Guantanamo Observer Report

Daniel Schlein, a member of the New York City Bar Association’s International Human Rights Committee, traveled to Guantanamo Bay, Cuba, the week of January 28, 2019, to observe proceedings in United States v. Khalid Sheikh Mohammad, et al. In his observation report, Mr. Schlein describes the legal issues pending before the Court at that time, meetings between NGO observers and members of the defense teams, and a press briefing to which NGO representatives were invited at the end of the week.

US v. Khalid Sheikh Mohammad, et als., Week of January 28, 2019

Accused/ Counsel

Brigadier General John Baker oversaw the defense teams

Khalid Sheikh Mohammad (KSM)/ David Nevin, LTC Derek Poteet, Mr. Sowards, Ms. Radostitz and Ms. LeBoeuf

Walid Muhammed bin ‘Attash (WBA)/ Ms. Cheryl Bormann, Maj Seeger, Mr. Edwin Perry and  CPT Brian Brady

Ramzi Bin al Shibh (RBS)/ Mr. James Harrington, Ms. Wickner, LT Danielson

Ali Abdul Aziz Ali (Ammar al Baluchi)(AAA)/ Mr. James Connell, LTC Sterling Thomas, Ms. Alka Pradhan, Mr. Ben Farley and Capt. Mark Andreu

Mustafa Ahmed Adam al Hawsawi (MAH)/ Mr. Walter Ruiz, Mr. Sean Gleason, LTC Jennifer Williams, Ms. Suzanne Lachelier, MAJ Joseph Wilkinson and Lt Cdr. Fury

Prosecution

Brigadier General Mark Martins oversaw the prosecution.  Other prosecutors present were  Mr. Trivett, Mr. Swann, Mr. Ryan, Mr. Groharing, Ms. Taran, Maj Dykstra, CPT Dastoor and Major Mills

Members of the Special Review Team (SRT): Ms. Jocelyn Ballentyne from the DC District Court, BJ Shanker from DOJ’s criminal division and FBI Special Agent John Stauffer.

Presiding Military Judge

Marine Col. Keith Parrella

BACKGROUND

The January 2019 hearing was the 33rd pretrial hearing in the military commission prosecution of the 9/11 case. The arraignment took place on May 5, 2012. The five defendants – Khalid Sheikh Mohamed, Walid bin Attash, Ramzi bin al Shibh, Mustafa Ahman al Hawsawi and Ammar al Baluchi – were charged with seven war crimes, two of which were dismissed. The government successfully appealed those dismissals.

On August 27, 2018, now-retired Army Colonel James Pohl, who formerly presided over this matter, detailed Marine Corps Colonel Keith Parrella as the new 9/11 military judge. Judge Parrella made his first appearance in the military commission case at a September 2018 pretrial hearing. While Judge Parrella presided over the proceedings, defense teams had filed motions to remove him in the Court of Military Commissions Review (the Military Commission’s appellate body, or CMCR). The basis for their motion was Judge Parrella’s work history with the Department of Justice Counterterrorism Section, the same department in which some of the prosecutors in the case had worked, leading to defense counsel’s concern about whether he could act impartially. Judge Parrella denied the motion. The defense subsequently petitioned for writs of mandamus in the U.S. Court of Appeals for the District of Columbia seeking vacatur of all of Judge Parrella’s orders. The appellate court denied the petitions on April 10, 2020, finding that it was neither clear nor indisputable that Judge Parrella was obligated to recuse himself.

At the time of my travel to Andrews Air Force Base in Maryland, the designated place of departure for Guantanamo Bay, it was not certain whether the Office of Military Commissions (OMC) would hold hearings in the KSM matter the week of January 28th due to a pending motion for a stay in the D.C. Court of Appeals filed by the defense teams. The purpose of the motion was to ascertain whether a conflict of interest existed that would ethically preclude counsel from representing their clients on the basis that they are the possible targets of an ongoing FBI investigation. At approximately 9:30 p.m. the night before departure to Guantanamo Bay, an OMC liaison informed me that hearings would proceed that week because the D.C. Court of Appeals had denied the motion for a stay.

COMMENCEMENT OF HEARINGS

The commission convened with Mr. Mohammad, Mr. bin al Shibh and Mr. al Baluchi present. A voluntary and knowing waiver of presence was established for Mr. al Hawsawi and Mr. bin ‘Atash. Prior to the hearing, Judge Parrella held an ex parte closed session under seal to receive a presentation from the government’s Special Review Team (SRT) that had been appointed to examine the existence, or lack thereof, of any ongoing investigations that would create a conflict of interest for any of the defense counsel.

