Thread by @carolrosenberg

Good morning from Guantanamo Bay. Here at Camp Justice, the 9/11 trial lawyers return to court at 9 a.m. to hear what the judge is going to do about the capital defense lawyer whose "trial days are over" -- and the Yemeni man he represents, shown here.
nytimes.com/2020/02/18/us/…

Air Force Col. W. Shane Cohen, the judge, may also have something to say about the different vans the Army guards use to shuttle the 9/11 defendants between their prison and the war court. They have been described as similar to U.S. county jail vans, white with a cell inside.

Defense lawyers said the prisoners complained yesterday that one model is cramped and, sounds like, retraumatizing. As described, a detainee is transported in the windowless van in short shackles and hunched over, whacks his head when jostled around Gitmo's rutted roads.

It's used, it seems, when a more spacious model breaks down in the prison zone of 40 detainees and 1,800 troops. But yesterday, they used both over detainee protests. So prosecutor Bob Swann arranged for the judge and lawyers to compare the large and small models after lunchtime.

More about the van complaint and, defense lawyers say, threats to forcibly extract prisoners who want to note the problem on their attendance waiver...
Yesterday's hearing transcript: mc.mil/Portals/0/pdfs…

For those seeking to catch up, our 9/11 Trial Guide:
nytimes.com/2020/02/03/us/…

The 9/11 hearing is in session. KSM is in court, Ramzi bin al-Shibh is in a holding cell out back and the other three detainees are absent, signed waivers at Camp 7 prison this morning.

In court now, the judge is summarizing a way-ahead chambers conference from yesterday, out loud, for the record.
--KSM lawyer Gary Sowards, the judge says, raised concerns about surreptitious surveillance of defense teams in the courtroom. The judge said that's not happening.

--On the same topic, the judge says, Baluchi lawyer James Connell expressed concerned about something going on in the courtroom that might be in violation of a court protective order. The judge says he'll be releasing some discovery on the topic soon.

--The judge said he is able to rule on some motions as written, but would entertain oral arguments on some of them this week, optional.
--Mr. Sowards, the judge said, is seeking oral argument on a KSM motion involving "the death sentence." Sounds like AE754.

--On a question from the chief prosecutor, Brig. Gen. Mark Martins, the judge said he is postponing testimony of the Convening Authority Reismeier in a defense recusal motion, possibly to May/June session.

In court now, Mr. Connell is expanding on a chambers conference topic, points at the prosecution tables and says his concern is about a "device" in the courtroom, "that silver one right there."

(It is a laptop or tablet looking thing that a prosecutor has been using in court.)

Connell: It appears to me that the government has had some kind of ex parte contact with the court and the court has authorized the installation of a CIA device in the courtroom to allow the CIA to assist in their prosecution. He calls it at odds with "democratic values."

Judge Cohen is upset at that characterization.
He says it is "public record that the OCA* is monitoring" the Sept. 11 trial and that "spills cannot occur. The goal is zero spills."

*Original Classification Authority, often shorthand for the C.I.A.

Judge Cohens adds that "the OCAs have always had real time monitoring," specifically cites the CIA, FBI and the entity that reviews material for the prison.

He describes the device as a method to alert him, the judge, to order the security officer to hit the audio kill switch.

"I’m the only one who can tell this man to my right to cut a feed," the judge says, his voice rising. But the standard, he says, is no spills and immediate action to stop it.

The judge likens the communications device the prosecution is using to having a dozen people seated at the back of the court who can stand up and signal to halt the proceeding. "There cannot be any spills."

Judge Cohen has gone on for some time. "There is no spying going on in this courtroom," he says. "There is nothing nefarious" about having the OCAs in the courtroom. The law requires "zero spills."

Mr. Connell notes that in January, at one point, the prosecution signaled to the judge to hit the audio kill switch -- and then didn't have a basis for their objection.
He describes a history of distrust of the government, mentions secret destruction of a black site.

Judge Cohen says he's delegated to the prosecution spill alert authority so he could focus on objections.

He tells Mr. Connell that he would dismiss the charges if he were presented with "absolute evidence that the government was listening in on the defense in this trial."

Mr. Connell asks why the defense wasn't looped in on the prosecution seeking the judge's approval to put the device in the courtroom.
Judge Cohen: "Because of an ex parte filing I issued an ex parte order." He now says, he regrets it.

