Last Week in the Military Commissions, 12/4-12/8: Was There an Armed Conflict Pre-9/11?

Last week, the military commission in United States v. Khalid Sheikh Mohammed et al., which relates to the 9/11 terrorist attacks, convened for the first time in several weeks for hearings and testimony relating to several pending motions. The main focus of the proceedings was motion 502, through which the defense sought to dismiss all of the charges against two of the defendants–Mustafa al-Hawsawi and Ammar al-Baluchi–for lack of personal jurisdiction on the grounds that there was no armed conflict between the United States and al-Qaida prior to October 2001. This week’s proceedings focused on al-Hawsawi, though defense counsel for al-Baluchi participated in the examination of certain witnesses. In addition, the commission addressed motion 532, which addresses allegations that several members of the defendants’ defense teams willfully disclosed classified information on an unclassified system and thus may have their security clearances revoked. The defense teams for the defendants--including the three remaining defendants, Khalid Sheikh Mohammed, Walid bin’Attash, and Ramzi bin al-Shibh– sought to be able to disclose these developments to other members of the defense team and sought to abate the proceedings until they were resolved. The proceedings relating to each of these motions are summarized below.

Motion 502: Motion to Dismiss for Lack of Personal Jurisdiction

Proceedings relating to motion 502 began on Dec. 5, with testimony from two former FBI special agents regarding their interrogation of al-Hawsawi. Prior to their testimony, defense counsel objected that they had not yet received certain notes relating to the FBI special agents’ investigation, which were undergoing declassification review.The prosecution agreed to defer cross-examination until Thursday to allow defense counsel time to receive and review those notes.

Direct examination began with FBI Special Agent James Fitzgerald, who took the stand as a witness for the prosecution. Fitzgerald testified that he worked exclusively on the 9/11 cases from the date of the attacks through the prosecution of Zacharias Moussaoui in 2006. From 2013 to 2017, he was part of a team assisting with military commission prosecutions at FBI Headquarters in Washington, D.C. Fitzgerald also testified that in 2000 and 2001 he travelled to Yemen to support the FBI’s investigation of the attack on the USS Cole. Through Fitzgerald’s testimony, the prosecution established the basic factual record of the 9/11 attacks, including the hijackings of American Airlines Flight 11 (which hit Tower One of the World Trade Center), United Airlines Flight 175 (which hit Tower Two of the World Trade Center), American Airlines Flight 77 (which hit the Pentagon), and United Airlines Flight 93 (which crashed in Shanksville, Pennsylvania).

Fitzgerald detailed the significant amount of evidence that the FBI received pursuant to warrants while investigation the 9/11 attack. Amongst the items discussed was a document signed by the defendants–Mohammad, bin al-Shibh, Bin’Attash, al-Hawsawi, and Ali–who identified themselves as the “9/11 Shura Council.” Fitzgerald read the following from the document into the record: “So we ask from God to accept our contributions to the great attack, the great attack on America, and to place our nineteen martyred brethren among the highest peaks in paradize.” Fitzgerald also discussed a number of videos from al-Qaida claiming responsibility for the 9/11 attacks and stating the political basis for their actions.

The next day, Dec. 6, the prosecution proceeded with the direct examination of Abigail Perkins. She testified that she was a former special agent and supervisory special agent with the FBI who was also involved in the 9/11 investigations. Perkins began by reviewing details of the 1998 attacks on U.S. embassies in Kenya and Tanzania and testified that the attacks were conducted on behalf of al-Qaida. She also discussed Osama bin Laden’s 1996 declaration of war against the United States and his 1998 fatwa condemning the United States and endorsing the targeting of U.S. civilians.

Perkins testified at length regarding the FBI’s investigation into al-Hawsawi, including details of his movements and financial transactions before and after the 9/11 attacks, which included transfers of money and supplies to the 9/11 hijackers. She also discussed her interviews with al-Hawsawi in January 2007. Perkins stated that she used and reviewed, but did not rely on, cables documenting al-Hawsawi’s statements during CIA custody to prepare for her interviews. She also testified to discussing prior statements al-Hawsawi had made while in CIA custody with al-Hawsawi. The prosecution went to great lengths during its questioning to emphasize al-Hawsawi’s ability to end the 2007 FBI interview with Perkins at any time, take any breaks he required, and eat at regular intervals. The prosecution also elicited from Perkins that no one raised their voices, threatened, or put their hands on al-Hawsawi during the FBI interview.

