In 2012, Khalid Shaikh Mohammed and four accused accomplices—Walid Muhammad Salih Mubarek bin ‘Attash, Ramzi bin al-Shibh, Ali Abdul Aziz Ali (Ammar al-Baluchi), and Mustafa Ahmed al Hawsawi—were charged jointly by the U.S. Government with organizing, training and financing the nineteen hijackers who, on September 11, 2001, crashed planes into the World Trade Center, the Pentagon and a field near Shanksville, Pennsylvania, killing 2,976 people. They are charged specifically with committing conspiracy, attacking civilians, intentionally causing serious bodily injury, murder in violation of the law of war, hijacking or hazarding a vessel or aircraft, and terrorism.

Last week, the 29th Military Commission pre-trial hearings at Guantanamo Bay Naval Station in southeast Cuba were devoted to hearing a raft of legal motions related to a handful of main issues. U.S. Army Colonel and Judge James L. Pohl—largely in open session, but also in closed/classified sessions—presided over deliberations asking questions of both the defense counsel and prosecutors to inform his pending rulings on each of the motions centered around these key issues:

(1)   Information on Enhanced Interrogation: Defense counsel argued (in motion AE558) that, unless the defense is granted greater access to additional information about CIA enhanced interrogation/torture of their clients, including the locations of international black sites, information about the buildings themselves, and interrogator notes and reports, they will be unable to mount a proper defense of their clients. The prosecution countered that providing additional highly classified information would threaten the national security and the safety of those CIA employees and related personnel.

(2)   Interview Restrictions on Former CIA Officials: Defense counsel argued (in motion AE524) against interview restrictions that prohibit the defense counsel from interviewing current or former members of the CIA and people who know them. The defense claimed the restrictions have dramatically tightened some six or seven times in the nine months. The prosecution countered that they have provided the defense with information for about 25 officials and other people of interest on behalf of the defense via “Unique Functional Identifiers,” or pseudonyms, but that these officials have declined the opportunity to speak with defense counsel. Defense counsel argued both that appropriately-cleared Defense counsel should be trusted with this contact information and that Defense counsel can/will have greater success in gaining the cooperation of these witnesses if they can reach out directly.

(3)   Political Interference in the Justice Process: Defense counsel argued that political interference with the military justice process, including the coordinated firing of Military Commission leadership and President Trump’s 2018 State of the Union Address, was so antithetical to a fair trial that it should justify dismissing the case—or at least dropping death penalty charges against the accused.

  • On the first count, Defense argued (in motion AE555) that the surprise February 2018 firing of the Military Commission’s Convening Authority Harvey Rishikof and his legal advisor Gary Brown was a politically-motivated move brought on by, among other things, the decision of Rishikof to entertain the notion of a plea deal with Defense counsel. Prosecution argued that the decision was brought on by Rishikof’s insubordination, including when he end-ran the military chain of command by reaching out to the U.S. Coast Guard for an aerial photo of the GTMO Legal Complex (which he was considering expanding) when the U.S. Southern Command refused to provide the photos.
  • On the second count, Defense prosecutors argued (in motion AE559) that President Trump’s recent public comments and tweets condemning the “complete and total disgrace” sentencing of Sgt. Bowe Bergdahl—who avoided jail time after deserting his post in Afghanistan in 2009—and his call for the death penalty and potential GTMO detention/trial of Sayfullo Saipov, the man accused of killing eight pedestrians in October of 2017, constituted “undue command influence.” Judge Pohl was outspoken in condemning the comments of President Trump, saying: “With all due respect to the commander-in-chief, if he wants to interject himself into this process by making these kind of comments, it is my job to make sure this process is fair.” In perhaps the only agreement between the opposing sides during the entire week, the prosecution, while arguing that prospective jury members would not make their decision on the guilt of the accused based on “a few comments made by the President,” agreed that the President’s comments were regrettable and unhelpful.

