Report below from last week’s Military Commissions proceedings at Gitmo. NIMJ’s volunteer observer for the proceedings was Prof. Chris Jenks, SMU Dedman School of Law.
Media Meeting With Prosecution and Defense
Sunday, August 10, 2014
The Office of Military Commissions (OMC) allowed the observers to sit in on the Sunday preview meeting between four media outlets and the Prosecution and Defense. The observers were not permitted to ask questions, however.
BG Martins spoke first and paraphrased written remarks he provided the media. He began by referencing 9/11 and told the story of one victim from the Trade Towers whose wife would be attending this week’s proceedings. He then explained how the week would likely unfold, first with oral argument in the government’s emergency motion to reconsider severance of US v Binalshibh from the other four 9/11 accused (AE 312). From there BG Martins envisioned the proceedings would turn to potential conflicts of interest in the Binalshibh defense team (AE 292), Hawsawi’s motion to sever his case (AE 299), a motion alleging defective referral (AE 8), and a motion alleging unlawful command influence (AE 31).
BG Martins then discussed what he labeled “modest progress” of the commissions and also addressed detention conditions, including that a 1 August 2014 D.C. Circuit case acknowledged that the detainees pose a “very real security threat.” He then took questions, but kept to his usual practice of speaking in generalities or reiterating where in a previous motion or a rule or case the reporter could gain more information. To no avail, reporters attempted to have BG Martins explain the following: basis for preference for joinder; risks that joint trials inevitably pose, such as incriminating extrajudicial statements made by one defendant impermissibly being used by the members (jurors) to convict a co-defendant (regardless of the judge’s instructions warning against such use); and, how detention conditions relate to trial and the impact of President Obama’s recent admission that “we tortured some folks.”
Next was Mr. Ruiz, counsel for Mr. Hawsawi. Ruiz was blunt and direct of his criticism of the U.S. Government’s actions, reminding the media of first the CIA’s efforts to monitor all communications and then the FBI’s more recent efforts to infiltrate one or more defense teams. He accused the government of litigating in the shadows.
Mr. Connell and Lt Col Thomas, counsel for Mr. al-Baluchi, continued Mr. Ruiz’s approach. They criticized the government for over classification. They decried how a prisoner in the US could mail essentially anyone anything not classified or threatening, including their parents, the media, their congressman but not a detainee at Gitmo. They claimed that half of the time spent thus far was on classification issues involving the RDI program, which given that the President has outlawed it should or could be declassified in their view. They concluded by claiming that they have the cleanest of hands but that the government exploits that by the strategic ambiguity of shifting rules and unclear classification guidance. The defense attorneys called for transparency.
United States v. Binalshibh
AE 312A Government Emergency Motion to Reconsider Severance
Monday August 11, 2014
The military judge began the session at 0910 hours. Present in the courtroom were counsel for Mr. Binalshibh, Mr. Binalshibh, and counsel for the government. The other 9/11 accused were not present as they were not a party to the motion, though their attorneys attended. Victims family members, media, and NGOs watched from a viewing gallery at the rear of the courtroom.
Clay Trivett presented oral argument on behalf of the government. He stressed that severance would mean multiple 9/11 trials and the corresponding impact on witnesses and victim family members. He claimed that the 9/11 case involved more victims and more victims’ families than any other case in US history. He highlighted, literally, a section of the severance order in which the military judge indicated that concerns about the unresolved nature of Binalshibh’s possible mental health issue and conflict issues on his defense team prompted the order. Trivett contended that those issues would likely be resolved by October 2014, which the military judge seemed to find a dubious claim given the manner in which the case has proceeded since late 2013.
Trivett stressed that initial joinder of the 9/11 was proper and indeed that the prosecution omitted some potential charges against at least some of the 9/11 accused in order to ensure joinder. This was later confirmed at a meeting outside of the courtroom that BG Martins had with the observers. At that meeting, BG Martins stated that additional charges may be sworn on at least some of the 9/11 accused if there is not a joint trial. Turning back to the hearing, Trivett argued that the government was responding in a vacuum as the severance order was sua sponte and not the result of a defense motion. He added that under Zafiro v. U.S. the Supreme Court has acknowledged a preference for joint trials and that severance is a last resort. Under FRCrP Rule 14, upon which the commission rule is based, if joinder appears to prejudice a defendant the court may order separate trials, sever the trials, or provide any other relief that justice requires.
