Thread by @carolrosenberg

Good morning from Guantánamo Bay. Pretrial hearings resume today in the 9/11 case with prosecutors, defense lawyers invited to raise concerns about any issues they may have with the background of the new judge. nytimes.com/2021/08/20/us/…

The 9/11 pretrial hearing is now in session. None of the 5 defendants have come to court, which is not unusual. It's Friday and the detainees typically waive attendance in favor of morning holy day prayers. #Juma

Also, there's this...
I'm hearing that the detainees have been preoccupied with this health crisis over at Camp 5 prison.
nytimes.com/2021/09/10/us/…

In court now, a Navy commander serving as a prison lawyer says all five detainees waived attendance voluntarily.
On a question by the lawyer for defendant Ammar al Baluchi, the lawyer says Mr. Baluchi reported he was tired from caring for Mr. Hadi at the prison.

Mr. Baluchi's lawyer James Connell says the care involves getting the paralyzed prisoner to the toilet.

The prison lawyer, who is appearing anonymously, testifies that accounts of Mr. Hadi's paralysis are "inaccurate. He doesn't have a worsened medical condition."

Prosecutor Bob Swann is unhappy with this line of questioning, objects. He calls the question "little more than a propaganda attempt to tell the world that Mr. Hadi suffered some kind of medical condition that is being adequately taken care of."

Why are we hearing this? Mr. Connell is probing whether Mr. Baluchi truly voluntarily waived attendance or was too tired to come to court because of events at the prison.

Prosecutor Swann says that if Mr. Connell is suggesting Mr. Baluchi is not voluntarily waiving his presence, he should be forcibly brought to court.

Col. Matthew McCall, the military judge, points out that is the court decides whether to order it, not the prosecution.

Mr. Connell replies that if the choice is an assertion of voluntariness or a Gitmo Forced Cell Extraction*, he'll say Mr. Baluchi's absence is voluntary.

* FCE=tackle-and-shackle, rough takedown and transfer.

So now, for the record, all five 9/11 case defendants have voluntarily waived this morning's hearing.
Soon, hopefully, we will get to hear whether any of the lawyers, defense or prosecution, object to Col. McCall's serving as the military judge -- and why...

First, Judge McCall says he has studied the names of the victims of the 9/11 attacks (2,976 people killed, according to the government charges) per the prosecution request, doesn't know them.

So on the question of challenging the judge...
The prosecution, which once opposed his choice, now says they don't challenge Mr. McCall's ability to serve in the case.

That was quick.
But now KSM's attorney Gary Sowards raises an objection, invoking the period last year when Col. McCall hadn't served long enough to sit in the case, and was sidelined by the chief judge.
Background: nytimes.com/2020/10/16/us/…

Mr. Sowards says in effect that the switcheroo, and decisions made behind the scenes that took him off and then put him back the case, could create an impression of partiality. And the judge should recuse himself.

Bin Attash attorney Cheryl Bormann objects to Col. McCall sitting because he's not yet read the court record, rulings in the case, has no capital judging experience, hasn't taken a course yet.
(He was formally assigned Aug 20, says his judiciary team is helping him catch up.)

The 9/11 case has 33,436 pages of transcripts. "In this case, at this point, you are not there," says Ms. Bormann. She says he needs to also catch up on all the "relevant case law."

"While I am also impressed with your judicial demeanor," says Ms. Bormann, she says she's troubled by his willingness to start hearing arguments and rule on matters before he's ready.

Bin al Shibh attorney David Bruck said he adopts, has nothing to add to co-counsel objections.

Baluchi lawyer James Connell doesn't object, says his team is good to go with Judge McCall.

The legal team of Mr. Hawsawi offers no position because his lead capital defender has been excused from court.

Now Judge McCall will consider the objections.
Orders a 20-minute recess.

The court is back in session. No ruling.
The judge dove straight into hearing arguments from KSM's lawyer, Navy Lt. Peter Berg. It's a motion for more details of what was done to the accused mastermind in the CIA black sites in relation to his 803 interrogations.

Lieutenant Berg says the material provided to his defense team -- summaries of actual CIA evidence that are prepared by prosecutors -- were "threadbare," some approved by the military judge, others perhaps not.

