On Friday, 4 May 2018 after the Military Commission’s classified and unclassified proceedings ended and the 29th pre-trial

David Nevin, Lead/Learned Counsel to Khalid Sheikh Mohammed

hearings concluded, David Nevin, Lead/Learned Counsel to Khalid Sheikh Mohammed, told reporters that he views the unifying themes of the week as those of Government intrusion into the trial process and the fundamental inconsistency of the trial with U.S. national security.  Key points raised in this regard by Mr. Nevin and Marine Corps Lt. Colonel Derek Poteet, also of Mr. Mohammed’s defense team, include the following:

  1. Mr. Nevin argued in AE559 that President Donald J. Trump’s comments about Guantanamo and also about the Bergdahl case, “sends a message to potential jurors that if they return a verdict that the President doesn’t like, they are going to catch a lot of flak from a guy who gets a lot of media and who has a lot of people listening to him.”  Said Nevin: “That’s not good, as a matter of fact, that’s the death knell of fairness when jurors are put under that kind of pressure.”
  2. Nevin referenced AE524, which addressed Government-imposed limitations on the ability of defense counsel to approach present and former CIA agents to speak with them about the interrogation of the accused.  Said Nevin: “What’s most interesting about that is that we went, from back in 2013, with Prosecutors standing up and saying that the Defense can interview anyone, anytime, anywhere, about anything.  We go from there, to starting back in September 2017, seeing the Government take at least six different positions on this issue.  When you see that, you know what’s going on is that there are people behind the scenes saying: “no, no, wait, you can’t do that!”  It is self-evident that this is why all these positions have been changing.”
  3. Nevin also referenced AE555, Mr. al Baluchi’s motion that addresses the February 2018 firing of the Office of Militiary Commission’s Convening Authority Harvey Rishikof and his legal advisor.  He recounted the courtroom discussion that the Convening Authority had engaged in a number of activities that were controversial, including the commutation of the sentence that was wrongly imposed on General Baker, the issue of properly resourcing the defense, the [prospective] settlement of the 9/11 case itself, and agreeing to a security sweep of building-secure defense spaces and many other issues.  Instead, Nevin noted, the Government’s claim was that the Convening Authority was fired over a couple of issues [including seeking a new aerial photo of part of GTMO from the Coast Guard when it had been denied by DoD].  Charged Nevin: “I will just say that the facts are wrong on that and I believe that that will be borne out in subsequent proceedings.”
  4. Furthering the line of “interference” argumentation in response to query, Nevin also discussed AE286AA, which requests Defense counsel access to more than the publicly available redacted Executive Summary of the “Torture Report” of the Senate Select Committee on Intelligence (SSCI) as well as the millions of pages of primary source material underpinned/informed that undergirds it.  Mr. Nevin said that he knows that the Government has claimed that it has whittled those 6 or 7 million pages down to 17,000 pages that has been provided to the judge, but he can’t know for certain because he hasn’t seen the original, adding: “The idea that 3/10thof one percent of the whole is all that is conceivably relevant to preparation of the defense is… an extremely counterintuitive idea.”
  5. Subsequent discussion addressed AE530VV, a motion related to the search/return of the laptops issued to the defendants.  Mr. Nevin characterized as “pretty fanciful” the Government’s concern over the inappropriate use of the laptops provided to the accused, noted that the subject laptops are “densely protected against being able to communicate with the outside world” and lack the cards and ports required for such communication.  He noted that in the 21stcentury, computers are how we manage large quantities of information and adds that if defense counsel had received the full measure [of information] that we thought we should have received, that point would be even stronger.  The current lack of laptop computers in the hands of Mr. Mohammed and the other accused, Nevin notes: is “very disruptive to the preparation process.”

Stepping beyond his citation of trial motions related to specific Government interference in the efforts of counsel to build a defense, Mr. Nevin referenced AE558, a motion filed on behalf Mr. al Hawsawi, which calls for dismal of the case because its fair adjudication is fundamentally inconsistent with stated national security objectives.

Mr. Nevin noted that he didn’t quarrel with much of the CIA’s insistence on secrecy, but added: “I believe that a big part of what is being kept secret is to protect the people who tortured my client and others, and I think that clearly the Executive Order is an inappropriate reason to classify information.” Nevin said that, more generally, he agreed that the Executive Branch has wide authority to classify information.  The problem is the long record — since Furman* versus Georgia in 1972 — of Supreme Court decisions that require a high degree of propriety, particularly in capital [death penalty] cases of fully funding the defense of the accused, allowing for full discovery, doing everything you can to create a highly functional fact-finding system.  Summarized Nevin: “And what we have here [in this Military Commission], when you add it all together… is not that.  If all of this stuff has to be kept secret, then so be it.  But you cannot go forward with a capital prosecution in that kind of an environment.”

The “environment” comes up again, Nevin notes, in AE566 (Mr. al baluchi’s motion to meet with his defense team).  Court observers heard the Defense argue that the Government was increasingly limiting Defense counsel team access to the accused, citing a lack of adequate appropriate meeting space.  Said Nevin: “You heard the prosecutor, Mr. [Bob] Swann, say that the reason that we have to restrict some of these meetings is that we don’t have enough people to take care of these meetings, that we only have so many meeting rooms/spaces that we can meet in, when in fact he’s wrong.  So, look, it’s a manning problem or a “personing” problem.”  (Mr. Nevin’s co-counsel, ** noted that there are approximately 1700 JTF personnel assigned to handle 40 detainees and asked why, with this kind of prison staff-to-detainee ratio, defense counsel can’t get meetings when need to have meetings.”)

Seeking to extrapolate from an example (AE566) to a broader point, Nevin recounts Mr. Swann’s assertion that resource constraints associated with the GTMO containment means that “Something’s got to give.” Nevin relates how struck he was by that notion: “Something doesn’t have to give if you want to a full-on capital prosecution of the most complicated criminal investigation in the history of the United States in a far-away place, Guantanamo Bay, Cuba. You are going to have to fund and resource that project, and, if you don’t, what gives is justice.  The thing that has to give, the thing that ends up giving, is justice.”

(Also in this context was Mr. Nevin’s reference to notification that he has been given — “just this week” — that there is going to be a 25% cutback in funding for the Office of Military Commissions.  Said Nevin: “This is going to lead to constriction of an already taxed system.”)