By Andy Worthington, July 8, 2014
In two articles -- this one and another to follow soon -- I'll be providing updates about the military commissions at Guantánamo, the system of trials that the Bush administration dragged from the U.S. history books in November 2001 with the intention of trying, convicting and executing alleged terrorists without the safeguards provided in federal court trials, and without the normal prohibitions against the use of information derived through torture.
Notoriously, the first version of the commissions revived by the Bush administration collapsed in June 2006, when, in Hamdan v. Rumsfeld, the Supreme Court ruled that the commission system lacked "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."
Nevertheless, Congress subsequently revived the commissions, in the fall of 2006, and, although President Obama briefly suspended them when he took office in 2009, they were revived by Congress for a second time in the fall of 2009.
Despite this, just eight cases have been decided since the "war on terror" began -- three under George W. Bush (David Hicks in March 2007, Salim Hamdan in August 2008 and Ali Hamza al-Bahlul in November 2008) and five under Barack Obama (Ibrahim al-Qosi in July 2010, Omar Khadr in October 2010, Noor Uthman Muhammed in February 2011, Majid Khan in February 2012 and Ahmed al-Darbi in February 2014). Of the eight, six involved plea deals, and what credibility the commissions had was shattered when the only two convictions that involved actual trials -- those of Salim Hamdan and Ali Hamza al-Bahlul -- were overturned on appeal in October 2012 and January 2013 on the basis that the war crimes for which they were convicted were not internationally recognized and had been invented by Congress. Further information about all these cases can be found in an article I put together in March, entitled, "The Full List of Prisoners Charged in the Military Commissions at Guantánamo."
The government appealed in the case of Ali Hamza al-Bahlul, and a hearing took place last October, although no ruling has yet been taken by the court. However, the Hamdan and al-Bahlul rulings have already led to the government abandoning plans to proceed with any trials other than the ones currently taking place -- for Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks; for Abd al-Rahim al-Nashiri, accused of masterminding the attack on the USS Cole in 2000; and for Abd al-Hadi al-Iraqi, one of the last men to arrive at Guantánamo, in April 2007.
All of these men were held in CIA “black sites” before their transfer to Guantánamo, where, as I explained in my last update about the commissions in March, "they were subjected to torture -- which, of course, makes a fair and open trial improbable, and has led to a protracted game of cat and mouse as the government tries to suppress all mention of torture, while the defense teams try to expose it."
In this article, I'll provide updates on the 9/11 trial, and in a second article to follow I will look at developments in the case of Abd al-Rahim al-Nashiri and the arraignment of Abd al-Hadi al-Iraqi.
Hearings generally take place every three months or so, and in 2013 defense lawyers in the 9/11 trial spent much of their time challenging a protective order, issued in December 2012 by the chief judge of the commissions, Col. James L. Pohl, accepting calls by prosecutors for material provided to the defense (through the process known as "discovery") to be subjected to a protective order, because it “contains information that, if disseminated without authority, could pose a threat to public safety and national security and could implicate the privacy interests of the Accused and third parties.”
[L]awyers for the prisoners argue that the protective order violates the U.N. Convention Against Torture, specifically through Judge Pohl’s acceptance, as Katherine Hawkins [a lawyer and researcher] put it, that "the defendants' 'observations and experiences' of torture at CIA black sites are classified." The men’s lawyers point out that the ban "violates the Convention Against Torture’s requirement that victims of torture have 'a right to complain' to authorities in the countries where they are tortured, and makes the commission into 'a co-conspirator in hiding evidence of war crimes.'"
In December, at the last hearing of the year, Ramzi bin al-Shibh, one of the five alleged 9/11 co-conspirators, "was ejected twice from the courtroom for interruptions -- in the first instance shouting, 'This is torture! You have to stop the sleep deprivation and the noises,'" as I explained in an article in March. I added, "This led to questions about his mental competency, but these had not been addressed by January 31 this year, because he refused to talk to a mental health board whose members told the judge that they therefore didn’t know if he was fit to stand trial." As a result, Judge Pohl was obliged to put off the next round of hearings, scheduled for February, and these did not take place until April, when bin al-Shibh's competency was once more under scrutiny.
However, bin al-Shibh's mental state was almost immediately overshadowed by what appeared to be a fresh scandal, when, on April 14, defense lawyers "accused the FBI in open court of trying to turn a defense team security officer into a secret informant," as the Miami Herald described it, prompting Judge Pohl to immediately call for a recess.
