Last Week at the Military Commissions: The 9/11 Case is Back in Motion

The military commission in United States v. Khalid Sheikh Mohammed et al. (the “9/11 case”) reconvened for pretrial proceedings last week, meeting in open session on April 30, May 1, and May 3, in addition to closed sessions on May 2 and May 3.

The commission covered a wide variety of topics, including several motions related to government efforts to withhold or disguise government witness identities; motions related to defendant access to laptops, defense team members, and medical testing; and two motions to dismiss for unlawful influence, the first challenging Defense Secretary James Mattis’s firing of former convening authority Harvey Rishikof and the second alleging incurable prejudice to the fairness of the proceedings resulting from statements by President Trump.

Administrative Matters

At the beginning of the April 30 session, military judge Col. James Pohl swore in two new defense attorneys representing Ammar al-Baluchi: Air Force Capt. Mark Andreu and Benjamin Farley. Military commissions chief prosecutor Brig. Gen. Mark Martins raised with the court a perceived inconsistency between Farley’s written acknowledgement of his responsibilities as defense counsel and the applicable regulations and commission rulings. The government read Farley’s written acknowledgment to suggest the chief defense counsel has the authority to unilaterally excuse defense counsel, whereas the position of the commission is that good cause for excusal must be found by the military judge. Baker said that such an inconsistency can be a ground for disqualification of counsel under Rule for Military Commission (RMC) 901(d)(3). Pohl said he believed his position—that he had final say on whether or not to excuse counsel—was clear and that new counsel were expected to abide by previous orders. He declined to issue a formal ruling, however, as the issue was not properly before him at that point and any ruling would therefore amount to an improper advisory opinion. Pohl also noted that the question of who has authority to dismiss defense counsel is the subject of a current appeal in the Court of Military Commission Review, so further guidance may be forthcoming.

Next, defendant Walid bin Attash spoke up to reiterate his long-standing dissatisfaction with his defense team and his desire to have learned capital counsel Cheryl Bormann replaced. Bin Attash also renewed his request to sever his case from the rest of the defendants. Judge Pohl denied both requests.

Motion to Abate for Interference with Defendant’s Right to Counsel

Defense attorney James Harrington, representing Ramzi bin al-Shibh, presented initial argument on Appellate Exhibit (AE) 565N, a motion to abate proceedings on account of a rupture between the defendant and counsel resulting from the camp guard force’s alleged mistreatment of bin al-Shibh. Harrington described bin al-Shibh’s grievances against the guard force and increasing frustration with the lack of a remedy, and explained that bin al-Shibh has refused to meet with Harrington and other lawyers on the team because of their failure to fix the situation. Harrington remarked that “the situation is so egregious and the disruption to [bin al-Shibh’s] legal rights is so egregious that each of the members of my team have to consider what we should do about this and whether it requires us, in good conscience and under our ethical obligations, to consider” moving to withdraw. To try to resolve the matter before it gets that far, in AE 565N the defense specifically seeks from the court an order to the guard force to comply with proper procedures, as well as an evidentiary hearing and contempt proceeding regarding the alleged violations of bin al-Shibh’s rights. Judge Pohl left the motion open for the government to respond and for further argument down the road.

The court returned to the issue briefly at the end of the May 3 session, with Harrington informing the judge that he filed a new motion to hold the guard force in contempt of Pohl’s orders. He also reiterated the severity of the problem and suggested that, if left unresolved, could “clearly lead to motions to withdraw, to discharge of counsel, to severance, to … abatement of the proceedings.”

Motion to Dismiss or to Compel Production of Government Witnesses

The court picked up where it left off in January on the AE 524 series, stemming from a defense motion to compel the government to produce witnesses associated with the CIA’s post-9/11 Rendition, Detention, and Interrogation (RDI) program for pretrial interview by the defense. Trial counsel Jeffrey Groharing spoke first for the government and explained the basis for prosecution motion AE 524S, requesting a protective order precluding the broad disclosures the defense seeks. Groharing claimed that under the terms of the proposed protective order, the defense would be able to conduct “reasonable investigations” in accordance with “prior need-to-know determinations made by the original classification authority as well as orders issued by the military judge to protect classified information,” ensuring that such investigation would not “unnecessarily risk[] the lives of CIA personnel and caus[e] harm to the national security of the United States.”

