Thread by @carolrosenberg

Good morning from the military commissions viewing site at Fort Meade where I will be watching this week's rare open session of the 9/11 proceedings at Camp Justice, Guantanamo Bay.
For now, we see Judge McCall's empty chair.

Court is now in session at Camp Justice. Four of the five defendants are in court. Defense lawyer Suzanne Lachelier says Mustafa al Hawsawi was in too much pain to come to court, awaiting an injection. She is offering a recitation of missed meetings and miscommunication.

She says she does not want to trigger a Forced Cell Extraction, but says she doesn't understand how there are so many disconnects after all these years.

And so, prosecutor Bob Swann calls an anonymous Army lawyer from the prison staff to testify on today's wavier.
He's a lieutenant colonel, different from the Navy fellow who testified last week that another detainee, Mr. Hadi, was just fine.
Background: nytimes.com/2021/09/10/us/…

This assistant staff judge advocate, call him LTC ASJA, says Mr. Hawsawi declared himself in too much pain to come to court, signed a waiver at 0607. He got a shot at approximately 0730.
On a question, LTC ASJA said he didn't see Mr. Hawsawi fall at morning prayer, early today.

Judge McCall calls a recess to mull it over.
He says he doesn't want "to proceed when there's a cloud over" the question of voluntary v. involuntary absence. "One luxury we have this week," he says, is he could pivot to a closed meeting with Team KSM, reopen court after noon.

Court back. Swann says Hawsawi will be asked if he wants to come to court "if he decides to wake up." The judge orders a new waiver form be brought to him, Someone randomly added 0900 to his form after he signed it at 0607.
Ms. Lachelier says it was "doctored." The judge demurs.

Meantime, Judge McCall is reading what may be a ruling into the record. He is recounting the facts of Friday's defense objections to his serving as the capital trial judge -- and the history of his detailing, starting with this.
nytimes.com/2020/10/16/us/…

He's describing his decision to recuse himself in November 2020, then didn't because he learned behind the scenes he would be replaced (and was, administratively by the chief judge) and a parallel prosecution request for him to recuse himself, also in November 2020.

In short, he was on, he was off, he achieved two years of military judging experience -- and was put back on the case again.
KSM's lawyer says the to- and fro- and behind the scenes creates an appearance of not being impartial.
McCall doesn't agree. Motion to recuse denied.

Now, onto Bin Attash lawyer objection that he's unqualified to preside in a capital case -- and should go take the capital class, read and absorb the record and come back...
He disagrees.

McCall finds he meets the statutory and regulatory requirements for presiding in this five-man capital conspiracy case.
Congress, he notes, created the court realizing that a military judge may not be up to speed on the "nuances and difficulties" of this particular 9/11 case.

Judge McCall declares himself aware of the challenges and check with his Air Force rules of professional conduct and other ethical obligations.
He finds that he has the "requisite skill to diligently and competently preside" in the 9/11 case.

He defends his approach by saying he's learning, and has built preparation into his process -- and by offering one-on-one meetings in ex parte sessions with prosecutors and each defense team. He's held at least one.

Here at Fort Meade we are having technical problems following the proceedings. The feed is fritzing on and off. This is not one of those episodes of a classified government spill. Just that we can't see, watch. Court in recess.

I just checked with Guantanamo. While the feed was coming in and out here at Fort Meade the court went into recess to check back in at Camp 5 to see if Mr. Hawsawi is still waiving, would like to come to court.

The court is in session. Army LTC ASJA is back in the witness stand, testifies that he saw Mr. Hawsawi in the interim. The prisoner asked if there was still a closed session starting at 2 p.m. today. Told, yes, he chose not to come to court. There's a new signed waiver.

Judge McCall declares Mr. Hawsawi is absenting himself voluntarily.
One of Mr. Hawsawi's lawyers, Suzanne Lachelier, says her side does not want these delays and there is frequently confusion in the relay of information from the detainee through prison staff to the lawyers.

Ms. Lachelier argues that, now that the high-value (former CIA) prisoners have been moved to Camp 5, war court defense lawyers should be able to speak directly with their clients on whether they are waiving and why.
Photo: Prison handout of image inside Camp 5

Ms. Lachelier: Camp 5 long ago installed a phone for low-value legal calls, has capability. Mr. Hawsawi has significant pain issues, is administered 3 pain meds, one by injection. His "situation does change from one day to the next." It would be best to hear from him directly.