Trivett also brought up U.S. v. Vasquez, which he cited for the proposition that once properly joined each of the 9/11 accused did not have an individual speedy trial clock but rather collectively had a unitary clock. Under Vasquez, the military judge would consider the length of the delay, reason, any prejudice and whether the defense had asserted a speedy trial right.
The military judge engaged Trivett to clarify that the government’s position was that a 10-month delay unique to one of five accused was acceptable, to which Trivett emphatically agreed. Trivett concluded by discussing how prejudice must be real and not speculative. He quoted Vazquez, where the court found a 24 month delay did not amount to a 6th Amendment violation. He concluded by reminding the military judge that given the absence of a trial date, of a discovery deadline or even a defense speedy trial request, there are no pressing constitutional concerns which warrant severance.
Mr. Harrington argued on behalf of Mr. Binalshibh. He first argued that pursuant to the military judge’s prior rulings, emergency filings did not obviate the 14 day time period the opposing side had to respond, and that here the 14 days had not lapsed. The military judge agreed and set Wednesday, August 1, 2014, at 0900 hours, as the deadline for Mr. Harrington to submit a written response to the Government’s motion. Mr. Harrington was unable to articulate his client’s position on severance saying only that discussions were ongoing. He affirmatively took no position on severance.
At one point the military judge asked whether there would be any prejudice if the military judge temporarily vacated the severance order. Mr. Harrington responded that he was not aware of a commission rule which allowed the military judge to vacate but that there would be prejudice. Mr. Harrington contended that he was a challenging position with lingering issues over his client’s mental health as well as what he termed a cloud hanging over the defense team stemming from the FBI’s activities in interviewing members. Harrington reminded the military judge that he had already lost four members. In terms of moving forward on AE 292, the conflict of interest motion, Harrington stated that he needed but had not received disclosure from the special conflict counsel. Mr. Harrington indicated that just resolving the mental health and conflict of interest issues in U.S. v. Binalshibh would take the remainder of calendar year 2014.
Government Attempted Rebuttal & Rebuttal
BG Martins attempted to argue next but the military judge shut that down as violating the one counsel per argument rule. After some back and forth between BG Martins and the military judge, the military judge made it clear he understood but did not agree with BG Martins’ position. Eventually Clay Trivett returned to the podium and delivered the government’s rebuttal.
Trivett accused the defense of talking out of both sides of its mouth. He explained that while the defense claims to be operating under a cloud of conflict they continue to file motions. Similarly on competency, according to Trivett the defense alternates between claiming there is no issue with their client’s competency but at other times that they cannot move forward due to the competency concerns.
Mr. Harrington was much more focused and I think effective in claiming that the status quo is the severance order. The government’s motion to reconsider should, but does not according to Harrington, provide some new information or argument not previously considered.
The military judge placed the commission in recess followed by an 802 session. We heard the start of the 802, then the audio feed cut out. Initially commission security personnel told us the session was discussing classified evidence and we had to leave. We later learned that the military judge went back on the record and clarified that Mr. Harrington’s response is due Wednesday, August 14, 2014, at 0900 hours, and that the commission will reconvene Wednesday, August 13, 2014 at 1400 hours, with just Binalshibh. Depending on the outcome of that session, some combination of either the 9/11 accused with or without Binalshibh would address motions Thursday, morning, August 14, 2014.
United States v. Binalshibh
AE 312A Government Emergency Motion to Reconsider Severance (Cont)
Wednesday August 13, 2014
The military judge began the session at 1400. Present in the courtroom were counsel for Mr. Binalshibh, Mr. Binalshibh, and counsel for the government. The other 9/11 accused were not present as they were not a party to the motion, some but not all of their attorneys attended. Victims’ family members, media, and NGOs watched from a viewing gallery at the rear of the courtroom.
The purpose of today’s hearing was additional oral argument now that the Defense had submitted a written response to the Government’s motion to reconsider severance. Of note, the Defense motion, for the first time, affirmatively requested severance. The Defense previously had affirmatively taken no position on severance.
Ultimately, the Military Judge granted the motion to reconsider, placing the previous severance order in abeyance. It is not a question of if, but when, severance will again arise. The burden on the defense is presumably less in moving to reverse the decision to abate the severance order than in having to move for severance outright.
Judge Pohl probably erred in his approach on severance. He sua sponte ordered severance. Then, in response to the Government’s inevitable request to reconsider he allowed the Defense to insert at least a claim of prejudice before essentially reversing himself. This is now added to the growing list of appellate issues. While appellate issues are of course inevitable, the 9/11 case already has a fair number of such issues and discovery has yet begun.