Judge Parrella advised the defendants of their right to be present and their right to waive that presence, but when he sought each defendant’s acknowledgement that he understood his rights, Mr. bin Al Shibh responded that he could not answer the question because he contested the qualifications of judge Parrella to preside. In response the judge addressed Mr. James Harrington, Mr. bin al Shibh’s learned counsel, on the issue of Mr. bin al Shibh’s challenge to the qualifications of the judge (who referred to himself as the Commission), and raised concerns that his refusal to answer the judge’s question posed a challenge to the Commission’s authority and the safety of the participants. Mr. Harrington responded that Mr. bin al Shibh has attended the hearings for the last six years, and other than a few verbal outbursts years ago, had not disturbed the proceedings. Therefore, he argued, there was no basis for the Court to determine that solely because he contested its authority he posed a safety risk to the Commission. The judge then stated that he had adopted the past practice of not requiring shackling in the courtroom, but if there were concerns over following the orders of the Commission, that might change. He instructed Mr. Harrington to talk to his client. The judge did not make a finding that Mr. al Shibh had made a voluntary waiver during the hearing session.

Later that afternoon, the judge revisited this issue, stating that he felt Mr. al Shib’s comment that morning could be taken two ways: Either as a statement of his legal position or, of more concern to the Court, that he rejected its authority to control the courtroom. Judge Parrella said that what he was looking for was simply his recognition that it is the Court’s duty as a military judge to enforce protocol and decorum and that “if an issue were to arise that requires me to address him and to maybe tell him to have a seat or to stand against the wall, or whatever it may be, that he recognizes my authority as a military judge and he’s going to follow those instructions.” The judge added that if Mr. al Shibh is simply contesting his legal authority, that would be fine but that the Court would like a verbal assurance from the defendant that the recognizes his authority as the military judge.

Mr. Harrington replied that the defense didn’t understand the basis of the Court’s concern because Mr. al Shibh had displayed no disruptive behavior. He assured the Court that Mr. al Shibh recognizes that the Court has authority over him and the guard force. While the defendants don’t stand when the judge enters the courtroom, he added, Mr. bin al Shibh has complied with all instructions of the Commission so far and there is no indication that he would fail to do so in future.

While the military judge was asking if any counsel had anything else they would like to add, Mr. bin Attash interjected directly and asked the Court why it was “escalating” this matter. The judge told Mr. bin Attash that the conversation did not apply to him but bin Atash responded that the Court seemed to be threatening them. When the judge reiterated that the issue didn’t concern Mr. bin Attash, he responded that it was clear that the judge was taking this issue personally.

ORAL ARGUMENT ON DEFENSE TEAMS’ MOTION TO CLARIFY WHETHER THERE ARE ANY POTENTIAL CONFLICTS OF INTEREST THAT WOULD PRECLUDE THEIR ABILITY TO REPRESENT THEIR CLIENTS

The parties proceeded in the morning session to discuss AE 615, which involves the defense teams’ motion to conduct a thorough inquiry into any actual or potential conflict of interest. By way of background, in early January 2019 the defense teams became aware that the FBI had interrogated a paralegal working for the bin Attash team as well as other defense teams. On November 20, 2108, the FBI opened a formal investigation of an undisclosed nature. The interrogation of the former bin Attash team paralegal occurred while the paralegal was still on the bin Attash team. The defense teams have argued that the investigation into the paralegal is part of a larger pattern of interference that has impeded their relationships with their clients and puts them in conflict with the ethics rules of their state bar associations. In order to discharge their ethical obligations, the defense attorneys asked Judge Parrella to investigate the matter and determine the extent to which defense team members were or are under investigation by the FBI or any other governmental agencies. The military judge ordered a review of any pending investigation by a Special Review Team (SRT), which presented its findings directly to the Court. The SRT found that no conflict existed. The judge conducted ex parte meetings with the SRT and with attorneys from the Department of Justice. Although defense counsel possessed top secret security clearances, they were barred from attending those meetings. The judge ruled that no current members of the defense teams were under investigation by the federal government but did not provide any explanation for his decision.

At oral argument, the Court reiterated that on January 25, 2019, it had ruled that there was no conflict of interest for the parties arising from the interrogation or investigation of the paralegal. It acknowledged that none of the defense counsel had been heard prior to the ruling. Moreover, it recognized the defense had not been provided with any discovery concerning the SRT’s activities. Judge Parrella, however, had ordered the SRT to provide redacted prosecution filings that had been presented to the Commission.

Mr. Nevin spoke first on the motion to compel the government to disclose more about the investigation and argued that potential conflicts of interest were directly raised by the content of a declaration submitted by the bin Attash paralegal. Nevin argued that a conflict of interest prohibits the defense from continuing until and unless the potential conflict is resolved. He explained that his understanding is that the investigation involves a paralegal from the bin Attash team who was on leave to relocate his family from Fort Hood, Texas, in preparation for a new assignment in Korea. Army Counter-Intelligence contacted the paralegal and told him he had to come in to be questioned, purportedly solely about his transfer to Korea.