Judge McCall thanks her and says he does intend to look into improving the waiver-communications process between detainee and the court.
About the move to Camp 5...
nytimes.com/2021/04/04/us/…

In court now, KSM lawyer Rita Radostitz is arguing a motion to compel the government to permit the defendant to see all of the evidence against him. She calls it consistent with constitutional, ethical and fair trial obligations.

She reviews history: Rather than take KSM to NYC upon his capture in March 2003*, she says, the U.S. chose to spend "more than 3 years torturing Mr. Mohammed in black sites around the world" then held him 2+ years incommunicado at Gitmo- no lawyer.
(CIA post-capture photo.)

She continues: From the very beginning he said, Take me to New York. Give me a lawyer and I will be happy to talk to you. The government made a choice to take another path.

Ms. Radostitz: Defense don't want "blueprints to the Pentagon or names of covert agents who participated in Mr. Mohammed's torture." They want the ability to talk to our client with the evidence sitting in front of him, take it, digest it, help build the case in his defense.

Judge McCall: Under CIPA, counsel can see certain documents but defendant cannot. The difference in your view is it's a deatrh-penalty case, there should be a heightened level of due process?
Ms. Radostitz: Right. Death is different. Capital is different.

In Gitmo court now: The remote voice of Alka Pradhan is broadcast briefly through the Gitmo courtroom public address system.
She's at the courtroom annex near DC and apologies. "We have a hot mike," she says.

The government created and the court approved the new remote classified courtroom in Crystal City when the 9/11 case was still stalled during the pandemic.
The techs, it seems, are still working the kinks out of the new remote courtroom.

--I call the new facility ELC-North for the Expeditionary Legal Complex's northern annex.
--Judge McCall, sitting in ELC-South, shown here, calls it The RHR, for Remote Hearing Room.

While I was typing and tweeting, the court went into a lunchtime recess to coincide with the defendants' prayer schedule. The KSM discovery arguments and prosecution rebuttal resume at 130 pm

The 9/11 hearings are back from lunch recess. Alka Pradhan is arguing from the war court annex, aka ELC-North, in Crystal City, Virginia. We see her on the screen, it seems, just like the court at Guantanamo Bay.
(No photography allowed, or I'd show you.)

Ms. Pradhan is reviewing the need to show the 9/11 defendants all the evidence that the lawyers can see, and consult with her client Ammar al Baluchi fully about it-- in part because the memories of a "brain injured client" is an incomplete resource.

Context: Prosecutors forbid the lawyers from showing the defendants some classified material as part of their national security court prerogative.
It's for the lawyers' eyes only.
Detainees can study some documents in their cells.
Some is marked DISPLAY ONLY, shown at meetings.

Ms. Pradhan invokes the testimony of James Mitchell, the psychologist who designed "enhanced interrogation techniques." He said he had to review records all these years later to testify. (One technique was "walling," which Baluchi's lawyers say caused traumatic brain injury.)

This is the first public use, I believe, of ELC-North and it sounds like the techs are going to need to put that "slow down" light in the remote courtroom facility.
Translators are asking the judge to ask Ms. Pradhan to slow down.

Now arguing for the prosecution at Gitmo: Air Force Capt. Jackson T. Hall who was added to the courtroom for this week's hearing.
(Last week all the prosecutors were civilian due to the retirement announcement of chief prosecutor Brig. Gen. Mark Martins, who un-detailed himself.)

Prosecutor Hall says the government has met its obligations under the law. "I guess it's an issue of Do the rules of evidence... Do the rules of discovery change because it is a death-penalty case..."
And, he says the answer is, No.

Prosecutor Hall: Our side can't just un-classify something. Or it wouldn't be classified.
He points to the federal CIPA prosecution of Dzhokhar Tsarnaev in the Boston Marathon bombing case. It was a capital case too, he said, and the defense didn't get to see everything.

Just over his left shoulder we see the newest capital defense lawyer to join the 9/11 case -- David Bruck, who defended Tsarnaev at trial.
He now represents Ramzi bin al-Shibh, and is attending his first hearing in the case.
nytimes.com/2020/04/12/us/…

Mr. Bruck is up and tells the judge what I just told you. He defended Mr. Tsarnaev.
As he recalls it, CIPA "played such a trivial role" in that capital case that, and cautioned the judge against considering it a role model. He says he'll review its use and tell the judge more.