Jim Harrington, bin al-Shibh's civilian defense attorney, said that two FBI agents had visited the home of his team’s Defense Security Officer, seeking information about who had provided media outlets with a statement produced by Khalid Sheikh Mohammed that had surfaced in January.
Defense Security Officers, who work for outside contractors, "have Top Secret security clearances," as the Miami Herald put it, and are assigned to "guide team members, both lawyers and analysts, on what information should be blacked out in court filings -- and what information can be released as unclassified."
Jim Harrington noted that, when approached by the FBI, the Defense Security Officer -- who, he said, had subsequently been suspended from the case -- was made to "sign a non-disclosure agreement that appeared to draw him into a continuing informant relationship."
In an emergency defense motion, lawyers stated, "Apparently as part of its litigation strategy,the government has created what appears to be a confidential informant relationship with a member of Mr. bin al Shibh’s defense team, and interrogated him about the activities of all defense teams. The implications of this intrusion into the defense camp are staggering. The most immediate implication, however, is that all defense teams have a potential conflict of interest between their loyalty to their clients and their interest in demonstrating their innocence to FBI investigators."
On April 15, Judge Pohl, brushing aside the bin al-Shibh competency question by stating that he was "competent until somebody argued otherwise" (in the Miami Herald's words), "ordered everyone working for the 9/11 defense teams to notify their lead lawyer if U.S. government agencies, including the FBI, had contacted them," and "also sought a proposal from defense lawyers of what evidence he should gather, which people he should question." When asked if he knew about the investigation, the chief prosecutor, Army Brig. Gen. Mark Martins, said, "No, we were not."
Bizarrely, it transpired that the statement by KSM wasn’t even regarded as case evidence, and had been declared unclassified by the CIA, although an emergency prosecution filing at the end of February revealed that "prosecutors treated two copies as court evidence after defense lawyers handed them the document" in December.
On April 17, Brig. Gen. Martins announced that Justice Department lawyer Fernando Campoamor-Sánchez had been appointed as Special Trial Counsel, and was given until April 21 "to explain to the judge, in a 'full factual submission,' what he [had] been able to discover about what the FBI [was] doing."
For his part, Judge Pohl acknowledged what appeared to be an FBI investigation. "Right now," he said, "it appears from the state of the current record" that "there is some type of investigation by the FBI into Mr. Mohammad's team."
On April 21, Campoamor-Sánchez confirmed that the FBI was conducting an investigation that was related to the 9/11 trial, but was unrelated to the release of KSM's statement. In a nine-page filing to the court, he wrote, as the Miami Herald described it, that the government "specifically kept Sept. 11 trial prosecutors in the dark" about what he described as a "preliminary investigation."
The Herald added that the filing "does not make clear what the FBI is investigating." Instead, Campoamor-Sánchez stated that he had given the judge "a second, classified document" in which he described "the nature of the actual FBI Preliminary Investigation being conducted." He added that any wider disclosure would "jeopardize an ongoing FBI criminal investigation," and explained in a footnote that the trigger for apreliminary investigation was "[a]ny 'allegation or information' indicative of possible criminal activity or threats to the national security."
Campoamor-Sánchez asked Judge Pohl for an additional 30 days to find out more about the investigation, and the judge agreed, adjourned the proceedings until June. When the court reconvened on June 16, Campoamor-Sánchez confidently stated that "there is not any informant or mole in the defense camp," adding that the FBI's activity "created no conflict of interest because the agents weren’t investigating defense attorneys, only questioning their support staff." He also stated that the defense lawyers "should trust in the prosecution argument supported by a sworn FBI affidavit that the investigation that kicked off the controversy by questioning defense team members was closed."
The defense lawyers were not entirely reassured. "I do have a reasonable fear. I am trimming my sails. I am pulling my punches," David Nevin, one of Khalid Sheikh Mohammed's lawyers, told the judge. The lawyers explained that they had uncovered four separate episodes of the FBI questioning staff members, as part of two investigations which they were now being asked to believe were closed, even though they had only found out about them because the man questioned in April, Dante James, the classification specialist on the Bin al-Shibh team, had told them about it. The others, as the Miami Herald explained, were "a linguist on the team of the alleged mastermind, Khalid Sheik[h] Mohammed, in January 2013," and, in November, "two former federal law enforcement officers working as civilian investigators" on the teams of Ramzi bin al-Shibh and Mustafa al-Hawsawi.
