Thread by @carolrosenberg

Here at Gitmo's Camp Justice, the judge, Air Force Col. W. Shane Cohen, has opened today's 9/11 pretrial hearing. He notes that two of the five defendants are in court -- Khalid Shaikh Mohammed and his nephew Ammar al Baluchi.

As the judge takes attendance, chief prosecutor Brig. Gen. Mark Martins makes an announcement on this 18th anniversary of the 9/11 attacks: Relatives of 911 victims at Gitmo will be coming and going from the gallery behind the court, quietly, for private commemoration ceremonies.

The judge replies that whatever happens outside the court today has no 'bearing on any matter that will take place today.' He calls it 'inappropriate for me to take it in any further consideration.'

Now the judge is talking about his guiding principles. He mentions integrity," a fair-trial standard, the facts and the law. He says he understands the weight of his responsibility, and that at time it means he will "sit in judgement ... of my country."

Judge Cohen is relatively new to the case.
Here's an article about him, from the first time he held a 9/11 hearing at Guantanamo.
nytimes.com/2019/06/20/us/…

Now Judge Cohen talks about the timetable he set toward the start of selection of a military jury on Jan. 11, 2021. He calls the dates he set 'consistent with the interests of justice, the needs of the parties, and the obligations I have to move these matters forward.'

He says such an order should have been written a long time ago but it 'does not preclude me from setting an earlier date.'
This article explains the order, and includes a copy.
nytimes.com/2019/08/30/us/…

Now Judge Cohen announces that he has independently set aside the first judge's suppression of the so-called clean-team statements (accounts by FBI agents of the 9/11 defendants' interrogations at Guantanamo in 2007) independently of the second judge.

Starting Monday, prosecutors are calling witnesses to describe and defend the admissibility of those statements. From scratch, independent of what the original judge, Army Col. James Pohl, did -- and then what the interim judge, Marine Col. Keith Parrella decided.

I'm not going to try to explain the complicated questions surrounding those statements in a tweet. Here is an article that explains it in some detail: nytimes.com/2019/07/29/us/…

Now, ahead of those hearings, defense lawyer James Connell is making a presentation to the judge in his continuing argument that the clean teams weren't clean because the FBI had a role in the Black Site interrogations. He's showing redacted CIA cables, interrogation discussions.

This is a discovery motion. Connell is explaining his team needs more cables or documents dating back to 2002 about the internal Bush administration (CIA/DOJ/FBI et al) lawyering and discussions of the waterboard interrogations of Abu Zubaydah.

Connell argues these are a blueprint for later Black Site behavior. Connell's client, Ammar al Baluchi, was held in the Black Sites from 2003 to 2006. He's argued his client has a traumatic brain injury, some of what happened to him is portrayed in the movie Zero Dark Thirty.

Connell is reviewing some information he's already gleaned from government documents about FBI-CIA collaboration in the Black Sites, formally known as the Rendition, Detention and Interrogation Program.
"We now know that the FBI detailed special agents to the RDI program."

Context: This contradicts versions out there that the FBI was interrogating through rapport in the Black Sites, then withdrew once the inadmissible enhanced interrogations ensued, re-engaged at Guantanamo with clean teams.

Judge Cohen asks why he needs documents dating to the interrogations of Abu Zubaydah, who isn't charged here. Defender Connell says they should confirm the FBI's 'guilty knowledge,' that they were in on the discussions, knew what the CIA would do to to its black site prisoners.

Connell says the documents he seeks should dispute any FBI argument that 'We didn’t know that they were talking about drowning people either on a waterboard or on a tarp. We didn’t know that they were tying up people and hanging them from the ceiling.'

Judge and defender are talking derivative evidence. Connell asserts that there was "a waterfall effect" from "a more or less unbroken chain of torture" that started with Abu Zubaydah to serially capture the 9/11 defendants and evidence based on their Black Site interrogations.

Connell is now talking about the CIA's Sept. 4-5, 2006 delivery of the 14 Black Site prisoners to Gitmo. He wants documents to illustrate inter-agency discussions to create "a deliberate U.S. government policy" to deny the defendants lawyers before the 2007 FBI interrogations.