KSM lawyer Radostitz says, separately, that the only capital 9/11 prosecution, of Zacarias Moussaoui, should serve as the guide. Federal judge Leonie Brinkema found the defense was so disadvantaged by how the government wielded CIPA that she took the death penalty off the table.

Injecting this tweeter's aside...
Before a higher court reinstated it.
archive.nytimes.com/www.nytimes.co…

The 9/11 court is now in an afternoon recess until 1505. (3:05 pm.)

KSM attorney Gary Sowards is now asking the judge to order the prosecution to give more details about the circumstances, behind-the-scenes details of Mr. Mohammed's interrogation by the FBI at Guantanamo in January 2007.

Prosecutors call the FBI interrogators "clean teams." Defense lawyers say they were dirtied by FBI-CIA collaboration, as well as his three-plus years of abuse, without lawyers in clandestine CIA custody.

Here's something I wrote on the topic before the pandemic ground pretrial progress to a halt.
nytimes.com/2019/07/29/us/…

"Torture is only always in the room," says Mr. Sowards, blaming delays in getting the case to trial on government secrecy. He calls it "the collision between the incidents of torture in this case and the government's resistance to the disclosure of information."

Mr. Sowards revisits Lt. Berg's lurid descriptions from Friday of what was done to KSM, adds that soon after his capture in 3/2003 interrogators had his young sons in the next room and threatened to slit their throats if he did not talk.
(Transcript: mc.mil/Portals/0/pdfs…)

Nobody ever told Mr. Mohammed, says Mr. Sowards, that they had released his boys -- even nearly four years later when the FBI began to interrogate him. (They did.)

Mr. Sowards wants access to the people who observed the "clean team" interrogations, including a Navy lawyer at Guantanamo prison in 2006 and, sounds like, two current case prosecutors who were on hand as consultants.
No recordings were made, so he wants to talk to them.

Lead prosecutor Bob Swann, a retired Army colonel is offering an emotional wide-ranging rebuttal:
"Counsel may believe that torture is always in this courtroom but in January 2007 it was not."
(Refers to KSM's FBI interrogation at Gitmo's Camp Echo, before the court was built.)

Prosecutor Swann says that, although prosecutors didn't charge it, KSM at one point at Guantanamo admitted to killing Daniel Pearl.

Mr. Swann also said that he saw KSM taken to his Gitmo interrogation, remained in the vicinity but decided not to watch it.
"I wanted to see what a terrorist looked like," he said, "and quite frankly I was disappointed."

Mr. Swann dismisses Mr. Mohammed's lawyers' description of Mr. Mohammed's sexual assault.
"He was rectally hydrated," says Mr. Swann, "because when he was first picked up he was dehydrated," and wouldn't drink water.

Mr. Swann: KSM has eight children, "that's the number that he killed." (Died on 9/11.)
In response to the threat to slit the throats of two of them, Mr. Swann says the two young boys were "picked up" in a 2002 raid that captured a different case and were "treated well."

Mr. Sowards' turn: Daniel Pearl had nothing to do with the circumstances of today's motion, reminds it is an effort to get enough eyewitness testimony to try to demonstrate that KSM was involuntarily compelled to confess to the FBI at Gitmo.

Mr. Sowards says that it was CIA contractor James Mitchell who threatened to slit the boys' throats while pressing him to admit he killed Daniel Pearl-- and so KSM admitted to it.

The defense lawyer notes Mr. Swann's evident emotion why he argued. "Sometimes we get too close to the issues in the case," says Mr. Sowards, rather dryly. "Mr. Mohammed is presumed innocent."

Mr. Sowards says the behind-the-scenes players at Gitmo created the conditions for the FBI interrogations, defense need to question them.
Mr. Swann: " I marshalled people. I just kept the wheels running."
He says he trusted law enforcement to handle the interrogations.

Judge McCall: They say they don't have any more. What is the point of ordering it?
Mr. Sowards seems to believe there is more to be surfaced.
Mr. Swann says they turned over everything, and if they find something else, they'll get it.

Judge McCall is wrapping up for the day.
He says he'll meet with KSM's team, ex parte, at 9 a.m. tomorrow to hear their theories of defense to help him evaluate the prosecution's redactions and substitutions of evidence.
No open court tomorrow.
Logistics briefing on Wednesday.

It sounds like prosecutors want to close court for Wednesday's briefing on government efforts to ready Guantanamo for a 9/11 trial.
I hope in the interests of transparency the judge finds a way to let the public see some of it.
Today's hearing is over.