Thread by @GitmoWatch

Good morning from Guantanamo! Today is the 5th day of the 3rd week of the 47th 9/11 pretrial hearings. 🧵

Three of the four defendants waived right to attend this morning's proceedings. Ammar al Baluchi is present.

The fifth defendant, Ramzi bin al Shibh was recently severed for mental incompetence. Background by @carolrosenberg here: nytimes.com/2023/08/25/us/…

Transcripts for arguments relating to bin al Shibh's severance are now posted with some curious redactions. Find them here: mc.mil/Portals/0/pdfs…

These arguments were made in public sessions, but the transcripts are redacted. There were no classified issues raised. Gary Sowards argues the redactions are completely unwarranted. Judge McCall agrees -- but says a 'different entity' reviews the transcript.

Sowards raises the possibility that this is a continuation of the classification of CIA torture which led to a 'four-letter' diagnosis..

Judge McCall notes he has noticed other unreasonable redactions and will address it.

McCall also notes that he didn't rule that Ramzi bin al Shibh's diagnosis was related to the RDI program -- that wasn't necessary for the severance.

J Connell for @BaluchiGitmo begins argument on AE828 Mr. al Baluchi’s Motion to Compel Discovery Regarding Cooperating Witness. The unclassified motion filed more than two years ago is still not available on #FairnessTransparencyJustice mc.mil

Mr. al Baluchi seeks documents regarding a cooperating witness (“CW1”) involved in the investigations which led to the Charge #1. They don't request the identity of CW1 because the government has invoked national security privilege over CW1’s identifying information.

This relates to Charge 1: Conspiracy. The 1996-2001 conspiracy sweeps in a lot of evidence. The FBI investigation of that conspiracy didn't begin on 9/11/2001.

Antol testified Khalid Shaikh Mohammad told him the CIA said it was the FBI's fault the hijackers got into the US.

CW1 is central to the pre-9/11 conspiracy. DoJ, 9/11 Commission, FBI OIG spent a lot of investigative time and efforts on CW1.

Connell outlines some evidence that points to the significance of of CW1:
CIA documents CIA-Legat discussions about the status of CW1

CIA TDs summarize info provided by CW1 after 12 Oct 2000

FD-302s or ECs from FBI NYFA Special Agents’ interviews of CW1 after 12 Oct 2000

Late Oct/Nov 2000 documentation of info Yemen provided to FBI and CIA re Khallad

22 Nov 2000 photograph of Khallad provided by Yemen to FBI

Late Nov 2000 CIA cable suggesting that the Khallad photograph the FBI had obtained from Yemen be shown to CW1

Late Nov/Dec 2000 documentation of forwarding Khallad photograph through CIA channels to ALAT “Max”

Dec 2000 CIA cable discussing significance of al Mihdhar and requesting copies of Jan 2000 Kuala Lumpur surveillance photographs

Dec 2000 CTC cable endorsing significance of al Mihdhar and forwarding Kuala Lumpur surveillance photo

Dec 2000 CIA cable discussing Khallad in connection with Cole investigation, and others.

Connell argues this discovery is also relevant to how the US government treated the al Qaeda threat during the 1996-2001 timeframe, which the government argues was wartime although there's scant evidence to support this.

Defense argues the war began with the DoD Afghanistan entry 7 Oct 2001.

MAJ Dastoor reduces Connell's arguments to 'whataboutism.' What about the US was doing diplomatically? What about they were doing with the military?

He says the state of hostilities 1996-2001 is grounded in common sense, despite that period not meeting the standards of intensity and duration to suggest a state of armed conflict.

Connell argues this line of discovery is directly related to the former CIA Rendition, Detention, Interrogation Program -- the Torture program.

This pre-9/11 FBI and CIA integration, and sometimes lack of, supports the long-term looping the government denied for years in attempts to keep 'clean teams' clean. SA Fitzgerald who was a 'clean team' member was also knowledgeable in this pre-9/11 investigation.

Was the United States 'at war' with al Qaeda in 1996?

Commissions in morning comfort break recess.

Commissions called to order. Next up is AE827 Motion to Compel Discovery Related to Omar Al Bayoumi mc.mil/Portals/0/pdfs…

Part II mc.mil/Portals/0/pdfs…

Part III mc.mil/Portals/0/pdfs…

This motion also relates to EO14040 -- certain documents concerning the terrorist attacks of September 11, 2001
Those documents live here: vault.fbi.gov/9-11-attacks-i…

Connell is explaining the three tranches of FBI 302s (investigative reports) the government has produced in the history of the case with a varying degree of redactions from relevancy to PII (personal identifying information) -- tens of thousands of pages.