Judge Cohen says he is going to convert that ex parte ruling to something the defense can see. He says his discovery will be "a memorandum" about the back story of the device.
Unclear about whether it will be made public.

Mr. Sowards for KSM is telling the judge that he still believes the defense are being subjected to illegal monitoring of attorney-client conversations.
Judge Cohen: There is no monitoring. The record is clear. You have no evidence of it.

Sowards on another topic: Zero spills is a fool's errand.
He asks, not for the first time, that defense get the classification guidance that the judge and the prosecution see and use to invoke the audio kill switch as spill protection.

He says the information that is blocked as a potential spill is information that "the people monitoring this in Langley think is not a good thing for them, or the case, or the public to see."
He says classification is being used to cover up torture.

Mr. Sowards casts Judge Cohen as ordering his security officer to hit the audio kill switch on a signal from the CIA via the prosecution.
Cohen says it is his decision alone, adds if he is certain there is not spill he wouldn't have his security officer hit the mute button.

Mr. Sowards: We didn't understand that there was a separate feed to the CIA that would make this light activated.
Judge Cohen: The OCAs. There are multiple OCAs that work on this case.

Mr. Sowards has just rattled off a long list of discovery requests surrounding the court and secrecy, including the full Senate black site report, not just the summary, as well as schematics of the courtroom.
Judge Cohen offered to get him a ladder.

Mr. Sowards declares, not for the first time, that he believes that the attorney-client privilege is being violated in this case, declares it an ethical problem.
Judge Cohen: There is no evidence of that in the record.

Judge Cohen declares, also not for the first time, that if he is presented with "any evidence that someone is listening in on those conversations, and recording them, I will dismiss this case immediately."
Mid-morning recess.

The judge is back. He is talking about the war court system.

He said he does not believe that the military commissions are “a failed experiment, kangaroo court or travesty of justice.” He says there have been problems, caused by humans, "not to say the system is perfect."

The judge is reading, rapidly, discussing the problems of the past and his efforts to "overlay structure on a process that over seven years had none."
He said the case has been consumed by investigations, allegations and breakdown.

Judge Cohen is now talking about Mr. Harrington: He says he has watched the defense lawyer and is convinced that his effort to withdraw is "not a delay tactic or some ploy to throw a wrench" into trial preparation.

Judge Cohen is ruling. He is releasing Mr. Harrington from coming to Guantanamo in the future, and eventually from the case, once his replacement learned counsel has been found and is in place.

Judge Cohen casts Mr. Harrington as "a man who has come to grips that he is not the attorney he once was and will not be again."

Meantime, he is requiring Mr. Harrington to continue to oversee Ramzi bin al-Shibh defense filings as the learned counsel.

Judge Cohen announces that, because of the extended timetable to replace Mr. Harrington, he is cancelling the March pretrial hearings even as "the march toward trial in 2021 can continue."

Judge Cohen says he will spent the next two months issuing "interim findings of fact" from the pretrial hearings to help narrow the scope of future testimony.
Because it's interim, he says, lawyers on either side can challenge a fact that would be the basis of future rulings.

Judge Cohen says he is not severing Mr. bin al-Shibh from the case, now. But reminds everybody that he has that unilateral authority and could do so after seeing how long it will take to get him a new learned counsel.

Judge Cohen: "It is apparent to this judge that Mr. Harrington at age of 75 and counting is no longer the marathon runner that he used to be."

Judge Cohen discloses that he had originally picked June 2021 as the start of trial date but, for now, he is sticking to the filing deadlines he set toward jury selection on Jan. 11, 2021.

Judge Cohen tells Mr. Harrington he can tell his wife that he has "no definite end date" but he doesn't "have to travel down here anymore."
Essentially, the judge is allowing him to guide the team's work from war court offices in Virginia, no longer meet with Mr. bin al-Shibh.

The judge is also requiring regular updates from the defense side on the effort to replace Mr. Harrington, with an initial 45-day deadline, and thrown out there the possibility that, once hired, the person might take "a year to get up to speed."

Judge Cohen has also said that, since defense teams are seeking recusal of Convening Authority Christian Reismeier, it would be wise to have an alternative person involved in reviewing, approving or potentially choosing a successor to Mr. Harrington.

Judge Cohen spoke at length about Mr. Harrington.
He called him "a man who has come to grips that he is not the attorney he once was and will not be again."
He said he "swallowed his pride and for the benefit of both his client, this case and his family requested to withdraw."

