Yesterday at the Military Commissions: the 9/11 Case

As readers likely know, earlier this week, pre-trial motions in Khalid Sheikh Mohammed et al. hit an unanticipated obstacle when one accused, Ramzi Binalshibh, indicated that he recognized one of his translators from a past role as an interpreter at a CIA black-site. Given the recent uproar over the revelation that the FBI had been questioning members of the defense team, government interference of this sort at the military commission trials is already a particularly sore point. Monday’s proceedings therefore adjourned in a hurry as parties rushed off to figure out what had happened; the investigation, and filing of relevant legal papers, occupied all of a hearing-less Tuesday. That brings us to Wednesday---some courtroom highlights of which I note below. Yesterday, as proceedings resumed at 9.02 am, Chief Prosecutor Mark Martins offered the prosecution’s perspective: he insisted that the interpreter was “at no point during his service with the defense” working with the CIA, and that his work with the defense in no way “resulted from any action by any agency of the executive branch to gather any information regarding defense activities.” He also explained that the prosecution had filed a motion (and a draft ruling) suggesting that, to the extent the issue needs to be looked at further, the military judge (Army Col. James L. Pohl) should obtain the record of how the Binalshibh team had requested and vetted---and failed to notice this key fact about---the interpreter in question. Lawyers for each of the defendants expressed opposition---and various degrees of outrage---over the Martins’ statement and motion. Collectively, they insisted that Martins’ statement not be taken at face value and that they be given the time to investigate and perform their due diligence. They also argued that classification had hindered effective vetting efforts and that the incident had caused severe harm to trust on the defense team, and asked for time to pursue the issue and file their own pleadings. Judge Pohl reassured them that he wouldn’t rule without letting them have their say, and scheduled a classified hearing in which to address some of the particular issues surrounding the interpreter. At 9.32, Judge Pohl announced a break, and despite the objections of some members of defense, confirmed that proceedings would reconvene to address other items. When proceedings reconvened, the cast of characters, and the issue under discussion, changed. The prosecution had been replaced by a “Special Review Team” (“SRT”), a cadre of walled-off Justice Department lawyers. Binalshibh’s independent “conflict” lawyer Lieutenant Colonel Julie Pitvorec had joined the proceedings as well. The arguments at this hearing centered on the older conflict of interest issue--the one created when the FBI questioned and attempted to recruit civilian members of the Binalshibh defense team.  From the start, SRT lawyer Fernando Campoamor-Sanchez pressed his team’s request for a closed hearing---one at which with only the SRT and Binalshibh’s recently appointed and briefed “independent counsel” present---to discuss classified material relating to the potential conflict. Counsel for the various defendants objected strenuously. Citing both constitutional and statutory authority, all five defense teams (James Connell for al Baluchi, James Harrington for Binalshibh, David Nevin or KSM, Cheryl Bormann for Bin Attash, Walter Ruiz for Hawsawi, and Lt. Col. Pitvorec herself) insisted that holding a closed hearing without the defendant or his civilian attorneys (particularly “Learned Counsel,” or civilian lawyers with experience in complex capital cases) would be a violation of the defendant’s right to counsel and to be present at hearings concerning himself. It would also violate the right to a public trial, a right adhering both to the defendant and the American public. Furthermore, they argued, a closed hearing makes particularly little sense given that in the the future Binalshibh would be asked to make a “knowing and intelligent decision” about whether to waive any conflict in his defense team. If the issue is argued in closed hearings, Binalshibh would be forced to make that decision without knowledge and without the informed advice of civilian counsel--that’s hardly an informed decision. The lawyers for Binalshibh’ co-defendants (and especially James Connell III, an attorney for Ammar al-Baluchi) insisted that the factual and legal issues at play were so intermixed with their own clients that holding a hearing without them present would violate their clients’ rights. Much of the defense’s arguments on this point revisited the history of the FBI infiltration of the defense team, emphasizing that their teams too were enmeshed in the FBI’s snooping. Counsel for the co-defendants also reminded Judge Pohl that his order severing Binalshibh’s trial from the rest of the defendants was currently in abeyance, and that he had in the past rejected motions for similar closed hearings on defendant Al Baluchi’s mental health.  Furthermore, counsel also insisted that the SRT’s mention of memoranda of understanding (“MOUs”) that they had failed to sign as a justification for a closed hearing was a red herring---MOUs would make no difference in what the SRT allowed them to see anyway. (Execution of an MOU is, under commission rules, a condition precedent to the receipt of certain classified discovery from prosecutors.) Finally, a closed hearing, the multiple defense lawyers claimed,was simply not justified by national security---under statute, the only acceptable grounds for a closed hearing. (Khalid Sheikh Mohammed’s Learned Counsel David Nevin also objected repeatedly--both at the start of the hearing and near its conclusion---to the discussing the matter while the more recent issue of Binalshibh’s interpreter remained largely unaddressed. He was overruled.) In response, Campoamor-Sanchez argued that the legal issue before the court is a narrow one, limited to Binalshibh alone: whether Binalshibh’s counsel of record has a conflict or a potential conflict. Thus, all the arguments for factual and legal entanglements with the other defendants are irrelevant to deciding that issue, and other counsel simply don’t need to be present. Also, he insisted that Binalshibh’s lawyer, James Harrington, was unreasonably trying to have it both way---simultaneously arguing that he may have a conflict and also that he must be able to advocate for his client in all hearings. Nevertheless, Judge Pohl immediately denied the SRT’s request for a closed hearing, and then announced a 15 minute recess---at which point the regular prosecution would return to discuss scheduling. The third part of the day’s proceedings dealt entirely with matters of scheduling, as Judge Pohl tried to figure out what, if anything, the court could proceed with during this sitting.  Once more, the dramatis personae shifted: the SRT departed, and was replaced by the regular prosecution team. First, Pohl questioned a member of that team, Clayton Trivett, about the extent of the prosecution’s commitment to maintaining a joint trial. He reminded Trivett that it was at the government’s request that he had frozen his initial severance of the Binalshibh’s case. The conflict issue had now already delayed things by seven months. How much longer, Pohl wanted to know, would litigation over Binalshibh’s team’s potential conflict have to drag out before the government would favor a severance and rescind its support for an abeyance? Trivett couldn’t give Pohl a straight answer: a few months sounded reasonable, but if the conflict litigation went on for over a year, then maybe not. He would need to consult with his team on the question.Trivett also explained that there were strong interests in keeping the cases consolidated---not just saving the resources for an additional trial, but also for redundant pretrial motions---and that even if litigation wasn’t happening, progress was still being made out of the courtroom (e.g. through discovery etc.). In order for the prosecution to make a more educated decision on the severance question, Trivett and Pohl also decided that it would be useful---and not a breach of the strict separation of prosecution and SRT attorneys---to allow the former to get a sense of timing from the latter. David Nevin then requested that the defense team be present at those meetings, a move that Chief Prosecutor Martins opposed; Pohl declined to order that for now, but agreed to think about it. The final section in morning’s proceedings consisted of a conversation between Pohl and Martins about what sort of hearings could continue at the moment. Judge Pohl noted that the government had argued that the potential conflict created by the FBI investigation must be resolved before addressing everything else. Logically, that should included this new translator-related conflict as well. However, now, Martins seemed to be suggesting that the court could address the Binalshibh translator issue even before resolving the original conflict question. Wasn’t this a contradiction in the government’s position? Martins asked for time to consider and confer. Pohl encouraged him to confer with the defense as well and announced an extended lunch break until 2pm---after which the commission recessed for the day.