On June 14, 123 people — including a military judge, teams of civilian and military defense lawyers and prosecutors, eight courtroom observers, and 15 journalists — flew on a C-17 from Andrews Air Force Base to Guantánamo Bay for military commission proceedings. It is my fifth trip to Guantánamo, and the second to cover the pre-trial hearings related to the September 11, 2001 attacks. (I went three times in 2010 to cover the last hearings in the case of Omar Khadr, the Canadian “child soldier” who pled guilty and was convicted in October 2010. My reporting on that case can be found here, here, here and here.)
This time around, the media pool includes TV reporters from NBC, CNN and Fox News. These outlets had not sent anyone in years because the happenings at Guantanamo aren’t deemed sufficiently newsworthy to justify the expense. But interest was ignited by the prisoner swap two weeks ago when the Obama administration quickly and secretively transferred five Afghan prisoners out of the Cuba prison in exchange for the release from Taliban custody of American prisoner of war Bowe Bergdahl. The transfer happened so quickly, in fact, that Cmdr. John Filostrat, spokesperson for Joint Task Force-Guantánamo, said he learned about it on the news. Filostrat gave one-on-one interviews to members of the media on June 15. My short interview with him can be heard here.
Usually, ten seats are reserved for 9/11 victims’ families who wish to make the trip, and they are selected through a lottery. This time, however, none were invited. As Karen Loftus, the staffer in the Office of the Chief Prosecutor of Military Commission who acts as liasion with the families, explained in an e-mail, “Knowing how difficult it is for our families to make this trip to GTMO, and with the likelihood that the families may get an hour or two in court at most, we decided not to bring families to GTMO in June.” The slowness of the proceedings, which is inexplicable to many laypeople who are not attuned to the unique legal issues that this case raises, is a major cause of frustration for many victims’ family members. So keeping them away this week makes perfect sense. Not only are the proceedings not moving forward, but the case has also been temporarily derailed by recent events.
The one-day 9/11 hearing this week focused exclusively on revelations that emerged in April that the FBI was conducting investigations into the defense teams of the five suspects, and had solicited team members (none of them lawyers) to report on their colleagues. Special prosecutors were appointed to look into the matter and respond to defense allegations that this spy operation created real or potential conflicts between lawyers and their clients. At the hearing on Monday, no one from the 9/11 prosecution team was present in court because that team was “walled off” to enable the defense lawyers and special prosecutors to speak freely about possible detrimental consequences of the investigation for lawyer-client relations and due process.
The lead special prosecutor, Fernando Campoamor-Sanchez, argued that the FBI investigations are not happening now (i.e., they are over) and, therefore, there is no basis to argue conflict of interest or to hold further hearings. Defense lawyers were not assuaged. James Connell, lead lawyer for Ammar al-Baluchi, argued:
[T]he prosecution’s argument that “there is no investigation” is heavily dependent upon tense. It is heavily dependent on…the simple present tense, and that’s significant because of the procedural posture that this has happened.
Connell and the other defense lawyers urged the judge, Col. James Pohl, to initiate a thorough inquiry into the full scope of the FBI investigation: who was being investigated and why; who on the teams cooperated with the FBI; and who up the chain of command ordered the investigations.
The lawyers claimed that they cannot know if there is a conflict of interest unless they know the details about the FBI investigations. As Connell explained, typically when the possibility of a conflict arises, a defendant can seek an opinion from a different lawyer about whether his rights have been compromised:
But because Mr. al Baluchi can’t communicate with anyone, he can’t communicate with the American Bar Association, he can’t communicate with the Virginia state bar, he can’t communicate with the International Human Rights Organization. He can’t communicate with anybody. He can’t call an attorney said say, “I need a second opinion,” which is something that everyone else in the whole United States can do.
The lawyers also described the chilling effect of the investigations on their own abilities to do their jobs. David Nevin, lead lawyer for Khalid Sheikh Mohammed, elaborated:
This is an unusual case, and we know that. We’ve known that all along. It’s a very unusual case…. I believe we are under investigation and we’re under scrutiny all the time, and…my analogy of sitting around the campfire and hearing the wolves howling out there is not based on my imagination. I’m not saying, ‘Was that a wolf,’ and my companion is turning to me and saying, ‘What are you talking about, that was my pack creaking.’ No, we have been down this road many times….
Here, Nevin is alluding to government reviews of written communications between lawyers and clients; the audio feeds discovered on defense counsel tables in the courtroom; the accidental transmission by the prosecution’s information technology staff of thousands of defense teams’ confidential emails, which are stored on a shared server; and the electronic monitoring devices hidden in smoke detectors in rooms where defense lawyers meet their clients.
Nevin went on:
Until we know that we’re in a position to protect client confidences, we can’t engage in defense work…. [T]hat’s why I used this analogy about the campfire and why I talked to the court about Lynne Stewart and why I talked to you about the trip to the Middle East that I canceled. These are not hypothetical matters that I’m throwing out here for argumentative purposes…
We act, we act, we live in a state of uncertainty. And the inquiry that we have proposed…is what will allow us to pull back the clouds, get some sunlight in here and let us see where we stand. And then we can go forward.
It is not clear when Judge Pohl will issue his decision in the matter. The next round of hearings for the September 11 case is (tentatively) scheduled for August 11-15.