Connell is showing the judge, and court, a chart called “FBI ‘Requirements’ Sent to CIA." He says it shows that the FBI was sending lists of questions to the Black Sites from September 2002 to September 2006 for CIA agents to ask the five defendants in their interrogations.

“This is the time of the investigation,” Connell says, “the FBI was anxious to know things .. shape its investigation.” He says the prosecution won’t turn over the lists of questions contained in those 77 documents, and wants the judge to order release of them.

Judge Cohen asks why the defense needs them.
Connell: Relevance, derivative evidence. Whether you want to call it torture or coerced, Connell tells Cohen, it will be the judge's role to exclude information from the black sites as inadmissible. These documents will assist him.

We are in the mid-morning recess for court participants and observers to dash to the toilet trailers. At the Guantanamo war court they call it a "comfort break."

SITREP from the media filing center: The toilet trailer for media plus military and civilian war court chaperones no longer has water for flushing. Or, as we'll call it until it's replenished, the toilet trailer is an expeditionary war court outhouse.

Court is back in session with civilian lawyer Rita Radostitz arguing the discovery motion. She represents Khalid Shaikh Mohammed, who has come to court this 9/11.

She’s invoking the Younis standard for defense discovery. She picks up the theme of the torture of Abu Zubaydah, argues the US government has backed away from him having a role in Al Qaeda and that implicates reliability.

Plus, she says, defense lawyers need the material for mitigation, if the U.S. military jury convicts her client. 'All we have to do is persuade one juror to vote for life.' And details from the government Black Site program could be persuasive.

ACLU staff lawyer Denny LeBoeuf makes her first argument as KSM’s lawyer. She invokes the Constitution and says the documents detailing the questions the FBI sent to the CIA to pose in the Black Sites is not “unavailable or destroyed evidence. That evidence is in this courtroom.”

At that time, she said, the FBI agents were not “standing outside the dungeon door. They don’t hear the thuds or the cries or clean it up. They are in effect sending in questions.”

But, she argues, Connell’s timetable overlaps with the period when KSM was in a Black Site and sleep deprived for seven days while being interrogated “naked, hooded, beaten” and subjected to mock executions 183 times.”

In response to a question from the judge, LeBoeuf says defense lawyers need to know what questions were sent in and when to correlate it to the waterboarding and other techniques and then see if they were the same questions the FBI asked KSM at Guantanamo in 2007.

Now the government responds. Civilian prosecutor Ed Ryan of the Department of Justice invokes today’s “sad anniversary,” and says the FBI agents who interrogated the 9/11 defendants at Guantanamo in 2007 were chosen as “the most knowledgeable about” the Sept. 11, 2001 attacks.

The prosecutor disputes the defense's "one-long interrogation" argument that seeks to exclude the 2007 FBI interrogations, and reminds the judge that the standard for admissibility is, Were the defendants questioned voluntarily at Guantanamo?

He says the testimony the prosecution will present at this hearing and in the future will support voluntariness. “Our position is that the evidence will show that the accused were not just acting voluntarily,” says prosecutor Ryan, but that they were proud.

Prosecutor Ryan: “When Khalid Shaikh Mohammed was eye to eye with Frank Pellegrino, an agent who chased him for years, it was Mr. Mohammed’s great joy to explain his involvement in these attacks."

Aside: FBI Special Agent Pellegrino is not testifying at this round of hearings.

When the FBI interrogated at Guantanamo in 2007, Ryan says, the defendants wanted to send the message that "the worst day in this nation’s life," Sept. 11, 2001, was a "crowning achievement."

He adds the defendants 'were not helpless when they happily confessed to the FBI.'

Ryan defends the integrity of the so-called clean team interrogations: "No evidence the prosecution will present in the course of this case was derived from the time or the events that occurred while these accused were in the custody of the Central Intelligence Agency."