Around that time, Nevin continued, the paralegal became acutely aware that he was under “rough surveillance.” Nevins defined this term as surveillance by very obvious means. More specifically, Nevin stated, the paralegal claimed he saw people who photographed his home and fled when the paralegal followed them. Nevin said individuals also followed him in his car. Nevins added that the paralegal’s car was searched at the gate of Fort Hood by two FBI agents and civilian law enforcement officials, and that the search was far more intrusive than normal gate searches.

Nevin emphasized that the FBI interrogation focused on the paralegal’s time on the bin Attash team and the activities of that team and other defense teams. The two FBI questioners, according to Nevin, also tried to ingratiate themselves with the paralegal, and their questions showed an awareness of the internal workings of the bin Attash team that may indicate they had a separate source inside that team. The questions, Nevin further claimed, showed an awareness of the paralegal’s searches on the internet. The paralegal stated in his declaration that 80- 90% of the questioning involved the bin Attash team and the defense teams of bin Attash’s co-defendants. When the paralegal returned to take a polygraph, two other officials – one an FBI agent, and one from “another government agency” (Nevin presumed the other agency to be the CIA) – performed the test.

Nevin reminded Judge Parrella that the defense teams had sought permission to be at the presentation of the SRT about its findings on the investigation but were refused. While Judge Parrella had earlier ordered what Nevin characterized as a “robust” inquiry into the investigation of the paralegal, he had ordered it done ex parte. Mr. Nevin stated that the only declaration provided to the defense teams has been that of the paralegal himself. He asked the Court if someone else testified before the SRT. Judge Parrella did not answer that question, responding that in addition to the ex parte pleadings, there was a presentation and that the Commission had directed that two motions be redacted and provided to the defense teams. Mr. Nevin replied that the Commission had questioned the appropriate use of proffers and that the Court’s acceptance of proffers from the prosecution and the SRT on an ex parte basis was unfair and inappropriate to the defense teams.

In his remarks on the pending motion, Nevin claimed that a variety of questions about the FBI’s investigation remained unanswered, particularly whether the ongoing investigation pertains only to the bin Attash team, as the focus of the interrogation was also on the other defense teams. He noted that the Court’s order concluding that there was no investigation into any current defense team member was directly contradicted by the paralegal’s declaration. He claimed that ongoing and continual investigations designed to retaliate against the defense for doing their job have existed since at least 2009. Among the unanswered questions, as he saw them, were: What was the other government agency that participated in the polygraph of the paralegal? Why did those agencies resort to rough surveillance? Nevin stated that the manner of the surveillance implies an intent to intimidate rather than to actually gather information. He reminded the Court that the investigations arose in the context of capital cases. He added that Khalid Sheik Mohamed was tortured for three and a half years, placed in detention and incommunicado and subjected to a regime of “learned helplessness.” Sustained retaliatory investigations, he argued, are in themselves extremely corrosive of the attorney-client relationship given the background of this case.

Nevin also stated that this is the ninth time he has been personally involved in an investigation since the case began. He opined that he perceived a pattern in those investigations in which the government makes a false allegation, conducts a protracted investigation and then does not clearly resolve the allegation.

Nevin reminded the Court that he and other defense counsel were investigated by the U.S. Attorney’s Office for the Northern District of Illinois for over three years without even being told of the charges. He added that even now, the defense teams know nothing other than that the government eventually concluded that they had done nothing wrong.

He mentioned another investigation that involved a translator for the KSM team whom the FBI investigated in 2012. According to Nevin, the FBI lied to the translator by telling him to come in to discuss an issue with his security clearance, but instead he was asked questions about the defense teams. According to Nevin, the translator did not tell the defense team about this incident until much later on in the litigation. Since then, according to Nevin, the FBI infiltrated the al Shibh team by approaching and trying to recruit a team member to become its mole, a translator for the KSM team had his security clearance withdrawn without explanation (and later restored without explanation, following motion practice) and the government accused defense teams of willfully “spilling” (i.e., disclosing) classified information. Most recently, Nevin continued, Brigadier General Mark Martins (the head of the prosecution team) threatened the defense teams with criminal prosecution for investigating the case if they approach CIA witnesses in conducting their investigation of the facts surrounding the detentions and alleged torture of their clients. These incidents, Nevin argued, are not unrelated. Rather, they are, in his view, a consistent effort to intimidate the defense teams.  (The prosecution denied threatening the defense teams with criminal prosecution.)