After Judge Pohl clarified the different categories of RDI-affiliated individuals the protective order sets up—overt CIA employees whose true identities and involvement in the RDI program are publicly acknowledged, overt CIA employees whose suspected involvement in the RDI program is not publicly acknowledged, and covert CIA employees whose real identities and involvement in the RDI program are not publicly acknowledged—and the government’s desired protocols for defense team members obtaining information about and contacting each type of individual, defense counsel presented rebuttal arguments. James Connell, lead defense counsel for al-Baluchi, characterized the government’s position as being that they should have the authority to decide when the need to protect national-security information will prevail over fair trial guarantees. Even information that is relevant and material to the defense may be withheld in the interest of protecting individuals and information related to the RDI program. Connell highlighted inconsistencies in the government’s position and asserted justifications over the course of pretrial litigation, and described how severely the government’s proposed procedures would impede the defense’s ability to obtain critical information and witnesses. Connell also argued that the restrictions on the defense’s ability to independently investigate “create[] a conflict of interest ... and interfere[] with the execution of our professional judgment.” Consequently, Connell requested that the court either order the government to produce relevant witnesses for interview or dismiss the case on the grounds that the government’s actions violate the defendants’ Fifth Amendment due process rights and Sixth Amendment confrontation rights.

Harrington spoke next, stressing in particular the importance of having live witnesses who were affiliated with the RDI program describe the conditions in which the defendants were held and the physical abuse they suffered. Government stipulations about the defendants being tortured would not have the same effect on jurors as live witness testimony, and were therefore an inadequate substitute. David Nevin, attorney for Khalid Sheikh Mohammed, added that the government’s scheme would put “hundreds, thousands—maybe more than that—[of] witnesses off limits to us and prohibits us from even approaching them.” In effect, Nevin said, the prohibition on independent investigation of the RDI program by defense counsel would provide a compelling basis for defendants to argue on appeal (if/when the time comes) that they were deprived of effective assistance of counsel. The proper and prudent course was for the court to deny the government’s protective order and grant the defense request for access to relevant witnesses. Edwin Perry, counsel for bin Attash, stepped up next and largely agreed with the other defense attorneys, but also noted separately his objection to the government’s interpretation of relevant statutory provisions and federal court precedent. Finally, Walter Ruiz, representing Mustafa al-Hawsawi, suggested that, as an alternative to ordering production of RDI-affiliated witnesses, Pohl could dismiss the case or waive the death penalty.

Groharing responded for the prosecution, arguing that “[t]he impact claimed by the defense of this protective order is not accurate” and that requiring the defense to contact potential CIA witnesses through the government, rather than independently, is only a modest limitation which “does not place an undue burden on the defense.” He also reiterated that broad disclosure of the identities of RDI-affiliated personnel could have “very, very profound” implications for national security and the individuals’ personal security.

During the May 3 session, the court considered a new request by the government to cross-examine defense investigators who offered declarations in support of the defense motion, attesting to the likelihood of their being able to find and gain cooperation from RDI witnesses if the restrictions were lifted. Groharing argued that the defense put their credibility at issue by relying on their declarations and that the government should therefore be able to challenge the testimony. Pohl noted that the government had not issued yet a subpoena to the witnesses or filed a motion to compel with the court, and said it was improper for the court to issue the requested order without those precursor steps being taken. He therefore directed the government to follow the proper process for obtaining witness testimony and to only come back to the court when the issue was ripe.

Additional RDI-Related Motions to Dismiss and Motion to Compel

Following AE 524, Pohl heard argument on AE 548, a defense motion to dismiss for unlawful influence over defense interviews of CIA and RDI “black site” witnesses; AE 549, a motion to dismiss for government interference with defense access to witnesses; and AE 525, a motion to compel information identifying the locations of RDI black sites. Like AE 524, these motions arise in reaction to government efforts to deny defense access to information and witnesses related to the RDI program. The arguments presented largely mirrored those above: in short, the restrictions unilaterally imposed by the government on the defense’s ability to independently investigate and obtain mitigation evidence substantially interferes with the provision of effective assistance of counsel.

Motions Related to Seizure of Defense Laptops and Paper Materials

At the end of the April 30 session, the parties briefly discussed the AE 530 series, argued in prior sessions and relating to the government’s seizure of and request to forensically examine laptops previously given to the defendants to assist in trial preparation, for signs of prohibited use and/or modification, i.e. attempting to access the internet. Previously, in AE 530LL, Pohl ordered defendants Mohammed, al-Baluchi, and bin Attash to affirmatively give or deny consent to the government to examine the laptops seized from in Oct. 2017. The judge determined, however, that there was no basis for seizing al-Hawsawi’s and bin al-Shibh’s laptops and directed the government to return them. In AE 530VV, the government asks Pohl to extend the order to cover al-Hawsawi and bin al-Shibh, based on new information allegedly implicating them in the same misconduct suspected of the other three, obtained by the government after the camp guard force conducted an additional search of the two defendants’ cells.