Prosecutor Ryan also rejects the defense lawyers' requests for information about the interrogations of Abu Zubaydah and Majid Khan, who aren't charged in this case. He says those two men are “completely immaterial to this case and these issues.”

Judge Cohen declares, not for the first time: “Derivative evidence is going to be a significant issue in this case.”
He asks if the prosecution contemplated that issue and what was their methodology in deciding what discovery the defense lawyers would get.

Prosecutor Ryan: A variety. In the case of Ammar al Baluchi, Connell's client, evidence against him comes from the FBI investigation soon after 9/11 but before his April 2003 capture. He says FBI Agent James Fitzgerald, a clean-team interrogator, will explain next week.

The court is in a lunch recess to 1:30.

The 9/11 pretrial hearing is back in session this 9/11. Judge Cohen says they'll tackle two motions this afternoon:
--On the standard for prosecutors submitting evidence without a foundation.
--On the defense bid to disqualify the war court overseer, RDML Christian Reismeier.

Now arguing: William Montross, civilian defense attorney for defendant Walid bin Attash, an accused 9/11 plotter who is voluntarily absent from today's hearing. Defense lawyers want witnesses, docs to underpin their request that the judge disqualify Convening Authority Reismeier.

Montross: The current convening authority is "no stranger to the prosecution." Before he got the job, he offered advice and expertise to the chief prosecutor, Brig. Gen. Mark Martins. In one instance, Reismeier signed an amicus brief declaring conspiracy a war crime.

Based on that, Reismeier recused himself from two other Gitmo war crimes cases.
--the USS Cole capital case, because he did a moot court with prosecutors
--the Bahlul conviction, in which he sided with prosecutors on conspiracy.
He remains on this 9/11 and the Hadi cases.

Montross is arguing that Reismeier has judicial and quasi judicial roles in his capacity as Convening Authority. He argues this is different than a court martial Convening Authority where good order and discipline of the military can be a factor.

Montross is now discussing the USS Cole case judge, and an episode that led a federal appeals court to set back that capital case to 2015. In that episode the prosecution refused to look for information about that Air Force judge's secret pursuit of an immigration judge job.

He notes that a FOIA I filed with the DOJ shook loose the job search record, which was denied in discovery. A point of information: I filed for those records from the @MiamiHerald, my previous job as the Guantanamo reporter. miamiherald.com/news/nation-wo…

@MiamiHerald The Herald does lots of important FOIA work.
I had, however, switched jobs by the time of the denouement, and reported the decision by the U.S. Court of Appeals for the D.C. Circuit here. nytimes.com/2019/04/16/us/…

@MiamiHerald Now KSM's attorney Rita Radostitz is arguing that "It matters a lot that the Convening Authority is somebody who can be impartial." Defense lawyers want the judge to order Reismeier's testimony. She reminds that he picks the military jury pool, validates facts and the law.

@MiamiHerald Civilian 9/11 case prosecutor Clay Trivett is defending Mr. Reismeier's role, quotes him as saying, "It is what it is," and recites the various roles he undertook in collaboration with the prosecution and military commissions before he got the CA job.

Trivett calls a Convening Authority unique to military justice. Convening Authorities are not judges, he says.
He argues there's no need for additional discovery, that Judge Cohen can read Mr. Reismeier's own disclosures and testimony in another case, and decide the challenge.

Prosecutor Trivett says, on the question of the Convening Authority reviewing any conviction, it's unknowable if Mr. Reismeier will be in that role when this case end.
True, he says, the Convening Authority decides resources. But the defense can appeal refusals to Judge Cohen.

In the past, Trivett prosecuted at Guantanamo as a Navy officer. Today he's a reservist and prosecuting as a civilian, in a suit and tie. He disputes the defense claim that these tribunals are not for 'good order and discipline,' like court-martial cases.

He says these military commissions are indeed instruments of good order and discipline by...
-Vindicating the laws of wars;
-Punishing those enemies when their actions flout the law of war;
-Sending a message to anyone who will violate it: You will be punished harshly if you do.

