Defense Systems Journal visited GTMO at the invitation of the Department of Defense (DoD) during the week of 3-10 November 2018 to witness the pre-trial proceedings of the Office of Military Commissions.  In this context we had the opportunity to attend court hearings and to meet with both defense counsel and victims’ families.  This article is a result of our interactions with, and interviews of these participants. 

For most Americans, the task of defending the accused conspirators of 9/11 would be an impossible task.

But for attoneys David Nevin and Jay Connell, they feel it’s their duty.

Nevin’s client Khalid Sheikh Mohammed is the self-proclaimed “mastermind” behind the 9/11 attacks, which left 2,977 dead. Connell represents Ammar al Baluchi who is accused of supporting the hijackers with $120,000 for flight training and facilitating entry into the United States.*

“I thought it was important work,” Nevin said. “The more at stake in the case the more important that people step up to provide defense.”

And there certainly is a lot at stake. The 9/11 case is the largest ever in U.S. history, maybe even in the world, and is probably still years away from ever even reaching trial.

“There’s an extremely difficult job that has to be done, and that very few people in the world are qualified to do it,” Connell said. “And I’m one of those people. And so I see this as something that I can contribute to democracy.”

From the gallery within GTMO’s 9/11 courtroom, it’s clear Nevin and Connell have a strong relationship with their clients—talking with them during oral arguments, asking for breaks in the sessions for prayer time, and even at one point over the past week, taking group photos and joking around.

“You can’t defend someone if you don’t have a relationship with them,” Nevin said, who said he has a “cordial, respectful, thoughtful, good working relationship” with his client, Khalid Sheikh Mohammed.

But it’s not the same for all five defendants. The proceedings this past week kicked off with Walid bin-Attash continuing his extended objection to his lawyers. His head counsel, Cheryl Bormann, and the rest of the team, aside from one interpreter, sit at a different table from bin Attash.

For Connell, it took a long time to develop a relationship with al Balushi.

“He wouldn’t talk to me at all. He wouldn’t come out. And then it continued that way – we would come down one week out of every month and knock on the door and he would say ‘No’ and we go away again.” Connell said. “And that it occurred that way through the arraignment in 2012, and all the way through 2012, and all the way until summer 2013.”

It wasn’t until a motion was granted allowing defense lawyers to visit their clients in the super-secret Camp 7, where the so-called “High-Value Detainee” prisoners are held in GTMO, that al Balushi even talked with Connell.

“They let us go into [al Balushi’s] cell there with him and all the other men on the on the tier gave up their dinners, because we had hadn’t eaten and handed to the guards and the guards passed it all through,” Connell said. “And he kind of spread it out there on the floor, and told us, ‘This is pretty good, this is terrible. Don’t eat that.’ … And then we had the most secret picnic of all time there on the floor of a cell in camp seven.”

“I think it was really … having this sort of organic human experience of hosting another human being. And that was what for the connection,” Connell continued. “And ever since then we’ve had up a very strong attorney-client relationship.”

But observing the proceeding from the court gallery behind triple-paned windows and on a 40-second audio delay from the top-secret clearance court, it can be hard for victim’s family members to watch defense lawyers, including Nevin and Connell, fighting for family visits for their clients who are accused of taking thousands of people away from their loved ones.

Hans Gerhardt, who lost his son Ralph who worked on the 105th floor of the World Trade Center, said there was a “strong reaction” from the family members present. 

“I have little sympathy that it’s a little harder for [the defendants]” Gerhardt said. “It’s impossible for us.”

At the same time, victims understand why Nevin and Connell do it. “They’re just doing their duty,” said Stephan Gerhardt, Hans’ son.

They also understand why a real trial is important.  “I want to make sure these are legit trials,” said Gordon Felt, whose older brother Edward was on United Airlines flight 93 that crashed in Shanksville, Pennsylvania. “I want a sound conviction that no one can question.”

Connell and Nevin were some of the few death penalty qualified lawyers in the country when the 9/11 case was opened in 2008. Nevin was an attorney in the case against Sami Omar Al-Hussayen who was acquitted of material support to terrorism for running websites as a webmaster that were linked to organizations that support terrorism. He was pulled into the 9/11 case by the American Civil Liberties Union’s (ACLU) John Adams project. Connell had been a capital case defender in Virginia and joined the case full-time in 2011.

And it’s never really been easy for them. 

“I spend about two weeks a month away from my family,” Connell said. “And that’s been very hard on them, as well as me.”

But they do it because it’s “valuable to defend,” Nevin said.

“I can’t build houses, you know, I can’t give people clean water. I can’t do anything, think of the many, many things in the world that need to be done. But this one thing that I can do,” Connell said. “So I feel like I’ve obligation to do it.”

*Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarek Bin ‘Attash, Ali Abdul Aziz Ali, Ramzi Bin al Shibh, and Mustafa Ahmed Adam al Hawsawi are charged jointly, in connection with their alleged roles in the September 11, 2001, attacks against the United States. They are charged with committing the following offenses: conspiracy; attacking civilians; intentionally causing serious bodily injury; murder in violation of the law of war; hijacking or hazarding a vessel or aircraft; and terrorism