This threatening environment, Nevin claimed, should not exist in a criminal case, and he characterized the constant false allegations as wearing. The defense, he acknowledged, understood that no one is immune to investigations and the defense teams don’t expect to be so, either. But Nevin maintained that “Ten years of repeated false shots across the bow” designed to intimidate defense counsel from doing their jobs is unacceptable. The defense, he added, would be happy to have the Commission resolve the unanswered questions about the recent investigation, but they all have an independent ethical and legal duty to ensure that they do not have a conflict. He maintained that they cannot simply accept the Court’s findings.

Ms. Borhmann, the civilian death penalty lawyer for the bin Attash team, addressed the Court next. She argued she could rely on the findings of a judge only if there were some basis to rely upon it. She also warned that all current defense team members would be implicated by FBI questioning of a paralegal who worked for her team three years ago and who was severed from the team only a few months ago. She was particularly disturbed by what she characterized as trickery by the government when it induced the paralegal to appear for a two and half hour interrogation by two FBI agents that circumstantially focused on several of the defense teams. She noted, furthermore, that the questions they asked the paralegal went to the heart of bin Attash’s defense. Borhmann opined that coordinating the travel of two FBI agents from the National Capital Region to Fort Hood, Texas, through the Army and Army counter-intelligence is not something that can be done quickly. During the interrogation, the agents reportedly told the paralegal that they had tried to find him at his Virginia house the prior week. And Borhmann believed the paralegal was not the true target of the investigation since the FBI agents did not read him any Miranda rights or its military equivalent.

Mr. Harrington, during his turn at oral argument on behalf of Mr. al Shibh, raised serious concerns about due process because, as he put it, the court rendered a detailed and complicated decision and then essentially said “I will give you an opportunity to be heard on it afterwards.” He stated that the decision came about only after an ex parte discussion with the prosecution and before the Court heard from the defense. Mr. Harrington reminded the Court that the Commission has been criticized by the legal community and the world, and that the way the Court addressed the issue validates those criticisms. It shows, Harrington told the Court, that the Commission is willing to race to the finish line based on convenience and expediency. He observed that the SRT doesn’t even have to appear at Guantanamo Bay. All this contributes, Harrington said, to the conclusion that the military commissions process is fundamentally unfair.

Harrington further observed that government investigations seriously affect members of his team, who rely on their good name to progress in their careers and obtain essential security clearances. He likened investigations to a cancer that returns after remission, bringing back all the old feelings and problems with it anew. He observed that the bin Attash paralegal was reportedly asked during his interrogation the same questions about the al Shibh defense team as Borhmann mentioned, so Harrington maintained that the defense teams needed to know what led to that interrogation and what conversations were had about it. The SRT, he further opined, should be required to provide discovery about what it did and what materials it obtained.

Harrington said that to an outsider, defense objections may seem like paranoia, but he cited several examples that he claimed raised serious concerns about the veracity of the government’s representations in the past. For example, he reminded the Court that participants in the case were told that the security light in the courtroom could only be operated by the court security officer. Nonetheless, another (and still publicly unidentified) government agency once activated it. They were also told, he said, that the microphones were only capable of capturing courtroom speech when active, yet they found out differently. Harrington reminded the Court that the defense teams discovered listening devices disguised as smoke detectors in their client meeting rooms. In the Nashiri case, he added, the defense discovered listening devices in electrical sockets. Harrington told the Court his residential cable television provider recently told him that there is “excess egress” in his home computer system and implied that the government was monitoring his electronic activities. Harrington also described to the Court that the computer he maintains in his office keeps restarting even after he shuts it down at night. He said in summary that the Court asks the defense to accept the representations the government makes to it, but yet the defense has real reasons to mistrust those representations.

Mr. Ruiz, on behalf of his client Mr. al Hawsawi, argued that the Court’s finding that there is no investigation of “current” defense counsel invokes a meaningless distinction between current and past defense team members. All defense team members, he maintained, have a continuing duty to protect confidences, and that duty applies even after they leave a defense team. The FBI agents in the interrogation at issue questioned the paralegal about the inner workings of a team, so Ruiz concluded that the distinction the SRT and the government are trying to make is inappropriate. Also, Ruiz questioned why the defense teams were only able to make their cases now, after the Court had rendered its decision. Ruiz maintained that such an unusual procedure makes the defense “seem like an afterthought.”

After hearing the arguments of defense counsel, Judge Parrella remained skeptical that the defense teams were entitled to any additional information about the SRT’s work or the basis for the Court’s finding. He asked if the defense was merely speculating that the FBI’s questions related to the defense teams. He stated that they had no facts to make that assumption. He further stated that the Commission made a thorough inquiry and specifically told the defense teams that no investigation is ongoing or expected in the future. In light of those circumstances, the Court asked what facts could support the conclusion that a conflict exists. Judge Parrella said that he had clearly stated that the investigation involved only the bin Attash team and that none of the other teams are even remotely connected to the investigation. The judge added that he was well aware of the defense teams’ independent duty to conduct an ethical assessment of conflicts and that he is sensitive to the fact that several investigations have occurred already in these proceedings.