Mr. Herrington began by explaining how AE 152 (the noise/vibration in the cell claims) and the mental health/706 issues are intertwined with the severance issue. Herrington argued that these issues could be more fully and quickly addressed if Mr. Binalshibh’s case was severed from the other 9/11 accused. Accordingly, for the first time, Mr. Herrington affirmatively requested severance. He then shifted to AE 292 (conflict issue) claiming he did not know the full nature of the potential conflict.
Clay Trivett presented oral argument on behalf of the government. Interestingly he began by claiming that now was not the time for severance. He clearly acknowledged there may be events in the future which might render severance appropriate, just that the case was not at that point yet. Accordingly, Trivett requested the Military Judge abate the severance order.
In their response the defense made mention of the government, not Mr. Binalshibh, as the barrier for the victim’s families to see justice. Trivett labeled this “the most offensive thing to come from that side of the aisle thus far.” He reminded the Military Judge that Binalshibh has not had to carry his burden and the Defense cannot identify a substantial right of the accused prejudiced by continued joinder.
In response to the Military Judge questions, Trivett seemed effective, pointing out that on Monday the Defense did not have a good answer as what prejudice the accused would suffer and they still do not today. According to Trivett, that is because there is no prejudice, there is no abrogation of a substantial right. Based on the tone and tenor of Military Judge’s questions (and ultimate outcome), Trivett confirmed to the Military Judge that the Government sought abatement, not for the Military Judge to vacate the severance order.
Trivett raised the issue of the MOU saying that the Defense cannot simultaneously talk about delays while not signing the MOU and thus not receiving classified discovery. Trivett theorized that in the not too distant future, the Defense would be subject to either a show cause order or having to withdraw. This indeed appears destined as a major issue for the hearings in October. Trivett closed with a word choice that the Defense, at least Ruiz, is seizing upon. Ruiz repeatedly referred to the Government “treating the concept of individualized justice as a gift.” Ruiz will likely use this sentence, or variants thereof, for a while.
Mr. Herrington on rebuttal claimed that Government had to but failed to meet a burden of showing manifest injustice. He continued that the Military Judge could and should consider prejudice not just from the perspective to Mr. Binalshibh, but as to the other 9/11 accused. He then attempted to clarify the language in the Defense motion discussing the victim’s families, labeling Trivett’s characterization “inappropriate.”
In what seemed an attempt at putting the Military Judge on notice, Herrington said that if he did not receive information concerning the potential conflicts on his defense team he would prepare a declaration which he claimed would then be an issue.
The Military Judge ruled that while concerned about the pace of the proceedings, he granted the Government’s motion and abated his previous severance order.
United States v. Khalid Shaikh Mohammad et al
Thursday August 14th 2014 Session 1
The Military Judge began the session at 0900. Present in the courtroom were counsel for the accused (Khalid Shaikh Mohammad (KSM), Ramzi Bin al Shibh, Walid Muhammad Salih Mubarak Bin’Attash, Ali Abdul-Aziz Ali Mustafa Ahmed and Adam Al Hawsawi), the accused, and initially special review counsel for the government, later replaced by government counsel. Victims’ family members, media, and NGOs watched from a viewing gallery at the rear of the courtroom.
Four of the accused elected to wear Palestinian headscarves in a show of support during their recent armed conflict with Israel.
The purpose of today’s hearing was to first address AE 292 (conflict issue), notably Mr. Herrington’s written response to the Government’s motion to reconsider severance, to which the Government waived submitting a reply brief. Following AE 292 the plan was to address a host of other issues, including the ongoing refusal of 4 of 5 defense counsel to sign the MOU governing the protective order and classified discovery a motion by Army Judge Advocate Jason Wright, a detailed military defense counsel concerning whether he would continue as counsel past his expiration time of service. Ultimately the MJ made very little headway, not resolving a single issue and continuing the commission until October.
Of note, the MOU issue looks to be significant. As discussed more below, the Military Judge appears to have exhausted his patience with defense counsel. In either the next session or perhaps the one after that, absent a change by defense counsel, the Military Judge is likely to either order the defense counsel to show cause or withdraw from the case.
Mr. Herrington on behalf of Mr. Binalshibh, and Mr. Nevin on behalf of KSM, said they wanted the mandated 14 days to respond to the special counsel’s most recent filing that there is no conflict, thus ensuring that the Commission would not resolve AE 292 at this session.
