Blog
Published on July 26, 2016
By Molly Wooldridge
Last week I attended the first of two weeks of pre-trial hearings in the Guantanamo Bay military commission case against the five detainees allegedly responsible for the 9/11 attacks. Nearly 15 years after the deadliest terrorist attack on U.S. soil, the commission remains bogged down in a heap of tangentially related pre-trial motions that have little to do with the merits of the case and have more to do with the confusion surrounding the role of military commissions in general.
Members of the defense teams reported that the judge would hear eight motions over the week. However, due to delays that have become the norm for the commission, arguments for only three motions were heard while the judge, Army Colonel James Pohl, made rulings on just two of them.
Camp Justice, where the commission’s courtrooms are located, is an underwhelming hodgepodge of temporary facilities that look as if they could be uprooted at a moment’s notice. The abundance of beige barracks and military personnel make it clear that you are on a military base. From a cursory glance, nothing hints to the fact that Khalid Sheikh Mohammed (KSM) and his four co-accused are on trial a short walk up the road.
A classified court session lasting less than 30 minutes was held on Monday. No court was held on Tuesday.
Court proceeded in open session on Wednesday morning. The day began with shouting from Walid bin Attash, an alleged former bodyguard for Osama bin Laden. The observers could not hear bin Attash because he began shouting before the session was called to order, which commences the audio in the gallery. It became clear that the outburst was in regards to bin Attash’s displeasure with members of his legal defense team.
Wednesday’s hearing was dedicated to the prosecution’s motion that would allow bin Attash to fire members of his legal defense team—namely his lead attorney Cheryl Bormann and Michael Schwartz. The defense argued that either bin Attash must keep his whole defense team, or he must fire everyone and represent himself—known as “going pro se”—something bin Attash first requested last October.
The prosecution argued that there should be a third option and bin Attash should be able to fire some of his team. The defense team countered that this would essentially lead to ineffective counsel, which is not permissible by law. The judge ruled in favor of the defense, requiring bin Attash to decide whether to continue with his whole defense team or defend himself pro se.
Thursday morning’s hearing was delayed two hours due to issues regarding bin Attash’s absence in the courtroom. While the defendants are usually not required to attend court, if they elect not to attend they must sign a document waiving their right to be present. Bin Attash signed the document but hand wrote additional language explaining his waiver. The court had difficulty determining whether this amounted to the necessary unequivocal waiver of his right to be present.
Another defendant, Mustafa al Hawsawi, was also absent from court on Thursday. Hawsawi does not attend court unless he is required, due in part to injuries that he received while detained at CIA black sites. Hawsawi was subjected to rectal rehydration, a so-called “enhanced interrogation technique” of the CIA’s that involves inserting a tube into a detainee’s anal passage and “feeding” him. As a result of this cruel treatment, Hawsawi suffers from a multitude of health issues including tearing in his rectum, which is why when he is in court, he can be seen sitting on a pillow.
Once court finally resumed, the judge heard arguments on only two motions. The first was from KSM’s lead attorney David Nevin, who asked Judge Pohl to recuse himself from ruling on the motion of whether Judge Pohl and the entire prosecution should be removed from the case for the destruction of important information.
Nevin claimed that in February, the defense learned that the prosecution destroyed certain evidence with Judge Pohl’s consent—allegedly about a CIA black site where some defendants were tortured, which Judge Pohl previously required to be preserved. While Judge Pohl denied recusing himself on this motion, he will rule later on whether he must recuse himself and the prosecution from the entire case.
Michael Schwartz, defense counsel for bin Attash, made the second motion. He sought funding for an expert consultant to assess the reliability of a government report on the habitability of Camp Justice. There have been seven reported instances of civilians and service members who have contracted cancer after spending time at Camp Justice. Mr. Schwartz requested funding to hire an expert consultant to independently review the government’s findings on the level of contaminants in the soil at the camp. The judge has not yet ruled on this motion.
Friday’s proceedings were also closed to observers.
This week’s pre-trial hearings epitomized what the military commission has come to represent: a disastrously mishandled situation that is plagued by confusion and inefficiencies. While the commission continues to struggle to resolve processes for simple administrative procedures such as a defendant’s waiver to be present in court, U.S. federal courts have decades of precedence to rely upon to resolve such issues. And while the pre-trail hearings that began in 2012 continue to this day, U.S. federal courts have a proven track record for trying terrorism-related cases with nearly 500 convicted terrorists since 9/11.
In the name of justice and the rule of law, the military commission should be shut down and the five detainees should be prosecuted in a U.S. federal court.