The court returned for more extensive argument on the matter during the May 3 session. Civilian prosecutor Edward Ryan offered as evidence in support of the government’s motion a document seized from al-Hawsawi’s cell by the guard force discussing the Windows operating system and referencing the internet, and a Linux manual and discs found in bin al-Shibh’s storage bins. Pohl noted that the materials would have been screened for compliance with camp regulations by the guard force when they arrived in the mail, and questioned the government on whether it was fair to punish the defendants for possessing materials the guard force let through in the first place. Ryan responded that regardless of whether the guard force made a mistake at an earlier point in time, in light of indications that the other three defendants improperly used their laptops in a manner that created a significant security risk, the government had every right to view the materials in al-Hawsawi’s and bin al-Shibh’s possession as now suspect and seize them accordingly.

Harrington, counsel for bin al-Shibh, countered that guard force violated Pohl’s order and its own standard operating procedures when it conducted the search of bin al-Shibh’s legal storage bins and then failed to notify the defense team of everything that was seized. The items taken from bin al-Shibh’s storage bins, Harrington explained, were not contraband but rather came from the government in the case of the technical manual and the defense team in the case of the discs and other written materials. Harrington also pointed out that the guard force conducted the additional search of bin al-Shibh’s and al-Hawsawi’s cells only after the judge found no basis for the government seizing their laptops along with those of the other three defendants. “It was a concerted effort to target two detainees and to target their information, their legal materials, for additional scrutiny and additional search … once the government hadn’t gotten the result that they wanted” in AE 530LL. Counsel for al-Hawsawi stood next and largely echoed Harrington’s arguments, but also requested that the proceedings be abated until al-Hawsawi’s laptop is returned and that any forensic examination of his laptop, if ordered, be conducted by a neutral third party rather than a government expert.

Judge Pohl also addressed the fact that the government had not yet conducted the forensic examination on the laptops seized from Mohammed, bin Attash, and al-Baluchi, despite the passage of several months since the defendants consented. The government explained that they had delayed the search in the hope that Pohl would reconsider the exclusion of al-Hawsawi and bin al-Shibh and allow the government to search all five laptops at the same time. Pohl directed the government to stop stalling on the first round of examinations; if their expert needed to come back a second time to examine al-Hawsawi’s and bin al-Shibh’s laptops, so be it.

Motion to Meet with Defense Team

On May 1, Capt. Mark Andreu, counsel for Ammar al-Baluchi, presented argument on AE 566, a motion for al-Baluchi to be permitted greater opportunity to meet with cleared non-attorney members of his defense team, including investigators, linguists, paralegals, psychiatrists, and mitigation experts. Under current camp policy, an attorney or paralegal must be present for all client meetings unless the Joint Detention Group (JDG) commander—in charge of the camp guard force—grants special permission. Andreu argued that the policy significantly impeded the ability of non-attorney members of the defense team to meet and build rapport with al-Baluchi, as it was unrealistic for attorneys and paralegals to always be available at Guantanamo out of session and an increasing number of special requests for meetings were denied by the JDG commander in recent months. Cheryl Bormann, counsel for Walid bin Attash, added that defense counsel, not the government, should have control over which members of the defense team their client meets with. The general requirement that an attorney or paralegal be present is an “irrational and unreasonable infringement upon counsel’s ability to make determinations about how best to communicate with their client.” James Harrington, representing Ramzi bin al-Shibh, and Walter Ruiz, representing Mustafa al-Hawsawi, also spoke to affirm the positions of co-counsel.

Trial counsel Robert Swann responded for the prosecution, explaining that the requirement that a defense attorney or paralegal be present for every client meeting had been in the JDG standard operating procedure since 2016. The issue had not arisen before because the JDG commander rarely if ever denied the special requests from defense counsel, at least until recently. The increased denial rate which provoked the defense motion, Swann argued, was the result not of a policy change but of operational considerations, i.e. there was more demand than the guard force and facility could accommodate. The JDG commander, working with limited assets, merely chose to prioritize those meetings at which an attorney or paralegal was going to be present.