Perkins further testified that al-Hawsawi connected the U.S. embassy bombings in east Africa, the Cole attack, and the 9/11 attacks to Osama bin Laden’s group, though he hesitated to call it al-Qaida. Perkins’s description of al-Hawsawi’s rationale for attacking the United States matched al-Qaida’s 1996 declaration of war. Perkins noted that al-Hawsawi also detailed trips he took to Afghanistan to visit training camps. Perkins further attested that al-Hawsawi provided support to specific al-Qaida members who hijacked the four planes on 9/11– including by opening up bank accounts and purchasing U.S.-bound flight tickets– though he did not know specifics about the hijackers’ operation. It was not until money began to be sent back from the United States, Perkins noted, that al-Hawsawi suspected that an operation was imminent. The day before the attack, another member of al-Qaida informed al-Hawsawi when the operation would occur.

At one point, the defense indicated its intent to move for the discovery of documents referenced in Perkins’ testimony, including CIA cables. Judge Pohl encouraged them to elicit more information regarding those documents in cross-examination to facilitate more effective discovery.

Pursuant to their agreement with the prosecution earlier in the week, defense counsel proceeded with their cross-examination of Fitzgerald and Perkins on Dec. 7. They began with Fitzgerald, focusing on the extent to which the FBI would have records of its investigation into al-Hawsawi. In addition, they inquired into Fitzgerald’s access to CIA-operated databases with information on high-value targets, including from the time period during which the CIA had al-Hawsawi in detention, and whether Fitzgerald could access non-FBI intelligence documents in preparation for his interviews. Fitzgerald repeatedly asserted that such information would not have mattered to his investigation. He also stated that, if a detainee alleged that they had been tortured, he was directed to memorialize it in a document separate from the summary document placed at the top of his interview notes. Fitzgerald asserted that this separate report would also be distributed in some fashion, though it was a top secret document. Fitzgerald testified that the only relevant statements he reviewed were statements that bin al-Shibh made while in CIA custody.

The defense’s cross-examination of Perkins similarly focused on establishing whether she interacted with the CIA, used CIA documents, asked or knew about al-Hawsawi’s treatment by the CIA, or would have been motivated to learn about his past detention. Considerable time was spent contrasting her experience interrogating the perpetrators of the U.S. embassy attacks (who were tried in federal courts) with al-Hawsawi. They also focused on whether suspects were read Miranda warnings in the embassy investigations to establish whether the government treated those cases as law enforcement actions as opposed to parts of an armed conflict. Perkins testified that, though she was unable to interview al-Hawsawi in person when he was first captured, she was able to send information and questions to the CIA personnel holding him. She testified that those questions were placed in a cable to the CIA, though a copy would also have been retained in her investigation folder. Perkins also clarified that she did not have knowledge of how he was treated while in CIA custody.

Following their cross-examination of the prosecution’s witnesses, defense counsel called Professor Sean Watts as an expert witness in the law of war. Watts testified that he was previously a judge advocate general in the U.S. Army and was currently a tenured professor at Creighton University Law School where he taught classes on the laws of war. He also testified that he previously served on a defense team before the International Criminal Tribunal for the former Yugoslavia (ICTY) from 2009 to 2012. At the defense’s direction, Watts proceeded to testify regarding certain basic concepts in the law of war, including the difference between international and non-international armed conflicts under the Geneva Conventions. He testified that individual states were often unwilling to regard situations of internal violence as rising to the level of a non-international armed conflict even where the opposed non-state actor issued a declaration of war. He further testified that the existence of a non-international armed conflict was an objective analysis, and that neither the opinions of the state nor of the non-state party to an alleged conflict would normally be given much weight. He cited the ICTY’s decision in Tadic as setting forth a two-prong test to distinguish non-international armed conflict from riots or other forms of internal violence, focusing on the intensity of the violence and the level of organization of the non-state actor. When asked about footnote 54 of the Court of Military Commission Review (CMCR)’s decision in United States v. Hamdan decision– which relayed the military commission judge’s instructions for determining when a non-international armed conflicts exists– Watts testified that it did not fully comport with customary international law as he understood. According to Watts, it put undue weight on the statements of the parties and insufficient weight on the non-state actor’s level of organization. Defense counsel then asked Watts to comment specifically on the violence between the United States and al-Qaida prior to the 9/11 attacks. He noted that it was “almost quintessentially sporadic” and that there were few operations that what would typically be considered combat. From an intensity perspective, Watts assessed that an armed conflict did not exist between the United States and al-Qaida until October 2001 when U.S. forces entered Afghanistan.