Mr. Ruiz, on behalf of Mr. Hawsawi, objected to rejoinder of Binalshibh and the un-joined motions filed by counsel for KSM and Ali.
Mr. Nevin claimed that as a result of the potential conflict issue he had been “pulling punches and trimming sails” and that he had cancelled a mitigation trip. He insisted that the way forward began with the Supreme Court’s case of Holloway v Arkansas, “thorough inquiry” into potential conflict. This led to an extensive exchange with the Military Judge concerning the MOU. The Military Judge labeled the issue a “conundrum created by the defense” while Nevin contended that the “Government decided to invade defense teams” and that the “Government has sown chaos in the defense.” The Military Judge contended that given that he (the Military Judge) is the decision-maker, it is up to him to decide whether he has sufficient information to rule on the issue. If the investigation into one or more defense teams is in fact over, then Nevin’s concern must be prospective to be relevant. In what appears to be a preview of things to come, the Military Judge pressed Nevin on what the outcome would be, if in the end, the Military Judge does not see a conflict, even if the defense does. The Military Judge’s point seemed to be that in such a circumstance the defense would need to withdraw. Nevin contended that an attorney cannot tell their client “I can’t show you the information, but there is a conflict, and you can/should waive it.” To this, the Military Judge responded the defense could obtain a waiver or withdraw.
Mr. Connell cited what he called the continuing effects of the conflict issue. Connell argued that the conflict is three tiered, potential conflict concerning Mr. Ali, a potential conflict concerning the interpreter on the KSM defense team, and his own personal potential ethics conflict. On the last point, Connell contended that he has potential issues meeting his ethical obligation of competence and that his client provides informed consent. He labeled the situation a government “invasion of the defense function to defense counsel who may have a conflict.”
Somewhat oddly Ms. Bormann, on behalf of Mr. Bin’Attash, argued that she should speak after the government. Her basis was that as the Government had not submitted a reply brief, she did not know what they would argue until she heard their oral argument. She claimed that normally she would argue that in waiving the reply brief the government waived its opportunity for oral argument. But for reasons not made clear she was not so doing here. Her whole argument seemed odd, as the default setting was that she would argue, followed by the government, and then Ms. Bormann would argue last. As a result of her request the Military Judge said she need not argue first, she would argue once after government, which she would have done anyway.
One of the members of the special review team argued for the government. He opened by claiming that the Military Judge was correct that no conflict existed in four of the five defense teams, and that all facts needed to resolve the potential issue in the fifth defense team were already in the record. He stated that the three potential sources of conflict involved:
· Non-attorney member of the Binalshibh team
· Non-attorney member of the KSM team
· The June 24, 2014 meeting between Mr. Harrington and a DoD representative concerning potential conflict.
He then went on to represent that “there are no FBI moles or poison pills on the defense teams.” He stated that the investigation into the possible conflict is over, and clarified that the FBI referring to the investigation to DoD was only because DoD had issued the security clearance of the individuals at issue. He stressed that this referral was not the investigation itself being transferred, continued, or restarted. Given that, any defense fear of investigation at this point is speculative, which cannot give rise to a claim of conflict. And without a conflict, there is no need for independent counsel or the Holloway inquiry.
Ms. Bormann waived oral argument.
Mr. Nevin cited the Lafuente case for the proposition that a defense counsel fear may give rise to a conflict. This led to a lengthy exchange with the Military Judge. The Military Judge queried the following: what should happen if the Military Judge is satisfied that no conflict exists, but the defense has a subjective fear of investigation, what is the next step? Nevin responded that it would be for the defense to withdraw from representation. At one point Nevin stated he did have a conflict based on fear of investigation, which the Military Judge seized on, leading Nevin to qualify his view as a “potential fear.”
Mr. Connell argued that the defense’s attorney client relationship must be viewed through the eyes of the accused and in light of the history of their experience, that is—mistreatment, their mail being censored, CIA and FBI intrusion.
Counsel pushed back on Mr. Nevin’s interpretation of Lafuente, claiming that defense was reading a conjunctive where there was none. According to government counsel, Lafuente was about there either being no investigation or no defense counsel fear. And, in this case, the government is affirmatively representing to the defense that there is no investigation, that the matter has been transferred to DoD for clearance issues not for investigation.
The Military Judge concluded the argument by clarifying that although argument on the issue would continue in October, AE 292QQ is the current operative order in place, meaning that the state of the record is that there is no conflict.
The Military Judge then placed the Commission in recess.