Military judge Col. James Pohl then asked a series of questions of both Andreu and Swann to better define the issues and pinpoint the rationale for the JDG commander’s denial of client meetings. David Nevin, counsel for Khalid Sheikh Mohammed, spoke next and said that “when [trial] counsel says something’s got to give, I think the obvious question from my table is, ‘Why does the thing that has to give have to be my team’s ability to provide a defense to Mr. Mohammad in a timely way?’” The government made a choice to try the case at Guantanamo and the burden of that decision should fall on them, not the defendants. Bormann expressed an additional concern that the special request requirement forces the defense teams to both name their confidential consultants and “explain to the United States Government via the JDG … what we intend to accomplish with that particular expert on a given day.” To conclude for the defense, Ruiz pointed out that if the attorneys had to constantly “fly down here and do what sometimes our other personnel can do, that could delay and degrade our ability to do other things that pushes this litigation forward.” It was therefore critical that Pohl step in and ensure sufficient defense team access to the defendants to allow the case to proceed at a reasonable pace towards trial.

Motion to Prevent Removal of MRI Scanner

Next up on the docket was AE 526D, a defense motion to prevent the removal of an MRI scanner from Guantanamo pending consideration of a funding request for additional services. Gary Sowards, counsel for Mohammed, argued that his client is clearly entitled to further medical testing, for which the MRI scanner is necessary. The government, prompted by a motion in another military commission case, had agreed to keep the machine at Guantanamo through Sept. 2018, but Sowards asked Pohl to issue an order in this case as a further guarantee. Pohl indicated that the issue was not properly before him, as the defense had not entered a formal request to the convening authority for expert assistance. After that first step, if the convening authority declined to fund the needed medical services, counsel could then seek an order from the court directing the government to make assistance available.

Motion to Compel Production of Complete, Unredacted Medical Records

The commission then turned to AE 330, al-Baluchi’s motion to compel the government to release the defendant’s full medical record without redaction of identifying information of witnesses. James Connell, lead defense counsel for al-Baluchi, argued that the government improperly redacted references to witnesses and assigned pseudonyms to others without obtaining court approval to do so, on the theory that their identities are irrelevant to the defense. To the contrary, Connell asserted, the identity of medical personnel and other individuals referenced in al-Baluchi’s medical records is relevant and helpful to the defense’s thorough investigation of the case, and the government could only redact that information with the court’s review and approval of proposed summaries. As Cheryl Bormann, supporting the motion on behalf of bin Attash, said later in the discussion, “the person who diagnosed it, saw it, felt it, and made the diagnosis, including that person’s credentials and ability to make that determination, would absolutely be material to the defense … The government is failing to make proper materiality determinations.”

Swann defended the redactions and use of pseudonyms, saying that some identifying information could not be disclosed for security reasons and some could be withheld on relevance grounds. And in certain cases, Swann contended, witnesses were left anonymous in the original medical record—it was not a decision on the part of the prosecution team.

Judge Pohl concluded by reiterating the distinction between information withheld by the government on relevance grounds, which is covered by Rule for Military Commissions (R.M.C.) 701, and information redacted due to classification. The latter category is subject to Military Commission Rules of Evidence 505 and 506, which require the government to obtain court approval for substitutions or summaries. On the other hand, the judge will not generally see information withheld under 701, except, as in this case, when the defense files a motion seeking specific additional discovery.

Motion to Dismiss for Unlawful Influence Relating to Removal of Convening Authority and Legal Adviser

Returning for the May 1 afternoon session, the parties took up AE 555, a defense motion to dismiss for unlawful influence arising out of Defense Secretary James Mattis’s firing, on the advice of Pentagon acting General Counsel William Castle, of military commissions Convening Authority Harvey Rishikof and legal adviser Gary Brown in February. Connell addressed the motion on behalf of al-Baluchi, stressing to the court that Rishikof and Brown “acted within the scope of their judicial acts, their judicial responsibility as the convening authority and the legal advisor, and were retaliated against for it.” Connell challenged Mattis’s own characterization of the circumstances in a declaration filed with the court in March, in which the defense secretary explained that he fired Rishikof on the basis of his “management/corporate decision-making, professional judgment, and temperament,” not his “performance of any judicial or quasi-judicial acts.” To the contrary, Connell argued, Rishikof’s efforts to reorganize “prosecutorial and security functions within the Office of Military Commissions [were] unequivocally … judicial acts[s]” which directly affected the 9/11 trial and others in progress. Addressing resource shortfalls and base infrastructure issues also qualified, in the defense’s view. (Connell referenced Lawfare and Scott Anderson’s article on the firings in his argument.)