The prosecution proceeded to cross-examine Watts the next day, Dec. 8. Under questioning, he reiterated his belief that the United States and al-Qaida had “no relationship under the laws of war” prior to October 2001. The prosecution pressed Watts as to whether a declaration of war signals the start of hostilities. They also asked whether the attacks on the Cole and U.S. embassies were sufficiently destructive to constitute an armed attack, such that the United States could invoke its right to self-defense under Article 51 of the United Nations Charter. Watts indicated that the point was disputed as it was not clear that attacks by non-state actors could trigger Article 51 self-defense and was careful to point out that a determination that there was an armed attack does not necessarily mean that there was an armed conflict under international law. He also reiterated his point that violence itself must be protracted for there to be an armed conflict and that– notwithstanding the death toll from al-Qaida attacks between 1998 and 2001– lapses on the scale of “months and even years between violent events” prevented him from concluding that an armed conflict existed between the United States and al-Qaida in that period.

Once Watts was dismissed, the parties proceeded to offer argument as to their positions on motion 502. The prosecution argued that Perkins’ testimony “establishes beyond a reasonable doubt that [al-Hawsawi] aided, abetted, counseled, or commanded the September 11th attacks.” Responding to Watts’s testimony, the prosecution argued that, “there’s so much ambiguity in the law of war that it cannot be that one professor’s opinion that differs from two different Presidents and two different Congresses of different party affiliation[s]” would control. The prosecution went on to present three theories for why hostilities existed between the United States and al-Qaida prior to the 9/11 attacks: (1) that a non-international armed conflict existed under customary international law, including the standard articulated in Tadic; (2) that concluding the situation was a non-international armed conflict would be a natural and acceptable evolution of the law of war; and (3) that trying the defendants under the Military Commissions Act was a lawful exercise of Congress’s constitutional authority to define the law of nations and the president’s constitutional war powers. Finally, the prosecution also highlighted evidence tending to show that al-Hawsawi was a member of al-Qaida.

Defense counsel responded first by pointing out testimony indicating that al-Hawsawi had stated that he was not a member of al-Qaida and did not take an oath to be a jihadist. They highlighted the fact that there were no transcripts from the FBI’s interviews and that the interview was conducted in English, a language that al-Hawsawi did not fully understand. And they noted that Hawsawi’s interactions with al-Qaida were different than those of known, self-proclaimed al-Qaida members. When Judge Pohl asked whether taking part in an al-Qaida attack made one a “part” of al-Qaida for the purposes of the Military Commissions Act, defense counsel responded that “member” and “part” were synonymous.