Trivett says Reismeier can testify, and if the judge orders it, he should limit the questioning -- because there's lots else to be done before the start of trial in 2021.
Judge: What about a deposition?
Trivett: You could order a declaration. Judge Pohl did from previous CA.

Trivett adds that, by the way, CA Reismeier was right before he got the job to side with prosecutors in an amicus brief defending conspiracy as a war crime that can be tried at Guantanamo. The DC Circuit upheld it in Bahlul and SCOTUS denied cert. So it is "the law of the land."

Montross takes exception to this. He says conspiracy can still be challenged in Bahlul or another case. He also rejects the idea of interrogatories or a declaration by Reismeier. He wants the ability to follow up.

The war court is in an afternoon comfort break. The judge expects to go to around 5 p.m. today and then resume in open session tomorrow from 9 to 11 tomorrow morning if there's more unclassified business.

Here are some takeaways from today’s 9/11 session:
--Some 9/11 victim families were watching at the back of the court, drew a blue privacy curtain around them. Someone sitting nearby heard sniffles, tissues being passed behind the curtain on what was clearly an emotional day.

--Only two of the defendants, accused mastermind KSM and his nephew Ammar al Baluchi, came to court. They wore traditional white garb topped by vests and caps, nothing political or military and sat quietly, at times talking to their lawyers. The other 3 voluntarily waived court.

--Voluntariness was a big topic today. A prosecutor said that the accused defendants were proud, volunteered their role in the 9/11 attacks at Guantanamo in 2007 after three and four years in CIA custody. The prosecutor said testimony next week should demonstrate this.

--Defense lawyers asked the military judge to order the U.S. government to hand over lists of questions that the FBI sent the CIA agents in the black sites. They say they could show those 2007 FBI confessions were tainted by the Bureau’s role as a partner in the CIA Black Sites.

--The chief prosecutor started the day by describing how some 9/11 families would be coming and going from court to commemorate the attacks.
--The judge then said he understands the weight of his role, and knows that at times he may have to "sit in judgement ... of my country."

Here at the 9/11 hearing, the judge is back on the bench and says he'll go to 450 this afternoon, in time to break for the afternoon Muslim prayer time. He'll resume tomorrow morning in open session, then move to a closed, national security hearing.

Now arguing: Brig. Gen. Mark Martins, the chief prosecutor, on why the government can use "substituted evidentiary foundations." He calls it a key provision of the Military Commissions Act for having trials in the context of hostilities without harming national security.

The judge ordered the prosecution to brief on this.

BG Martins has a slide that says "Bottom Line Up Front." He says unilateral "ex-parte" contacts between prosecution and judge (cutting out defense lawyers on classified information) are a mandatory not optional endeavor.

The general says the procedure of the U.S. government deciding that defense lawyers (who have top secret security clearances too) can't know something is a staple of modern national security trials and a judicial tool when dealing with classified information.

BG Martins: "Only persons having a need to know -- that's a technical term -- can be granted access to specific classified information." He says the law gives the Executive Branch the authority to protect information from our adversaries, even material that appears innocuous.

BG Martins has just concluded a 50-slide tutorial on the law and intent of the rule and requirement.

Judge Cohen is struggling to frame a question about this because he doesn't have the authority to declassify or disclose. He tries to find an example, then flat out asks how he can protect the defense side's interests.

Prosecutor Brig. Gen. Martins: Defense lawyers can "enlighten you," ex-parte, on their general theories. In that regard the judge can serve as standby counsel and decide if a prosecution substitution is "reliable evidence," essentially good enough.

Judge Cohen has a really interesting hypothetical: What if he approves a prosecution substitution and then later, say during trial, realizes it is inadequate? Defense can't ask for reconsideration. Can the judge?
Brig. Gen. Martins: A judge can do reconsideration sua sponte.

With that, the judge recesses for the day to resume at 9 a.m. tomorrow.
This gives the Muslims in court time for the afternoon prayer. And for others, who've already registered, time to dash to Gitmo's downtown Lyceum for the 9.11K memorial run. (Note: Lyceum not Cooper Field.)