Judge Pohl interjected to clarify that Rishikof’s appointment as convening authority had an indefinite term and that he served at the pleasure of the secretary of defense. Connell acknowledged the point, but analogized the convening authority to a prosecutor or other government officials who maintains immunity for acts undertaken in her official capacity and can only be removed only for misconduct. Mattis, according to Connell, did not have the authority to fire Rishikof purely on the basis of the convening authority’s “judicial acts,” including the various administrative acts which Castle and Mattis viewed as instances of mismanagement. The burden was therefore now on the government to disprove unlawful influence, i.e. improper interference with the convening authority’s autonomy. Nevin followed Connell and affirmed his co-counsel’s position, and reminded the court of AE 555H, a motion to compel discovery related to the firing decision: “how it was made, who made it, who gave advice to whom, and what advice they gave.”

In response, Swann said the defense “motion has no legs” and is “based on an unfounded belief that something sinister must be afoot because a convening authority and his legal advisor are no longer employed by the Department of Defense, their designations having been rescinded.” In the government’s view, the terminations have no bearing on the fairness of trial proceedings and, regardless, Mattis’s explanation that he fired Rishikof and Brown for inadequate performance of their duties is legitimate and dispositive of the matter. “Mr. Rishikof was designated by the Secretary, and the power to designate includes the power to rescind that particular appointment.” Furthermore, Swann argued, “there is nothing that suggests their independence was ever compromised.”

Motion to Compel Discovery Related to the Senate Intelligence Committee’s RDI Program Study Report

On May 3, Pohl heard argument on AE 286AA, a defense discovery request stemming from an analysis of the executive summary of SSIC’s report on the RDI program. The defense attorneys sought additional discovery material they believed to be relevant and which had not been provided by the government in original or summary form. David Nevin spoke on behalf of Mohammed and said his team seeks additional documentation on: who in government “knew what about the torture program and when”; specific details about how the defendant was treated in CIA custody; whether the statements the CIA obtained from Mohammed proved of any intelligence value; inculpatory identifications of Mohammed by other individuals; other plots besides the 9/11 attacks that Mohammed is alleged to have been involved in. One of al-Baluchi’s attorneys, Alka Pradhan, joined Nevin’s arguments and listed several categories of information al-Baluchi’s team has requested: details on al-Baluchi’s capture; his statements under torture and the circumstances of those statements being taken; the connections between the FBI and the CIA during the course of the RDI program; and the documentation related to the decision to transfer al-Baluchi to Guantanamo.

Groharing spoke briefly for the government, noting that it had filed a response to the defense teams’ specific requests and reiterating how the original classification authority determined the defense’s need-to-know and the proper process for the defense requesting classified witness identity information.

Motion to Dismiss for Unlawful Influence Relating to President Trump’s Statements

In AE 559, Mohammed’s attorneys request Pohl dismiss all charges on account of incurably-prejudicial remarks made by President Trump in November 2017. Specifically, while calling on Twitter for the death penalty for the alleged perpetrator of the Oct. 31 truck attack in New York City, Trump alluded to the military commissions as a “laughingstock” and said “far quicker and far greater” punishment was needed. Nevin argued that the president’s comments sent “a very clear message to the potential members and to this commission” that he wanted a guilty verdict and the death penalty imposed, and that under such public pressure jurors could not reasonably be expected to be neutral and fair. Harrington added that he hoped Pohl would use the opportunity to send “a shot across the bow” and forewarn the president and other officials of the potential prejudicial effect of their public comments on ongoing proceedings.

Robert Swann responded for the prosecution, arguing that Trump’s comments on the New York attack had no bearing on the 9/11 case and that the defense’s motion was therefore essentially frivolous. Pohl pushed back, noting that while Trump did not directly reference the current proceedings, his comments nevertheless struck Pohl as inappropriate and did “reflect an attitude by the Commander in Chief of what he views his role [] in the justice system” to be. “[W]ith all due respect to the Commander in Chief,” Pohl continued, “if he wants to interject himself into this process by making these kind of comments, it’s my job to make sure that the process is still fair.”

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The session finished with closed proceedings in the afternoon of May 3. Judge Pohl then put the court in recess until July.