Defense Systems Journal (DSJ) was invited to Naval Station Guantanamo Bay by the Department of Defense (DoD) to report upon the 29th pre-trial hearing of the Military Commission (MC) prosecuting the five accused suspects for the attacks that killed 2,976 people in New York City, Somerset County, Pennsylvania, and at the Pentagon on 11 September 2001.  

This trip (30 April – 3 May) marked DSJ’s third trip to GTMO associated with the Military Commission (MC) and DSJ’s second in connection with the pretrial hearings associated with the following:   

These five 9/11 defendants were charged and arraigned in 2012 with commiting the following crimes: conspiracy; attacking civilians; intentionally causing serious bodily injury; murder in violation of the law of war; highjacking or hazarding a vessel or aircraft; and terrorism.  Despite motions from at least one of the five defendants to sever (separate) their cases, their trials are joined.

At base, as detailed in the prelimary hearing outlined provided below, the pre-trial hearings are a thrust (Defense Counsel) and parry (Prosecution) adjudicated by the Military Judge (Army Colonel and Chief Presiding Judge for the Military Commissions James L. Pohl) that will define the informational baseline for the actual trial, a trial that many observers, including KSM Learned Counsel David Nevin, say is years away from commencing.

Defense counsel has argued in pre-trial motions (for years) that the accused are profoundly if not hopelessly disadvantaged in their legal position due to a host of issues including their past and present treatment at the hands of U.S. Government (CIA) officials and contractors, lack of information (discovery) provided to their legal representatives, and by unique and onerous (security) restrictions on how their legal representatives can advance their cases.  There is a sense here that what defense counsel is REALLY doing here is simply building a case to have their clients spared the death penalty when the guilty verdicts come in at sentencing time from the miltiary officiers who will comprise the Military Commission.

Below is a summary of the major issues that were to be before the Military Commission this week.  Most of these arguments were to be carried out in open session, some in classified session.  

(1) Defense access to additional information about CIA torture, including locations of black sites, documents about the buildings themselves, and interrogator notes and reports.  Since 2012, the defense has been seeking access to information about CIA black sites and the torture of the defendants in those black sites. The prosecution has produced some information with all dates, locations, and people obscured. A series of defense motions seek to compel accurate information regarding the black sites and the events which took place in the black sites. 

(2) Personnel Prosecution rules prohibiting the defense from interviewing current or former members of the CIA and people who know them. Beginning in September 2017, the prosecution has imposed new restrictions on defense investigation efforts, including a ban on contact with current or former CIA employees or contractors. The defense maintains these restrictions prevent a fair trial; the prosecution maintains they are necessary for national security. 

(3) Political interference with the military justice process, including the State of the Union Address and the coordinated firing of senior military commissions officials. On January 30, 2018, President Trump discussed the issue of Guantanamo, including the jurisdiction of military commissions, in the State of the Union address, and ordered a policy review. On the weekend of February 3, 2018, the Department of Defense fired the two highest military commissions officials. The defense maintains that these actions constitute unlawful political influence over the military justice process. Separately, the defense also contends that President Trump has made numerous comments in the media and on Twitter that amount to unlawful influence. 

(4) Defense access to other evidence in the discovery process.  The defense has filed multiple motions requesting that the military commission compel the government to produce relevant evidence.

(5) Conditions of confinement issues, including defendants’ inability to meet with members of their defense team, the search or return of the laptops issued to the defendants, requests by defendants to use MRI testing to determine the physical effects of their torture, and restrictions on the dissemination of artwork from the camps. 

(6) The transparency of the military commissions, including the slow release of unclassified pleadings and the refusal to release almost all classified pleadings and transcripts in redacted form. The military commission website is often months behind its required schedule in the release of unclassified pleadings, and years behind in the release of redacted versions of classified pleadings and transcripts. The defense challenges the slow or nonexistent release of court documents as a denial of the right to a public trial.