Defense counsel then argued against the government’s theories for jurisdiction. First, they pointed out that the military commission must base its jurisdiction on the laws of war as they existed at the time of al-Hawsawi’s conduct. Second, they noted that the tribunal could not simply ignore the laws of war, as they were integral to the jurisdictional determination. Third, they argued that the government’s reliance on the CMCR’s opinion in Hamdan as a standard is problematic because it diverges from the laws of war, which is integral to other parts of the Military Commissions Act. Since the Hamdan footnote on hostilities contradicts the laws of war, it contradicts the statute. Judge Pohl responded that the defense’s argument would mean that the Military Commissions Act would apply only after the 9/11 attacks, while by its own terms the Act covers conduct before and after those attacks. The defense rebutted that Congress gave the military commission the competence to determine its own jurisdiction and that the military commission is a laws of war tribunal, not domestic law. Defense counsel also pointed to the Supreme Court’s opinion in Lee v. Madigan, which advises that ambiguous statutes granting criminal jurisdiction to a military tribunal should be read in favor of civilian jurisdiction. The defense concluded by reiterating that the defendants’ pre-9/11 acts were akin to terrorism, not acts of war, and thus are likely to have been considered law enforcement matters, not a non-international armed conflict. For these reasons, the defense contended that the military commission lacked personal jurisdiction over al-Hawsawi. Judge Pohl recessed the commission without issuing any further decisions on the matter.

Motion 532: Regarding Disclosures of Classified Information

Judge Pohl began addressing motion 532 on Dec. 4. He dismissed the prosecution and proceeded with only defense counsel and the special trial counsel representing the government in the matter present. Members of the defense teams for all five of the defendants were present.

Al-Hawsawi’s defense team began by arguing that providing filings to only those members of the defense team accused of infractions infringes on their ability to adequately defend their client. Al-Baluchi’s defense team concurred. The bin’Attash team, however, argued that it would be better to have regular ex parte updates regarding the potential conflicts so as to avoid the “impetus for actual conflict.” The special trial counsel responded that it has no issue with providing notice or pleadings to the uninvolved members of the defense teams given that “the underlying matter occurred in court and impacted all of the parties.” Judge Pohl granted permission for the entire al-Hawsawi and al-Baluchi teams to review the pleadings.

Following this review, the defense teams returned to discuss whether motion 532 could be discussed in an open hearing. The three affected defense teams argued that it should not, though there was disagreement as to whether the entire hearing should be closed. The Bin’Attash team justified closing the entire hearing by noting that attorney-client privileged materials would be discussed. The bin al-Shibh team argued that the court had authority to close all or parts of the motion 532 hearings based on Rule 6.2a, which allows closed sessions for reasons of national security or other overriding interests. They characterized discussions regarding the process of defense teams collaborating in joint motions as fitting into the work product exemption. The al Baluchi team, again - not involved in motion 532, argued against closing the hearing except where warranted by specific needs. The special trial counsel ultimately indicated that it would be comfortable with the Judge Pohl ruling just on the papers. Judge Pohl ultimately deferred a decision on the defense teams’ motion to abate proceedings due to an insufficient record. He also denied a motion to replace the special trial counsel with the regular prosecution team.

The parties then dove into the merits. The Mohammed defense team began by reviewing the government’s allegations that his team had mishandled classified information. The main thrust of its argument was that government investigations as to whether the team had mishandled classified information put members of the team in conflict with their client’s interests. This was due to the fact that the defense team was uncertain as to what would happen next in the government’s investigation, which could at a minimum result in them having their security clearances revoked. He therefore asked Judge Pohl to appoint outside counsel to advise Mohammad on this potential conflict. The other defense teams agreed, and reiterated the potential harm that would result from defense team members having their security clearances revoked.

After an extended debate about Defense Department processes for investigating spills of classified information, the special trial counsel confirmed that an initial determination had been made not to suspend clearances immediately. Going forward, the relevant Defense Department entity would continue investigating the alleged spillage in the normal course of business and inform specific defense team members if anything of concern arose during their investigation.

Two days later, on Dec. 6, the commission returned to further review these processes. The defense teams argued that they tended to show that an investigation is still ongoing.

On Dec. 8, the military commission called Daniel Purtill as a witness by video teleconference to help clarify the issue. Purtill testified that he is the deputy director of the Defense Department’s Consolidated Adjudications Facility. He affirmed that an adverse security action only takes place once a letter of intent is issued, which had not occurred in the present case. He was unable, however, to state when these investigations would be finally adjudicated. After excusing Purtill, Judge Pohl decided that: (1) the defense teams would have time to provide additional documents to the Defense Department for adjudication; and (2) he would issue an order instructing someone knowledgeable in the process to give the commission a timeline for a final decision.