2-15-2013By Daphne Eviatar
Law and Security Program
If observers hoped the parade of officers testifying in the 9/11 hearings this past week was going to redeem the Guantanamo military commissions, they were sorely disappointed.
Pre-trial hearings in the case of the five alleged plotters of the September 11, 2001 terrorist attacks continued at Guantanamo Bay from Monday to Thursday. More than eleven years after the crimes were committed, the case remains nowhere near going to trial, as the lawyers and judge wrangle over how to carry out the first contested trial ever to be held in these commissions.
First created by President George W. Bush shortly after the 2001 terrorist attacks, the commissions are now in their third incarnation. The first commission was declared unconstitutional by the U.S. Supreme Court. The high court has not yet ruled on the legitimacy of the 2009 Military Commissions Act, which created the current system.
Testimony this week underscored just how difficult it will be to assert the legitimacy of this historic trial, expected to determine the fate of these five men held in indefinite detention for the past decade. For several years they were subjected to “enhanced interrogation techniques,” some of which President Obama has acknowledged amount to torture, in secret CIA prisons overseas.
Take, for example, the testimony of Vice Admiral Bruce MacDonald, the senior defense department official presiding over this new court systyem. A retired admiral who assumed his post in 2009, MacDonald lives on the West Coast and runs the Washington, D.C.-based military commissions office mostly from his home base near Seattle, Washington. Testifying at the military commission via video teleconference on Thursday morning, he said he was “frankly disgusted” by the military commissions originally constituted by President Bush, but supports the current version.
Known as the Convening Authority, MacDonald decides which charges the commission will pursue against the accused. He decided to seek the death penalty against all five co-defendants in the 9/11 case.
His testimony on Thursday, however, suggested that that decision was based on severely limited information. Under questioning from Lt. Cmdr. Walter Ruiz, a military defense lawyer assigned to represent alleged 9/11 financier Mustafa Ahmed al-Hawsawi, MacDonald admitted he decided to seek the death penalty before the defense lawyer had secured a translator or expert with the necessary security clearances to speak to his client and collect evidence that might weigh against his execution.
Defendants are entitled to present such evidence in a capital case, including evidence of defendants’ treatment in custody. “Mitigation experts” can help prepare a package of materials for the Convening Authority to consider before finalizing the charges.
In court this week, however, Ruiz claimed that MacDonald brought the charges before Ruiz could gather the relevant evidence.
Defense lawyers are challenging the legitimacy of the charges brought, claiming a long list of practical obstacles imposed by the commissions that they say has made it impossible for them to prepare their clients’ defense. In addition to the delay in obtaining security clearances, defense lawyers say even basic communications with their clients can take months due to long delays in mail delivery to the defendants’ prison cells.
All mail sent by defense attorneys had to be reviewed and “irradiated,” Ruiz said on Thursday, which sometimes caused the paper to burn.
Admiral MacDonald seemed unaccustomed to being questioned by a junior officer, and over the course of his morning testimony MacDonald’s demeanor transformed from one of calm and confidence to angry defiance. He admitted that he knew Ruiz didn’t have a cleared mitigation expert by the time MacDonald finalized the capital charges, but declared loudly: “With the resources you had available to you I believed you had sufficient time to submit a package to me.”
MacDonald will continue his testimony when the commission reconvenes in April. Asked by the judge if in the meantime he would agree to be questioned out of court by Ruiz without a prosecutor present, he replied that he wanted “a member of the government there.” Ruiz reminded him that as a Lt. Commander in the Navy, he, too, is a member of the government.
Much of the rest of this week’s hearings were consumed by questions about whether the government had eavesdropped on defense lawyers’ confidential communications with their clients. Defense lawyers recently learned that the meeting rooms they use to interview their clients are equipped with hidden microphones made to look like smoke detectors. Although Guantanamo officials testified those weren’t used to eavesdrop on confidential attorney-client meetings, the commander in charge of all base facilities admitted under questioning that he didn’t even know the rooms were wired for audio surveillance until the question arose in the military commissions this month.
A military intelligence agency known as J-2 “owns” all the surveillance technology, base officials testified. Guantanamo detention commander Vincent Bogdan testified he approved J-2′s request to “repair” surveillance cameras in the room in December, but wasn’t told that they were upgrading the audio surveillance equipment in the interview rooms as well.
Although he’d toured the facility and been inside the meeting rooms about five times since starting his tour of duty at Guantanamo, Bogdan said he had never noticed the microphones.
Whether mail sent to the defendants by their lawyers has been improperly monitored in violation of the attorney-client confidentiality rules remains an open question as well. On Tuesday, Captain Thomas Welsh, senior military lawyer for the base, testified that legal mail is reviewed by Guantanamo officials for contraband but not read. His former subordinate, Lt. Col. Ramon Torres, testified by video teleconference from Florida that he’d been dismissed from his job at Guantanamo, which involved delivering mail to the so-called “high-value detainees,” after he expressed concern to Captain Welsh about having to open and stamp every piece of their legal mail. “I was concerned about the perception of unethical conduct,” he said on Tuesday. He was replaced by a former employee of the National Security Agency.
Even as this testimony was taking place, we learned later, guards were searching the defendants’ personal legal files stored in their prison cells again. On Wednesday, defense counsel for alleged terrorist trainer Walid bin Attash said her client claimed his cell had been “ransacked” while he was in court the day before and that a stack of legal documents had been removed. All of those documents had previously been approved and stamped by a Guantanamo official before they were delivered.
The next day, defense lawyers for Khalid Sheikh Mohammed and Ramzi bin al-Shibh reported that the cells of their clients — the only other defendants who attended court on Tuesday — had also been searched and previously-cleared materials had been confiscated.
Guantanamo officials confirmed that the cells had been searched and materials seized. Among the items confiscated as “contraband” was a piece of toilet paper with a detainee’s hand-written notes, and a photograph of the Grand Mosque at Mecca. The government promised to return them.