At the end of the first day of hearings on Monday, Judge Parrella laid out the plan for Tuesday.  The agenda was to conduct a 505 hearing on AE616 (involving the closure of the courtroom to take the unclassified testimony of a former CIA interpreter for the al-Shibh defense team.) Judge Parrella stated that depending on the outcome of that hearing, he would, if necessary, issue an order to hold a closed hearing, followed by an open session starting at 1:00 p.m. The Commission recessed at 4:35 p.m. that day.

ARGUMENT OVER WHETHER TO CONDUCT QUESTIONING OF FORMER CIA INTERPRETER IN OPEN OR CLOSED SESSION 

In an open session the following afternoon, defense teams argued AE616 concerning the taking of testimony by a former CIA interpreter. By way of background, the interpreter’s participation in military commission proceedings became problematic when one of the defendants recalled that he had seen him while held at a CIA black site. The Military Commission subsequently ordered testimony from the “Former CIA Interpreter Utilized by Some Defense Teams.” The Commission initially ordered the testimony in closed session, but Mr. al Baluchi objected to closure of the testimony, and the parties therefore argued the issue of public access to the hearing.

At the hearing on this issue, Alka Pradhan, counsel for Mr. al Baluchi, spoke first. She asked how the interpreter sought employment with the Military Commissions Defense Organization (MCDO) and whether anyone or anything prevented him from disclosing his previously employment with the CIA to MCDO. She argued that the government bore the burden of proof to close the hearing on this issue, requiring a balancing between the public’s and the defendants’ right to a public trial and the national security interests involved. The First and Sixth Amendments, along with relevant case law, create an exceptionally high bar for restricting public access. The burden under relevant precedent of the U.S. Supreme Court, she stated, is that the closure must be no broader than necessary to protect the national security interest and must be narrowly tailored. Therefore, she reasoned, the Commission must examine reasonable alternatives. She also argued that the Constitution’s Confrontation Clause gave the defendants the right to attend the hearing. She maintained that the translator’s testimony is not classified, nor is the existence of any nondisclosure agreement he has with the CIA. Pradhan asserted that the mere presence of classified information around an issue cannot by itself justify closure. She maintained that it is the government’s burden to justify closure of these pretrial proceedings.

Pradhan emphasized there must be an overriding interest that is likely to be prejudiced, and here the Commission has already taken significant steps to protect any U.S. interest in the testimony, including the use of pseudonyms and subject matter limitations on the testimony. She maintained that the translator’s testimony involves his employment with this trial’s defense teams and may show a deliberate government intrusion in the defense relationship. Pradhan suggested that further mitigating measures remain available to the Commission that would meet the government’s interest in secrecy while also enabling the public to learn if the federal government was at all involved in actively undermining the capital defense in a 9/11 trial. Such measures include barring broadcast of the witness’ image or altering the voice or image of the witness to protect his identity.

Pradhan noted that under the Court’s prior rulings, the two permissible areas of inquiry about the translator were (i) how this individual sought employment with the Military Commission Defense Organization and (ii) whether anyone prevented him from disclosing his former employment with the CIA. Pradhan argued that neither of those inquiries entailed any discussion of classified information. At most, she opined, they might involve limited classified information.

Cheryl Borhmann, for Mr. bin Attash, stated that she could not argue the issue because they were operating under a conflict (a reference to the unanswered questions related to the FBI’s recent investigation of one or more of the defense teams described supra).

Mr. Trivett then spoke for the prosecution. He stated that although styled as an objection, the defense teams’ motion to open the hearing was really a motion for reconsideration of an earlier ruling of the Court. He argued that the burden was therefore on the defense to convince the Court to disregard its earlier ruling.

The prosecution apprised the Court that there may be logistical issues in making the witness available for a hearing the following morning because of a “pending weather event” at the witness’ location. (The hearings in January 2019 coincided with severe winter weather conditions across much of the continental United States.) Defense counsel asked for advance notice of any delay so they could discuss it with their clients.

Judge Parrella stated that he would take the motion under advisement and issue a decision shortly. The Commission then recessed at 2:37 p.m. The judge’s clerk subsequently notified the parties by email that the hearing would be closed and would begin at 9:00 a.m. the following morning, weather permitting. The next morning, however, the NGO observers were informed that hearings would be suspended for the remainder of the week because Judge Parrella had experienced a medical emergency that required his evacuation to the mainland for treatment.

