9-16-2013By Daphne Eviatar
Law and Security Program
Twelve years after the September 11 attacks and a year and a half after their arraignment, the case of five men accused of masterminding the killings of nearly 3000 people remains stuck in pre-trial hearings at Guantanamo Bay.
At their first appearance in the case in May 2012, the defendants took the opportunity to object. Rather than the usual quick-and-dirty arraignment where the judge reads the charges and the accused plead guilty or not, all within a matter of minutes, the five men dragged the proceeding on for 13 hours. They dropped to their knees to pray in the courtroom aisles, refused to answer the judge’s questions, and even crafted paper airplanes out of legal documents.
On Monday, we saw a streamlined version of that. As Judge James Pohl read the five men his usual script explaining their rights to be in the courtroom and communicate with their lawyers as the case proceeds, two of the men protested.
Khalid Sheikh Mohammed, in camouflage vest and long red hennaed beard, began shouting in Arabic something about his restricted ability to meet with his lawyers. The translation was cut off, so it wasn’t clear exactly what he said, but Judge Pohl shut him down immediately. Then Ramzi bin al Shibh, also in camouflage over his white robe, began shouting in English. Judge Pohl ordered him removed form the courtroom.
Mohammed’s attorney, David Nevin, tried to appease the judge by explaining that his client appeared to have misunderstood the judge’s words. When Mohammed heard the judge say he has the right to communicate with his lawyer, he took that to mean a right to meaningful communication with his legal team not just in court, but throughout his case. That’s where he was wrong.
“Our meetings are very constrained,” Nevin told Judge Pohl, explaining that Khalid Sheikh Mohammed worries the meetings are under surveillance, and his legal papers and meeting notes are routinely seized and searched by guards.
“Our meetings are not what you’d expect in a normal federal or state court proceeding,” said Nevins. Nevins cited Paragraph six of the script Judge Pohl read, which says the defendants understand that “my failure to meet with my defense counsel may negatively affect my case.” Nevin explained: “That’s what my client is concerned about.”
Judge Pohl apparently wasn’t interested: “If there’s an issue about that, I got it,” he said, after telling Khalid Sheikh Mohammed: “I’m not discussing any legal rights with you.”
Immediately after, Ramzi bin-al Shibh began airing his complaints about his rights in this case. When Judge Pohl tried to quiet him, he shouted in English: “I have the right to talk.”
“No, you don’t,” said Judge Pohl, and ordered guards to forcibly remove him from the courtroom.
Given his experience at the arraignment, and other occasional vocal outbursts from defendants at these hearings since then, Pohl’s response wasn’t surprising. He’s under a lot of pressure to keep order in the Guantanamo courtroom, as observers and media from around the world are watching.
But the two accused men’s responses aren’t surprising, either.
“Your failure to meet with and cooperate with your defense counsel may negatively affect the presentation of your case,” Judge Pohl read from his notes to the five defendants on Monday morning, as he reads to them at the beginning of each week of these Guantanamo hearings.
The ability of the defendants to meet and cooperate with their defense counsel is extremely limited, however. For one thing, the defendants are not allowed to call their lawyers. When lawyers do speak to their Guantanamo Bay clients by phone, the lawyers must make those calls from one of a limited number of specialized “secure” telephones provided by the government. The defendants can meet with their lawyers — who live in various parts of the United States and have only limited access to Guantanamo Bay — only in specialized rooms provided by the military base. Earlier hearings have revealed that for years those rooms were equipped with hidden cameras and audio recording equipment for purposes of government surveillance, without the defendants or their lawyers knowing about it. The government claims those monitoring devices have since been removed or disabled. But it’s not clear whether earlier communications were monitored.
Meanwhile, the defendants’ high-security prison cells are routinely searched by guards and their legal documents and notes confiscated. Courtroom microphones have been able to capture privileged attorney-client communications. And all mail the defendants receive, including from their lawyers, must be screened for “contraband.” In the past, widely-available books and magazines, including John Grisham novels and the 9/11 Commission report, have been deemed contraband.
On top of that, defense lawyers complain their own investigations of their clients’ cases arehampered by government restrictions on what they can ask or talk about. The defendants themselves aren’t allowed to speak about their experiences in U.S. government custody to anyone without the highest level of security clearance, because the government claims their own experiences are classified. And the lawyers aren’t allowed to interview other witnesses about the defendants’ experiences in U.S. custody unless the interview takes place in a government-approved “secure area.” Even then, they can’t share what they learn with their own clients.
Before today’s hearing was adjourned due to a defense lawyer’s illness, the judge was scheduled to hear arguments about whether the case should be delayed until next year due to security problems with the government-issued computers. Prosecutors have had access to defense counsel’s e-mails, defense files of investigative materials have disappeared, and one lawyer complained at a previous hearing that internet searches on his team’s computers have been monitored by the government. Defense lawyers claim that’s made it impossible for them to fairly represent their clients and maintain the attorney-client confidentiality that legal ethics rules require.
In light of all this, it’s not so surprising that, when warned that “failure to meet with and cooperate with your defense counsel may negatively affect the presentation of your case,” a couple of the accused men might object.
The hearing is scheduled to resume Wednesday morning.