Updates from Today’s 9/11 Case Hearings Before the Military Commission

Today was the second public session of this week’s pre-trial motion hearings in the 9/11 case before the military commission in Guantanamo Bay.   As I am sure many readers likely know, these pre-trial hearings have been ongoing for some time now.  I thought I’d share with Just Security readers, two items of note from the military commission’s hearings thus far this week:

Bin al Shibh’s Removal from the Courtroom

For both the third time (this morning) and the fourth time (this afternoon) in two days, detainee Ramzi Bin al Shibh was removed from the courtroom for disrupting the proceedings.   As Daphne wrote yesterday over at the Huffington Post, Bin al Shibh was ejected by Judge Pohl because of outbursts over his alleged treatment by the Joint Task Force (JTF) Guantanamo at Camp 7, the facility where the high value detainees (HVDs) are held.   Bin al Shibh claims (but the government denies) that the guards subject him to “sounds” and “vibrations” throughout the night, which keep him from sleeping and, in turn, prohibit him from meaningfully participating in the hearing.

The problem, which Wells Bennett has covered in detail over at Lawfare here and here, is that Judge Pohl has already issued an order to the JTF to stop any noises.  Judge Pohl said yesterday that if the sounds and vibrations nevertheless continue, defense counsel should raise the issue in a legal motion and submit evidence of the alleged treatment.  And this afternoon, Bin al Shibh’s attorney Lt. Cmdr Kevin Bogucki did just that, filing an emergency motion about the alleged abuses about which his client has repeatedly complained.  The motion, however, was not filed before Bin al Shibh was ejected from the courtroom (again), saying to Judge Pohl, “[i]f you have no power to control the government, then you have to resign . . [t]his is my life. This is torture,” and apparently calling the commander of JTF, Col. John Bogdan—who was on the witness stand at the time—“a war criminal.”

Bogucki urged the court to consider the emergency motion this afternoon, arguing that the infringement on his client’s right to participate meaningfully in the proceedings is particularly acute because this is a capital case.   However, Judge Pohl was reluctant to consider the motion, of which the government had only learned several hours earlier.  Nevertheless, Judge Pohl did ask the government to review the motion this evening, saying the court would return to the matter first thing tomorrow morning.  Whether or not the government will ask for more time to prepare its response, gather evidence to contradict Bin al Shibh’s allegations, and the like remains to be seen. So it is uncertain whether the defense’s motion will be heard this week or not—and by extension, whether we can expect Bin al Shibh’s outbursts to subside.  Regardless, this issue looks to continue to be raised either through legal motion or verbal eruptions for the remainder of this week’s hearings.

Adequate Access to Counsel, Travel Schedules, and JTF Capacity

Beyond Bin al Shibh’s outbursts, much of the substance of today’s session of pretrial motions focused on the defense motion to require the JTF to allow more flexibility for attorney-client meetings.  Cherly Bormann, defense counsel for detainee Walid Bin Attash, presented evidence that JTF’s restrictions on attorney-client visits imposed unreasonable restraints on detainees’ access to counsel.  With Col. Bogdan on the witness stand for much of the day, we learned a great deal about the visitation rules and procedures for attorneys visiting their HVD clients.

For example, the standard operating procedures (SOPs) require attorney-client meetings to be requested 14 days in advance.  Meetings with attorneys are not allowed after 4:00pm, and no more than six people (including the detainee himself) are allowed in the room at a time. Visits are allowed only Monday through Friday, and no visits are allowed, except with special permission granted, over the weekends or during federal holidays.  Furthermore, the JTF only allows for six attorney-client meetings at a time, but priority is not given to the military commission’s defendants who face capital punishment—even if, as Bormann’s questions revealed, preparation for military commission hearings was needed.

The defense tried to present evidence to establish that the JTF rules did not adequately take into account the realities of trying a case in Guantanamo, specifically, or a capital case more generally.  Bormann’s questioning raised, for example, the fact that travel to Guantanamo, which requires travel on government planes operating only on certain days of the week, made it impossible to visit with her client on the day she arrived at the base.  “It boggles the mind that I cannot land in Guantanamo and visit with my client in the same day because [JTF] close[s] at 4pm.” Bogdan stated that JTF did not consider the travel schedules when either determining its visiting hours or days on which visits were allowed or when granting exceptions to the SOP.  Additionally, as Daphne wrote earlier today, the limit on six people in the room at a time ignores the realities of death penalty cases that “often need to bring a group of more than five — including lawyers, paralegals and various kinds of experts — into their meetings” in order to establish a defense or mitigation.

In response, the prosecution’s cross examination focused on, among other things, the reasonableness of alternative procedures or policies and the realistic chance that they could be implemented.  Cross-examination revealed that the portion of the JTF responsible for detainee transportation—the Task Force Platinum (TFP)—is a highly specialized unit with TS/SCI clearance and to expand the force to, say, allow for night or weekend visits would require expansion of the TFP.  Bogdan said such a decision would be “significantly” above his pay grade and result in a “very costly” and “exceptionally lengthy” process to obtain the necessary TS/SCI clearance for new members of the expanded TFP.  Furthermore, Bogdan stated that only twenty-three days over the last 365 had all six meetings rooms been used at the same time. Therefore, he thought it would be unlikely that the Joint Staff would think it would be a cost-effective deployment of resources to increase the TFP unit.

Arguments on the motion were expected to follow the questioning of Col. Bogdan, but a procedural question arose in re-direct about the proper way to handle potential classified information with respect to the JTF security levels and staffing capacity, resulting in delaying argument until at the earliest later in the week. 

About the Author(s)

Thomas Earnest

Former Managing Editor of Just Security (2013-14) Follow him on Twitter (@thomasdearnest).