MEETINGS WITH MEMBERS OF THE DEFENSE TEAMS

Although Judge Parrella’s absence halted further hearings that week, the NGO representatives had an opportunity to meet with several participants in the Commissions process. Towards the end of the week, they met with Walter Ruiz, Suzanne Lachelier, Major Joseph Wilkinson and Lieutenant Jennifer Williams, all attorneys for Mr. al-Hawsawi. Ruiz explained his background and how he became involved in the case. He expressed his opinion that in resolving the questions relating to a former CIA translator on an ex parte basis, the Court pursued an approach that may have been expedient but not just. In the case of the translator, Ruiz pointed out that there are “plenty of safeguards” to protect the government’s interests in secrecy without having to close the proceeding.

Ruiz felt that trials of the defendants are still five to 10 years away. Very early on, he moved to sever his client’s case from the others on the basis that his client was not a high-level member of Al Qaeda and was not as directly involved in planning the 9/11 attacks. Ruiz said that he does not want his client to suffer the “spillover” effect of being judged with the other defendants in a “group dynamic” that may prejudice his client’s interests.

Ruiz added that the government has pushed back on his attempts to sever his client from the other defendants by arguing that a defendant tried later than others will gain an unfair advantage by learning the government’s case from the preceding trials. Ruiz pointed out to the NGO representatives, however, that in his experience as a defense attorney in conventional criminal trials, joint trials of criminal defendants are almost unheard of. If al-Hawsawi’s case is severed, he felt the Commission could schedule his trial in another year or two.

Ruiz told the NGO representatives that being an officer of the court means in part being an effective counsel. He described the importance of building a rapport with the client as one part of being effective. That might require a female defense counsel, for example, to wear a hijab in the presence of her client.

Among the issues Ruiz discussed was his frustration over the appellate court within the OMC, called the Court of Military Commissions Review (CMCR). The CMCR does not have enough unconflicted judges, he felt, slowing consideration of issues on appeal. Ruiz noted that some of the other defense teams use the media a great deal, but that his does not.

Ruiz told the NGO representatives that even in a military setting people forget that the defendants are entitled to a presumption of innocence. He said that he is offended whenever the prosecution takes the podium and tries to reverse that presumption. Ruiz also thought that the Court gives too much leeway to the government. However, Ruiz felt that Judge James Pohl, who oversaw the proceedings before Judge Parrella, was perhaps less deferential than some other judges have been, especially when the government through its actions and arguments started to question the rule of law. Ruiz felt that Judge Parrella doesn’t have sufficient experience to handle the case and is particularly deferential to the government.

Ruiz also expressed frustration over the judicial process. The “goal” of the trials in his appraisal is to isolate the defendants and conceal uncomfortable facts. But Ruiz opined that those are not the reasons the apparatus should exist. The true goal was not to create the most efficient system of justice but rather to find a way to try the defendants expeditiously without disclosing sensitive government information, especially relating to their detention. “We want to kill them, but with the appearance of fairness and justice,” he said. Nobody wins in such a system, he felt; the only winners are those who can hide their identities. Ruiz stated that there is a social cost to a system like the military commissions that disregards defendants’ constitutional rights.

After their meeting with the al Hawsawi team, the NGO’s met with Brigadier General John Baker, who oversees all the defense teams as Chief Defense Counsel of the Military Commissions Defense Organization (MCDO). He emphasized that defense teams are not a “subsidiary” of the OMC and sometimes “must graze all the way up to the fence line” in order to be zealous counsel. Defense counsel, in Baker’s conception, must maintain their independence and offer client-based defense services. BG Baker reminded the NGO’s of the limits of his own powers in overseeing the various defense teams. He noted that he supports the defense teams, but the individual defendants and their teams make the litigation decisions. He stated that defense teams must go around the world to conduct investigations, and they work to maintain public confidence in equal justice under the law.

BG Baker gave an overview of pending proceedings and discussed his manpower and other resource challenges. Foremost among his concerns is that Guantanamo cannot logistically handle all of the trials that still need to be completed. He also remarked that the facilities have many problems, such as mold in the areas where counsel meet with their clients. Many of his staff also experience burnout. Litigation is hard, and some have quit, he noted. He cited extensive travel as another source of strain on defense team members. FBI investigations into the defense teams only add to the stress they experience, he stated. BG Baker said that he needs 19 people for non-capital cases pending before the commission but that delays in filling openings in the MCDO hamper his efficiency. He attributed some of the staffing delays to competing staffing priorities among the military’s human resources personnel. The process often takes a great deal of time in order to fill the openings.

