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February 06, 2019

Detached Retina Stalls 9/11 “Mastermind” Trials at Guantanamo Bay

By Joy Bagwell

This past week, the alleged 9/11 masterminds sat for their 33rd round of pre-trial hearings in the Guantanamo Bay military commissions system. The five defendants—Khalid Sheik Mohammed, Walid bin Attash, Ramzi bin al Shibh, Mustafa Ahmad al Hawsawi, and Ammar al Baluchi—are charged jointly with various war crimes related to their alleged roles in the 9/11 attacks. After 33 rounds of pre-trail hearings, this case is still hung up on the systemic issues that plague it. 

The first hiccup occurred Monday morning when the recently appointed judge, Marine Col. Keith Parrella, advised each defendant of their right to attend proceedings. When asked to confirm that he understood his rights, al-Shibh said, “As I told you last time, I cannot answer your questions because you are not qualified judge for this case” [sic]. These sentiments echo broader concerns about Judge Parrella’s suitability to preside over the 9/11 trials. Prior arguments called for his recusal in light of his close relationship to the prosecution team and his involvement with government agencies responsible for the torture of Mohammed.

In response to these comments, Judge Parrella accused al-Shibh of being insubordinate and potentially putting everyone’s “safety in jeopardy.” James Harringon, the civilian death-penalty lawyer for al-Shibh, dismissed these concerns and asserted that his client was simply expressing a legal opinion reflected at length in prior pleadings. Harrington pointed out that “we’ve been here since 2012” and al-Shibh has consistently complied with the guard force and the rules of the courtroom.

In the Monday afternoon session, the commission addressed an ongoing conflict of interest issue arising from recent FBI questioning and “rough surveillance” of a former paralegal for the bin Attash defense team. Defense attorneys said this instance of surveillance is part of a larger pattern of interference that impedes their relationships with their clients and puts them in conflict with the ethics rules of their local bar associations. To be sure that their attorney-client confidences were not being violated, they asked Judge Parrella to investigate the matter and determine the extent to which defense team members were under investigation by the FBI or other government agencies. Judge Parrella agreed to the investigation, but conducted it through an ex parte meeting with attorneys from the Department of Justice. Defense counsel, despite their top-secret security clearances, were not permitted to attend.

Without explanation, Judge Parrella determined that no current members of the defense teams were under investigation by the U.S. government. Counsel were frustrated by the lack of transparency and observed that their concerns partially relate to a former defense team member, not a current one. Cheryl Bormann, civilian death penalty lawyer for the bin ‘Attash team—arguing with the flu and a fever—stated that she could rely on the findings of a judge only if “there's some basis to rely upon.” She also warned that all current defense team members would be implicated by FBI questioning of a paralegal who worked for her team for three years and was severed from the team only a few months ago.  

Finally, in a brief Tuesday afternoon session, defense counsels sought to attain an open, unclassified hearing on the anticipated cross-examination of a former translator for al-Shibh’s defense team. The translator came under scrutiny when the defendants saw him in court and recognized him from their time in a CIA black site. Alka Pradhan, human rights counsel and civilian attorney for al Baluchi’s team, posed two questions to the court: how the interpreter sought employment with the Military Commissions Defense Organization (MCDO), and  whether anyone or anything prevented him from disclosing his previous employment with the CIA to MCDO. Noting that the First and Sixth Amendments, along with relevant caselaw, establish an “exceptionally high bar” for restricting public access to a proceeding, Pradhan argued for mitigating measures that would enable the public to know if the U.S. government was “at all involved in actively undermining the capital defense in a 9/11 trial.”

Progress on each of these issues grinded to a halt Tuesday night when Judge Parrella was medically evacuated from the island for surgery on a detached retina. Citing Judge Parrella’s eye injury and Ms. Bormann’s flu, Jay Connell, civilian death penalty lawyer for al Baluchi, observed in a Friday morning press conference that the military commission trials are only one health issue away from imploding. While Judge Parrella was able to leave the naval base to receive medical care, the National Defense Authorization Act prohibits detainees from being transferred to the United States, even for emergency medical treatment.

Beyond the health-related complications, Connell highlighted a host of legal issues that complicate military commissions trials. Battles over classified information, the 18 month dormancy of the Court of Military Commissions Review, and the D.C. Circuit’s ability to halt trials in the eleventh hour, for example, are just the tip of the iceburg. For families seeking justice, and for a country seeking closure for crimes that killed thousands, the fragility of the Guantanamo commissions system has created more complications than solutions.