The judge said he, Colonel Cohen, has "serious concerns about his ability to represent a death-penalty eligible client" and that he was not willing "to assume the risk" of ordering him to "get on the plane and come down to Guantanamo."

In court now, defense lawyer Sean Gleason is asking the judge to order release of the identities of some early Camp 7 guards as potential witnesses in an effort to exclude Mustafa al Hawsawi's 2007 "clean team" interrogations by the FBI.
Background: nytimes.com/2019/07/29/us/…

Mr. Gleason says the guards can speak to whether Mr. Hawsawi was subjected to SOP driven sleep deprivation in his first months at Guantanamo, before the interrogations; was competent in English, as the FBI claimed; was in pain during those early months.

Mr. Gleason reminds the judge that, the record shows that, Mr. Hawsawi had "a major surgery" before his transfer to Guantanamo in 2006 and suffered considerable pain afterward. He also discloses the first Camp 7 senior medical officer is deceased.

Update: This March 16-April 3, 2020 pretrial hearing in Guantanamo's 9/11 case is cancelled.
defense.gov/Newsroom/Advis… @shephardm @terrymcdermott @MargotWilliams

@shephardm @terrymcdermott @MargotWilliams Now arguing: Ramzi bin al-Shibh attorney Wyatt Feeler for access to the Camp 7 guard force, circa September 2006 to early 2007. The guards, he said, can offer insight into an "incredibly tumultuous week" before Mr. bin al-Shibh's 2007 FBI interrogations.

Just like in the black sites, Mr. Feeler said, Mr. bin al-Shibh was forcibly shaved in the week ahead of his interrogations. Just like in the black sites, he said, Mr. bin al-Shibh was put on a "restrictive diet." He was also force-cell-extracted.

Context: The defense attorneys are arguing that what the detainees told the FBI was not voluntary because, after conditioning in the black sites, they did not believe that had the option of remaining silent -- or telling a story different than the one that the CIA got from them.

Baluchi attorney James Connell wants access to those guards' names too. For one, he says, the guards may be able to explain his client's description of somebody broadcasting screaming into Camp 7 ahead of the FBI interrogations.

He says he also wants the guards for mitigation purposes, meaning if Mr. Baluchi is convicted the guards can discuss his cooperative behavior in detention in an effort to argue against execution.

Prosecutor Edward Ryan has 10 minutes. He says his colleague Clayton Trivett will address the guard discovery request later.

On the clean team interviews: "We are unaware of any recordings. We have stated this on many occasions. We have looked for and can find no logbooks."

They also cannot find any notes taken during the clean team interviews, believe it was prohibited.

As for all CIA detention records, prosecutor Ryan says, the prosecution "considers its discovery obligations to be complete."

We are in a lunch recess until 1315, and there is a steady stream of traffic from Camp Justice to Gold Hill galley, the sailors dining room, this Wing Wednesday.

A few of other items from Judge Cohen's multi-pronged oral ruling to semi-release learned counsel James Harrington from the 9/11 case.
-- Because he found Mr. Harrington unable to continue, the judge did not consider a claim of an "irreparable schism" between lawyer and client.

--Judge Cohen considers the case "on the best footing and has the best opportunity to go to trial" than at any time in the past.
--Justice can be done in an expeditionary setting. He once presided over a trial in a case in a maintenance facility on an Air Force base in Idaho.

--Capital cases take time. The rule of law and "Lady Justice" require more time than "the heat of the battle" to decide whether to take a life.

Judge Cohen is explaining the way ahead: More motions to compel arguments today until 3:30 p.m., prisoner prayer break then transition to a closed 505H session. Court reopens at 9 a.m. and will transition to a closed national-security hearing.

In court now, the defense teams are continuing to seek access to the guards and other Camp 7 personnel from September 2006 to early 2007. They want to question them about what life was like in the clandestine prison as part of an effort to suppress the "clean-team" statements.

The judge is wrapping up for the day, to more closed meetings, hearings, conferences. He expects to reopen the court at 9 a.m. tomorrow.

Today's report: On the judge agreeing to let the septuagenarian defense lawyer gradually withdraw from the 9/11 case and the (until today) secret communication link between prosecutors inside the war court and the CIA, other intel agencies outside of it.

nytimes.com/2020/02/19/us/…