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December 03, 2018

KSM: Over a Decade of Trials, Still No Justice

The continuing disarray of the Guantanamo military commissions was on full display earlier this month at the pretrial hearings for the five co-defendants accused of plotting the 9/11 attacks. Recently appointed Judge Parella, the third judge assigned to the case since the defendants were arraigned in 2012, heard motions on issues arising from the dysfunction and confusion that have characterized this shaky, makeshift legal system.

Trouble began even before Judge Parella heard motions as defense teams found mold and asbestos in their offices, clothes, and classified papers. Two defense team members were allegedly sent to the base emergency room with breathing problems, while another developed a rash after spending only forty minutes in the facilities.

Once the mold was dealt with, the main matter occupying the court was the firing of then-Convening Authority Harvey Rishikof, who oversaw the commissions, and his legal advisor Gary Brown. They were fired in February 2018 by Secretary of Defense Mattis after only 10 months on the job. At the time of his termination, there were reports that Rishikof had been exploring plea deals, which would have involved the defendants serving life sentences in exchange for taking the death penalty off the table.

Defense counsel spent a full day questioning then-acting Defense Department General Counsel William Castle over his recommendation that the Secretary fire Rishikof and Brown. Castle emphatically denied that Rishikof’s efforts to negotiate plea deals impacted his recommendation. Several times Castle told the Court that whenever Rishikof brought up the subject, Castle would wave his hands and tell Rishikof that he didn’t want to know about the matter. He denied exercising any undue influence over the legal proceedings.

Defense lawyers brought up a phone call with then-Attorney General Jeff Sessions, Mattis, and Castle, during which Sessions said that there should be “no deal” and Castle replied  “no deal.” Castle said he had been confused about what Sessions was discussing and had said “no deal,” to indicate that he himself had not negotiated any deals. He said that only later did he realize that Sessions was referring to plea deals.

Castle also admitted to other missteps. He said he had “a bit of egg on [his] face” over a December 2017 memo he sent to Mattis recommending the firings, which Castle later determined might not have been legally sound. He explained how he then ordered  a convening of an expert panel to advise him on proper grounds for termination.

Castle maintained that other matters formed the basis for his recommendation that Rishikof and Brown be terminated. He called Rishikof a “loose cannon” who had failed to properly coordinate with other Defense Department offices in his work. In particular, Castle took issue with Rishikof bypassing Southcom Commander Admiral Kurt Tidd and going directly to the Coast Guard to request that an aerial photo be taken of the commissions court and Rishikof’s proposal for reorganizing the commissions, referred to as the “King Me Memo.”

Judge Parella also heard the unclassified portion of a defense argument to depose a former CIA interpreter who, prior to translating for defendant Bin al Shibh’s team, may have worked at the CIA black site where Bin al Shibh was held. Bin al Shibh’s legal team is concerned that the interpreter lied about his previous employment and argue that deposing the interpreter would illuminate the conditions of black sites. Defense counsels are also seeking testimony from CIA Director Gina Haspel, who they argue is ultimately responsible for determining what information gets released to the defense teams. 

Other issues that arose included the defense team’s seeking information on the FBI’s role in and link to CIA black site interrogations, the publicity of certain classified documents, and the ability to see documents seized in a U.S. raid on the Taliban Embassy in Peshawar, Pakistan. Defense counsel are also seeking a court order allowing for family visits.

At the end of the week, the actual trial, let alone justice, seemed no closer. With every passing week, the military commissions at Guantanamo look worse and the federal court system—which has produced hundreds of convictions in terrorism trials since 9-11—looks better by comparison.