While the majority of the defense lawyers told Judge Pohl that uncovering the FBI investigation had created "suspicion and uncertainty in the 9/11 defense teams," one lawyer, Walter Ruiz, said he had found no conflict of interest. Ruiz represents
Mustafa al-Hawsawi, a Saudi captured with KSM in Pakistan in March 2003, who is accused of providing financial assistance and organizing travel arrangements for some of the 9/11 hijackers, and he explained that, although one of the two civilian investigators questioned by the FBI was his civilian investigator, Thomas Gilhool, "he had discussed what the FBI had done with both Gilhool and Hawsawi and concluded that, for his part, no conflict of interest exists."
Furthermore, he and his client were seeking a separate trial because al-Hawsawi is "not interested in more delays." Ruiz said that a separate trial would "let him more swiftly litigate several issues," in particular the conditions at Camp 7, where the "high-value detainees" are held. He called it "pseudo isolation, which in long-term detention is sometimes considered torture." He also criticized the lack of family contact and what he described as the inadequate provision of religious facilities, and called the manner in which the men have been held "tremendously embarrassing to our armed forces."
While the circumstances in which the FBI investigation was discovered cast another shadow on the credibility of the commissions, as well as providing another delay of many months in the seemingly interminable pre-trial hearings, it was not the only problem to surface in the last few months.
On April 2, James Connell, one of the lawyers for Ali Abd al-Aziz Ali (aka Ammar al-Baluchi), one of the five alleged 9/11 co-conspirators, was "trying to get a copy of the secret Senate report on CIA interrogations that has caused a bitter rift between the agency and Congress," as the Miami Herald described it. Connell explained that "the report and related documents contain information about the torture of his client." The 6,300-page report, commissioned by the Senate Committee on Intelligence, took four years to complete and was delivered to the committee in December 2012, but it has not yet been released, as all the parties involved -- and particularly the CIA -- argue about how much of it should remain classified.
Connell's efforts have so far yielded no results, but on May 22 the Miami Herald reported that his interest in the torture report, and its repercussions for the 9/11 trial, were shared by Sen. Carl Levin (D-Mich.), the chair of the powerful Senate Armed Services Committee, and Sen. Dianne Feinstein (D-Calif.), the chair of the Senate Intelligence Committee.
In a letter to President Obama, dated January 6, they wrote, "We write to urge that you direct all appropriate action to address the ongoing delay in the military commission trial of Khalid Shaykh Mohammad [sic] (KSM) and four other detainees being prosecuted at Guantánamo in connection with the 9/11 terrorist attacks." They added, "Much of the delay is related to the continued classification of the information concerning the now defunct CIA Detention Interrogation Program."
As will be discussed in detail in my forthcoming second article providing updates about the military commissions, on April 17 Judge Pohl ordered the CIA to provide details of the "black site" detention -- "names, dates and places" -- to Abd al-Rahim al-Nashiri's lawyers. The judge explained that the lawyers "are entitled to the information to prepare Nashiri’s defense." Khalid Sheikh Mohammed's lawyers have asked Judge Pohl to do the same in their client's case, but progress is slow, as the CIA is still resisting Judge Pohl's order in al-Nashiri's case.
However, the lawyers' concerns were echoed by Sens. Levin and Feinstein in their letter, in which they stated that it was urgent that the relevant information is declassified, because "the delay is further undermining the reputation of the military commissions with the American public and our friends and allies overseas." They added, "The continued classification of information also interferes with our country’s long-delayed, but important efforts to publicly shine a light on the misguided CIA program you rightfully ended almost five years ago."
The senators also said that if the administration did not resolve these issues, the 9/11 trial should be moved to a federal court -- where, of course, it was supposed to take place, after an announcement by Attorney General Eric Holder in November 2009, until critics began a backlash and President Obama backed down.
In a letter dated February 10, White House Counsel Kathryn Ruemmler responded by stating that President Obama shares the senators' commitment to “facilitat[e] the prosecution of those charged in connection with the 9/11” attacks, but added that "declassification decisions, even with respect to historical legacy programs, are fact-based and must be made with the utmost sensitivity to our national security."
Ruemmler also noted that the president and CIA director John Brennan "are committed to working with you and others on your respective committees to ensure that information regarding the RDI [rendition, detention and interrogation] program is declassified, consistent with our national security interests."
Accurately, I believe, the Miami Herald described the Levin-Feinstein letter as "the latest turn in what’s erupted into an extraordinary behind-the-scenes battle between the CIA and its overseers in Congress over the Senate Intelligence Committee’s $40 million investigation into the interrogation program," although the White House's careful response showed only that the brakes are still on regarding the report's eventual release.
And in the meantime, at Guantánamo, justice, in the cases of Khalid Sheikh Mohammed and the four other men accused of involvement in the 9/11 attacks, appears as elusive as ever.