Connell explains this case history which the 7th 9/11 judge may not have knowledge of. Efforts to obtain discovery has been a significant issue in why this case is taking so long.

The government has produced less than 10% of existing 302s with over 125k redactions, the other 90% the government says are not relevant.

Documents released under EO 14040 revealed a massive gap in discovery that exists compared to what the government has produced.

Defense teams also rely on Freedom of Information Act releases to identify gaps and inconsistencies in discovery which are then litigated.

The investigation into Omar al Bayoumi closely relates to evidence the government plans on introducing at trial -- the martyr videos, for example.

CBS covered Bayoumi in this piece: cbsnews.com/news/911-hijac…

New Scotland Yard provided evidence seized from al Bayoumi's apartment to the FBI. There are vague references to this evidence in government-produced discovery.

Another GTMO day, another #NatSec issue here at the Military Commissions.

MilComs in recess.

MilComs called to order.

Before the break we had the #NatSec alarm but turns out the source of information was actually unclassified -- surprise surprise!

Phone analysis links Bayoumi to Anwar al Awlawki who was killed in a targeted drone strike. Awlawki was a known al Qaeda member. int.nyt.com/data/documentt…

Connell is going through FBI 302s pulled from FOIA and EO releases that should have been produced through MilComs discovery process but were not. He has knowledge of them from EO 14040 release which included about 6k pages.

The Bayoumi-related 9/11 support cell is intertwined with the RDI program as well. The FBI sent requirements questions regarding the cell. Connell informs the #MilComs he would have questioned witnesses on this in prior testimony, specifically SA Drucker and SA Fitzgerald.

Al Bayoumi was closely tied to the 9/11 conspiracy in his support of hijackers Hazmi and Midhar but also in the FBI's 9/11 follow-up investigation including CIA black sites were looped into that investigation.

Defense investigator, Don Canestraro authored an official declaration on his investigation into Omar al Bayoumi. @seth_hettena 's article about it here: spytalk.co/p/exclusive-fb…

Bayoumi is part of the 9/11 conspiracy and the 9/11 investigation.

Connell's arguments are compelling -- a substantial amount of evidence suggests Bayoumi was a part of material support for the 9/11 conspiracy but remains free and unindicted.

Prosecutor Ryan: The government decides what is relevant to the defense and what information should remain classified.

Ed Ryan argues there are so many of pages of investigative materials on Omar al Bayoumi that it proves the FBI's diligence in clearing him of conspiracy.

Ryan focuses on the findings of the Operation Encore investigation -- that because Bayoumi hasn't been indicted, he wasn't a 9/11 co-conspirator. Judge McCall doesn't seem to buy it though he says he understands the government's position.

Regardless, the fact Bayoumi is unindicted doesn't mean the investigative materials aren't material to the defense.

Connell: Intent is important -- there's nothing illegal about wiring money -- wiring money with the intent of aiding a crime is.

Prosecutor Ryan informed the MilComs they found over 9k pages relating to al Bayoumi -- which broadly speaking is a sliver compared to the over 490,000 pages already produced by the government in the 9/11 case.

MilComs in recess

Commissions called to order.

Connell now argues AE703J Defense Motion to Reconsider Protective Order #6

AE703J covers protective orders issued by the government on the defense.

The government’s efforts to restrict defense investigation into CIA torture of the defendants and its effects led the military commission to suppress the defendants’ statements at Guantanamo, a sanction the commissions is still trying to sort out.

The protective order requires defense to go through law enforcement to send request letters for certain witnesses.

Obviously, this is not idea in getting witnesses to chat. Cold calling is the go-to technique for approaching witnesses.

CAPT Brown for the government argues PO#6 is similar to #4 and #5 but fails to mention PO#4 resulted in sanctions that suppressed the prosecution's best evidence against the five defendants indicted in the 9/11 case.

Judge McCall, 22 years after the crime -- 'We're not on the eve of trial, unfortunately.' He's trying to figure out creative ways for defense to work with essential witnesses.

With PO#4, the government sends letters to witnesses informing them defense would like to speak with them. Very compelling letters people love to receive and encourage them to speak about their time at Guantanamo Bay.

Pros Dykstra informs the MilComs they spent 800 hours on these special letters and witness lists.

That's all for week 3 of the 47th 9/11 pretrial hearings. Back on Monday at 0900. Thanks for tuning in!

@threadreaderapp unroll pls