Another staffing complication BG Baker cited is that the Department of Defense (DoD) must adhere to statutory hiring preferences that sometimes prevent the defense teams from hiring applicants with the most specialized defense experience for positions on the defense teams. He cited as an example a paralegal candidate with specialized experience who had worked on the Boston Marathon bombing case, but had no prior military service. That individual, he said, has twice been filtered out during the hiring process because of the statutory hiring preference for veterans. Another problem he mentioned is the length of time it takes his staff to obtain security clearances. Background checks can take up to a year, but military lawyers usually serve for three years. In many cases, therefore, BG Baker said he had to deal with a situation in which the first year of a new addition to a defense team is consumed by the security clearance process.

BG Baker also said that another potential manpower problem arises because of the lack of backups when learned counsel become unavailable. For example, defense attorneys Bormann and Connell were sick during the hearings. And BG Baker is not sure how long Mr. Harrington will be able to continue representing his client. In order to have substitutes or replacements ready, BG Baker has put in two requisitions for learned counsel with the DoD. He noted that a new learned counsel in a capital case that has been going on for 10 years would need time to get up to speed.

BG Baker also expressed frustration over lack of office space and translation support. He estimated that the MCDO has enough in its offices in the capitol region, but not in Guantanamo Bay. He noted, however, that the government is expanding the Expeditionary Legal Complex. BG Baker said he believed that was a positive step forward in alleviating the office space problem. However, the MCDO, Baker said, still needs additional linguists because defense teams still have not been able to translate all the discovery they received from the government, limited though that material may be.

BG Baker said that among his biggest concerns is the ongoing tension between the rule of law and protecting national security. The American system of justice incorporates a certain level of due process protections, and the system at Guantanamo “can’t provide it.” He cited in this respect ongoing governmental intrusions into attorney-client relationships that have rendered it difficult for attorneys and clients to work effectively together. He again alluded to concerns about confidentiality in meeting rooms, an issue that recently prompted Judge Pohl to issue an order to sweep the facilities for listening devices. BG Baker also mentioned the former paralegal whom the FBI interrogated as well as restrictions on the defense teams’ functions. He also said the defense teams have ongoing discovery challenges. Everything is classified, and they have to “fight for everything.” As an example, he said they had to litigate for a year just to get al-Nashiri’s medical records. In a normal capital case, he observed, that information would be absolutely essential for purposes of mitigation and obtaining the data would not have been an issue. Yet, he said, the government took an appeal over this issue in the al-Nashiri case.

BG Baker also expressed concern over the turnover in the Convening Authority (the formal designation of the authority that controls the military commissions). He observed that they are about to get their sixth Convening Authority. Moreover, he observed, the current Convening Authority works only two days a week and then only for four hours in the afternoons. That individual is simultaneously senior counsel for the Defense Logistics Agency. BG Baker felt that the Convening Authority treats the MCDO as its subordinate when the MCDO is really a semi-autonomous body given the nature of its responsibilities.

And due to the fact that the trials are playing out in a military setting with the participation of military personnel, BG Baker said there are strange quirks that would never happen in a normal trial process.

The NGO representatives asked BG Baker how he would change the way in which cases are handled if he could. “I wish we could turn back the clock,” he responded. The trials are tainted by the rendition program and by national security concerns that block the flow of information needed to conduct fair trials. He characterized the system as “horrible” and “unfair.” He said he would like to see the MCDO uncoupled from the Convening Authority so it can become truly independent. He would also like to see the commissions process become more like the federal courts. The classification system should also be fixed. In his view, everything is “way over-classified.” For example, BG Baker cannot even discuss the location of detainees because that fact is classified. Defense counsel have to travel to DC to see classified material. Some counsel, like Mr. Nevin, who lives in Idaho, don’t have a secure compartmentalized facility near him that would enable him to view classified information. BG Baker felt it would be better if defense counsel could more easily access classified materials. He also felt that the rules about classified information are unclear. Everyone is “super touchy” about security because of government inconsistencies and uncertainties. BG Baker told the NGO representatives that there is even an acronym at the MCDO for this phenomenon: The security rules are VUCA (vague, uncertain, chaotic and ambiguous).

BG Baker reminded the NGO representatives that he himself had recently and, in his view, unlawfully been held in contempt of court by a military commissions judge for refusing to order defense teams to return to duty after they discovered the government was eavesdropping on their meetings with their clients. He said he had to file a habeas writ with the D.C. Court of Appeals, which recently overturned the contempt order.

The NGO representatives asked BG Baker what he felt Americans needed to know about the proceedings. He stated, “it’s not over. And they misunderstand the process because they think it’s fair.” The rules, he added, aren’t set in stone. “People need to understand that everything in the trials is a case of first impression and that everything is a litigation opportunity for the defense.”