(4)   Defendants faltering access to Defense counsel: Defense counsel argued (in motion AE566) that their clients’ ability to meet with members of their defense teams has recently and dramatically deteriorated since the beginning of 2018. Defense counsel argued that they have increasingly experienced difficulty in receiving visit access and meeting rooms for their teams—particularly their non-lawyers—to meet with their clients to develop their defense. Prosecution countered that limitations in the number of meeting rooms and the lack of sufficient Joint Task Force (JTF) personnel meant that not every request could be honored: “on any one day there could be as many as ten competing interests for meetings with these individuals. Something’s got to give. But they have access. The camp does sometime let lawyers meet with their clients on weekends.”

(5)   Laptop Seizure from the Defendants: Defense counsel argued (in motion AE530VV) that laptop computers provided to the defendants in 2014 to support their defense preparation, have been unfairly seized, searched, and not returned.  Prosecutors argued that the laptops were being used, and perhaps modified, inappropriately and that they would be returned once their security and proper use could be confirmed. With no proof offered that the laptops had been inappropriately modified, Judge Pohl ordered their return.

(6)   MRI machine use: Defense counsel requested that the MRI machine currently at GTMO being used to perform brain scans on both accused USS Cole bomber Abd al-Rahim alNashiri and on Khalid Sheikh Mohammed remain at GTMO to assist the Defense in using MRI testing to determine the physical effects of their clients’ torture (and, perhaps, to undermine the “clean confessions” of the defendants or at least drop the death penalty charges.

(7)   Defense counsel bemoaned the transparency of the Military Commissions, including the slow release of unclassified pleadings and the refusal to release almost all classified pleading and transcriptions in redacted form.

Judge Pohl’s rulings on the motions heard this week will, as deemed appropriate, be placed on the Military Commissions website when they become available.

Other major news from the week at GTMO included:

  • Miami Herald/McClatchy reporter (and relentless Military Commissions chronicler) Carol Rosenberg broke the story on April 30 that that an MRI scan performed on Khalid Sheikh Mohammed suggested that he suffered a head injury in CIA custody.
  • On April 30, in the first hour of the first day of hearings, defendant Walid Bin Attash told Judge Pohl that he was very unhappy with his representation by Cheryl Bormann, his appointed Lead/Learned Counsel. He said that he had tried for more than two years to make it work with Ms. Bormann, but with no success. He asked if he could get a new attorney, which was rejected by Judge Pohl, and then asked if he could sever his trial from that of “his brothers,” which Judge Pohl quickly rejected again. Bormann confirmed that Bin Attash continues to refuse to speak to her, blaming part of this division with her client on her inability to effectively advance his detainment issues within the court.
  • On April 2, the Department of Defense (DoD) facilitated the transfer of GTMO detainee and confessed terrorist Ahmed Mohammed Ahmed Haza al Darbi, 43, to serve out the balance of his 13-year plea-bargained sentence handed down in 2014 in his home country of Saudi Arabia. The Saudis came to GTMO to pick up al Darbi, reducing the GTMO prisoner count to 40.
  • On April 3, it was announced that Defense Secretary Jim Mattis had submitted to President Donald Trump his tasked plan for the detention of suspected terrorists, including at GTMO. “This policy provides our warfighters guidance on nominating detainees for transfer to Guantanamo detention should that person present a continuing, significant threat to the security of the United States,” Pentagon spokesman Commander Sarah Higgins stated. Details of the plan were not announced, but Trump, in campaigning for President, promised to “load” GTMO “up with bad dudes.”
  • David Nevin, Lead/Learned Counsel for Khalid Sheikh Mohammed, told media on April 4, that Defense Counsel had been advised that there would be a 25 percent cutback in overall funding for the Office of Military Commissions (OMC).
  • With a long break in observance of Ramadan, the next U.S. versus KSM pre-trial hearing at GTMO, the 30th round, will not convene until July 23 and is scheduled to run for two weeks through August 3.