to delay proceedings any longer for an advisory ruling.” He further clarified: “I am now done with 380 until and unless I get a request for pro se representation. . . . Today was his opportunity to ask me questions about that. He chose not to come.” And with that, he disposed of the matter that had derailed proceedings for an entire week.

Appellate Exhibits 292 (attorney conflict) to AE 152 (confinement and competency)

Judge Pohl then attempted to move on to AE 292, which involves a potential conflict of interest for the defense teams based on a government investigation of their conduct related to communications with a foreign national. The commission previously appointed a Special Review Team (SRT) to handle this topic for the government so as to wall off the regular prosecution from any information that would be harmful to the defense. As Judge Pohl was calling for counsel to be switched, however, Mr. Harrington requested that the commission address what he deemed an ‘overlapping’ issue of AE 152. Although Judge Pohl planned to get to AE 152 after AE 292, he permitted Mr. Harrington to continue.

The defense recalled that AE 152 started with a complaint filed by Mr. Binalshibh, alleging abusive treatment in his conditions of confinement through the intentional use of sounds and vibrations to cause sleep deprivation. Over the course of the resulting proceedings, the prosecution filed for a 706 board and then requested a 909 hearing—both of which aimed at inquiring into the mental competency of a commission defendant. At some point, the government conceded of Mr. Binalshibh’s competency—and given that, along with the law’s presumption of competency—the commission ruled that it would proceed on the assumption that Mr. Binalshibh is competent to stand trial.

Mr. Harrington reminded the commission that, at the October 19 hearing, he reported a new incident and that Judge Pohl indicated the he would sign an order providing instructions for the detention facility staff. The defense then informed the judge that yet another episode occurred after court on Thursday. Although Mr. Binalshibh’s team had previously alleged that the guard force and Joint Task Force were responsible for these disturbances, Mr. Harrington said he was ready to consider that “there may well be somebody else” involved. Judge Pohl responded by inquiring how the guard force would not at least be aware of these incidents. Mr. Harrington responded, “[I]t’s a very, very sophisticated program, and it’s something the ordinary person, such as a guard outside the cell with a steel door . . . may well not know anything about.”

Attempting to move the hearing along, Judge Pohl asked what Mr. Harrington wanted other than the promised order. He requested additional time to allow for discovery—an appeal joined by Mr. Nevin after he reported a “similar occurrence” affecting Mr. Mohammad. The commission denied these requests and aimed at pushing on to AE 292. Based on the time, however, Judge Pohl decided to recess for lunch and pick up with the Special Review Team after the break.

Return to AE 292, Earlier Than Expected

After only ten minutes of recess, the commission reconvened because Judge Pohl had based the timing of lunch on an incorrect prayer schedule. He explained that proceedings would continue for another hour, and then the commission would actually break for lunch. Judge Pohl also noted that the prosecution was now represented by Special Trial Counsel Fernando Campoamor-Sanchez of the SRT.

Judge Pohl set the stage by recalling that, in AE 292QQ, he held that if there was an ongoing government investigation into one of the defense teams and if counsel was aware of the inquiry, it could create at least an appearance of conflict of interest. He further noted that this issue impacted only Mr. Binalshibh’s defense team. In response to a question from Judge Pohl, Mr. Campoamor-Sanchez confirmed that the investigation—which at various stages involved DOD, the FBI, and the U.S. Attorney’s Office—had concluded in August 2015 (as memorialized in AE 292TTTT). Further, DOJ declined to prosecute and DOD decided there will be no ramifications for security clearances. To the SRT’s satisfaction, Judge Pohl summarized: “the United States Government is taking no further action in any way, shape or form, administrative or criminal.”