The NGO representatives did not have an opportunity to meet with Brigadier General Mark Martins or any other member of the prosecution team. The prosecution did not extend an invitation to meet with the NGO representatives, nor did BG Martins respond to an informal request for a meeting. It is my understanding that the prosecution has not participated in any meetings with NGOs in recent years.

PRESS CONFERENCE

At the end of the week, the NGO representatives were invited to a press conference by team al Baluchi (represented by Lt. Connell and Ms. Pradhan), with some participation by Mr. Nevin on behalf of his client, Khalid Sheikh Mohamed. In his opening remarks, Mr. Connell reminded the audience of the victims of 9/11 and how the families have shared their stories with them. These conversations, he said, guide their actions. But he added that those stories cannot alleviate the unfairness of the process. Connell stated that the events of the week showed what a poor idea it was to improvise a court system in Guantanamo Bay. Hundreds of people had to come down for a very short hearing week. Rather than show a robust system of justice, the commissions, he claimed, have again and again been revealed as fragile and ad hoc. Connell talked about the system’s logistical frailty, i.e., the difficulty of getting to Cuba and the disruptions due to illness. He also spoke of the system’s legal frailty. He said by way of example that when the military judge had a medical emergency, he couldn’t be replaced. He noted that in the home jurisdictions of the defense counsel, a court could simply replace a judge who was temporarily unable to serve. Connell opined that issues like Judge Parrella’s absence during much of the week showed that we need to rely on regular court systems rather than ad hoc ones that have been designed for political reasons.

Connell suggested that alternatives include bringing an Article III judge to Guantanamo Bay, which might help logistically and legally. He asked why they could not use the courts martial system, which he characterized as “robust” and having “well-developed precedent.”

Commenting on the details of the motions heard that week in Court, Connell said that the Court limited defense questions regarding the interpreter who worked for the CIA. And it limited the manner in which those questions will be asked. The defendants wanted to ask the interpreter about his employment with the CIA. Connell stated that their questions would involve an entirely unclassified discussion that should be conducted in open session. He reminded the audience that he wanted to know how the interpreter got onto the defense teams and what information the translator transmitted to the CIA, among other issues.

In contributing remarks, Mr. Nevin noted that the system does not work as Congress intended. He observed that the CMCR (the Commission’s internal appellate body) has been dysfunctional due to conflicts among some of its members, and the Ninth Circuit, where Nevin regularly practices, would never just “go away” because of the incapacity of a single judge. Contrasting the commissions process to a domestic proceeding, Nevin said that the CMCR actually “went away” for quite some time due to conflicts issues that left insufficient judges to render rulings, and the hearings this week halted when Judge Parrella couldn’t serve. To Nevin, these are more examples of why the system is a failure. Connell added to Nevin’s remarks that the CMCR has given no timetable on when it will consider the defense teams’ pending appeal of Judge Parrella’s denial of their motion for his recusal on the basis of his close ties with the prosecution.

Mr. Nevin also addressed the ongoing conflict issues, as he sees them. Lawyers must balance their obligation to represent their client with their obligation to obey the rules in order to maintain their licenses to practice law. But he commented that these obligations at Guantanamo can pose a Hobson’s choice: If you proceed with your work, you’re waiving the conflict issue. Nevin told the audience that these issues have to be worked out on a case-by-case basis.

Mr. Connell also touched on the difficulties of ascertaining what information the government has that defense teams may need and what information the defense teams can release. Among the issues he mentioned is lack of clarity about how the government conducts its classification reviews. He asked, “How are we supposed to know what’s classified if we don’t have an organized classification memo?” In addition, Connell remarked that the government obscures information in a way that gives it an advantage. By way of example, he said the defense teams learned that the summaries of transcripts the government provided them rearranged words in a manner that changed the meaning of what the participants actually said. (Connell explained that the government provided the defense teams an original document that had been declassified by mistake so the defense could compare the summary with the original.) Connell suggested that the government could be using this kind of ambiguity to obtain an advantage in obscuring the FBI’s participation in interrogations at CIA black sites and the FBI’s role in contributing to a state of “learned helplessness” of the defendants.

In conclusion, Connell said “I’m an American. I believe in American justice. That’s a process, and I want it to succeed. The process should apply to everyone and should meet their needs.” Connell asked for subpoena power to obtain the information he needs. He stated that the government controls all witness production and has refused to produce 90% of the witnesses they’ve requested. Connell said that most courts simply ask a defense team “where’s your witness?” He said that there’s nothing like a witness waiting to testify to produce a fair trial. In contrast, he said the Guantanamo courts say “let’s decide whether a person can testify in two months.” He remarked that the Court has allowed the defense to talk to FBI officials as long as they don’t talk about CIA personnel or the logistics of the RDI program. Connell said that these kinds of restrictions hamper the defense and create an unfair trial process.