The defense lawyer says the "secretive ex-parte nature" of the preparation of evidence, essentially a huddle between prosecutors and the judge, doesn't let defense lawyers know which information was approved by the judge, which was not.

The defense lawyers on the teams are seeking interrogation by interrogation breakdowns of what happened in the black sites.

Prosecutor Clay Trivett reminds the judge that there has been nine years of litigation on this case before he got there, and since the 10-minute rule they sought is lifted, he's going to offer him a one-stop-shop discovery overview.

Mr. Trivett's tutorial starts with him reminding the judge of the charges in the case, noting it is a conspiracy case and reminding him that there are arguments in the records on why they should all be tried together.

He recites the charges, 7 of 8 capital -- attacking civilians; intentionally causing serious bodily injury; murder in violation of the law of war; hijacking or hazarding a vessel or aircraft; terrorism and conspiracy.

He is explaining nine years of history, where the case intersects with Guantanamo's other capital case, for the USS Cole attack.

Sounds like he said lawyers have handed over 601K pages of information, discovery they call it, through July 31 in "rolling productions."
He is describing the "10-category construct" the prosecution put together for discovery in the Cole case for the first judge, Col. Pohl.

Mr. Trivett says the evidence includes photographs of the 9/11 attacks, one of the most photographed attacks ever, and statements the detainees made "in camp."
For the trial, he says, prosecutors won't admit what they told the CIA in 2002-06 confinement.

"We do have to prove beyond a reasonable doubt Al Qaeda's war against the United States," says Trivett, the history of AQ's war before turning to what the defendants are accused of doing.

Mr. Trivett says the prosecution has provided stipulations -- as in descriptions of what happened to the detainees in C.I.A. custody -- which the defense can adopt in place of any future discovery obligations in the black site program.

Trivett is reviewing where Judge Cohen left off, and defense lawyer Cheryl Bormann objects to the details, saying they are in dispute.

Trivett is explaining the prosecution's bucket theory of discovery for the defense -- substantive versus non-rec, and says there was a mistake found through quality control checks. And they're in the 505 process now.

Prosecutor Trivett disputes that KSM was shown photos in more than 800 interrogations. Or alternatively that KSM recognized photos in 800 interrogations.

He says the prosecution doesn't always seek judicial approval to redact, when there's a common convention. But if the prosecutors are changing original evidence -- not simply redacting it -- they go to the judge and his team for permissions using the 505 scheme.

LT Berg rebuts: At every stage of this case we have been fighting tooth and nail to find out what happened to our clients in this program.
He says prosecutors say they won't use CIA interrogations at trial, but wont disavow use material "obtained under torture" at sentencing.

Berg adds that the defense position is that even redactions of original evidence by the prosecution need to be approved by the judge.
Prosecutor Trivett parries: Prosecutors commit to not using evidence from the CIA black sites at sentencing.

Now Cheryl Bormann for Walid bin Attash is describing the "discovery dumps" and summary process as inadequate for defense purposes. She posits that there is evidence that "Mr. Bin Attash didn't know about 9/11 until 9/11," but they didn't receive it.

Ms. Bormann tells the judge that, as a defense lawyer, she could not sign on to a government stipulation (description) of what went in the black sites as an end run around discovery.

Judge McCall says he gets it, LT Berg made clear that they don't know what they don't know.

Since this seems to be a prep course for the new judge,
Bormann tries to preempt a prosecution argument...

Prosecutors will argue, she says, that defense lawyers on the case can find out what happened to the defendants in CIA custody, by simply asking them.

First she says, the argument "fundamentally misunderstands the burden on the government," that prosecutors must provide discovery on what happened to her client, Mr. bin Attash.

Secondly, "When you're hanging from the ceiling and lose consciousness for days on end, you don't have the ability to recall what happened to you."
She said the program systematically disoriented the detainees, didn't even let them have clocks.

Baluchi attorney James Connell wraps up the defense criticisms of the government discovery process with a plea to the judge to review all the redactions. The judge is entrusted with the defense theories for the substitutions and, otherwise, "you don't know what you don't know."

Judge McCall, who never did rule on the motions to exclude himself, has recessed for lunch. Court resumes this afternoon in a closed ex-parte session between the judge and Team bin al-Shibh.