The commission then turned to “another side issue”—that of Lieutenant Colonel Julie Pitvorec’s (USAF) representation of Mr. Binalshibh as independent counsel. The Chief Defense Counsel, Brigadier General John Baker (USMC), had previously filed a motion (AE 292AAAAA) indicating his concerns about a potential conflict of interest based on Colonel Pitvorec’s new billet as Staff Judge Advocate at Barksdale Air Base. Judge Pohl initially sidestepped these concerns, ruling that General Baker lacks standing to raise this issue. However, in an abundance of caution, Mr. Harrington renewed the motion on behalf of the General. Colonel Pitvorec then addressed the commission, arguing that there is no direct conflict because her new role is not operational. She further explained that retaining clients in this manner is standard practice in the Air Force. Additionally, she disclosed her current job to the accused, and he had no objections. Thus, Judge Pohl ruled that the change in assignment did not result in a conflict of interest.

AE 292’s Overlapping Discovery and Conflict Issue

Judge Pohl next turned to the discovery issues related to AE 292. Upon the commission’s request, Mr. Campamor-Sanchez rearticulated the government’s proposal: first, to see what discovery the relevant defense teams need to make out any additional claims under Weatherford v. Bursey or the like, and then to allow these teams to determine whether that discovery can go to counsel for the other accused. Further, he argued that the commission’s decision as to whether Mr. Harrington is conflict free should be handled separately from the determination of the government’s discovery obligations related to other claims. In other words, he explained, “for the commission to decide the conflict, the defense team does not need any additional discovery.”

As to the issue of conflict, Mr. Campoamor-Sanchez maintained, “There is no investigation; therefore, there can be no conflict.” Judge Pohl, seemingly accepting this position, asked Mr. Harrington if he believed there was still a conflict issue to be resolved. The defense counsel responded that he does not know the content of the ex parte filings that led Judge Pohl to determine that was a potential conflict in the first place and that he needs this information to be able to fulfill his ethical obligation to advise Mr. Binalshibh on the conflict issue. Mr. Harrington also voiced his concern that, in AE 292TTTT, each time the government stated there is no ongoing investigation, it added the “caveat” of “at this time.” Without a firmer representation that nothing is pending, Mr. Harrington argued, “I still think [the conflict issue] hangs out there.”

Mr. Harrington then ceded the floor to Colonel Pitvorec. She began by challenging the government’s position that just because there is no current investigation, there can be no conflict. There is no case law addressing investigations into the manner in which a defense team conducts its representation, she argued, and Harrison v. Motley actually suggests that a conflict of interest may arise when defense counsel is subject to a criminal investigation. Thus, Colonel Pitvorec concluded that, at a very minimum, there remains the appearance of a conflict of interest.

Citing the need not only for fairness but also for the appearance of fairness, Colonel Pitvorec then asked the commission how the defense team could not feel a chilling effect from the investigation, especially given that it might be reopened. Judge Pohl made clear he was interested only in potential remedies and asked the Colonel if the only way forward is to let the statute of limitations run. This was apparently a bridge too far. Colonel Pitvorec instead contended that, on the current record, Judge Pohl should find the appearance of a conflict and that Mr. Binalshibh should be given the choice to waive this issue if he wishes to continue.

Rounding out the argument, several of the defense attorneys added additional thoughts on the issue of discovery. Mr. Harrington again suggested that the government should turn over discovery to him before the commission rules on the conflict to allow him to better represent himself to both Judge Pohl and his client. Mr. Nevin then expressed his concern that Mr. Harrington’s team was investigated for doing something all of the defense teams are required to do in this case. Based on an October 2015 Reuters article—which Mr. Nevin described as “the sum total of what we know about this at this point”—the investigation apparently was prompted by a telephone call to Mr. Binalshibh’s brother in Yemen to convey that the defendant wants his nephew to do well in school. If true, Mr. Nevin argues that the defense was subject to investigation for conducting mandatory mitigation work of maintaining a relationship with the family. More troubling, however, is that the other teams do not have enough information to know how close Mr. Harrington came to the line. Last up, Ms. Bormann suggested that if the government was serious about demonstrating the lack of conflict, it could “simply say there will be no prosecution. They do that regularly.”

At this point, Mr. Al Balauchi’s counsel James Connell advised the commission that he had a “lengthy” argument about AE 292VV. With prayer time just around the corner, Judge Pohl decided to recess for lunch (actually, this time).