Is the Guantanamo courtroom being bugged by unknown parties? This weekly summary of proceedings is by Valerie Lucznikowska of September Eleventh Families for Peaceful Tomorrows, an organization that continues to lobby for the closure of the Guantanamo Detention Center. Invited as a 'family member' who lost someone in the 9/11 attacks she has documented some surprising aspects of the trial.
"Rita Lasar and I attended the Guantanamo hearings through CCTVthis week at Fort Hamilton Army Base in Brooklyn. (Each of us missed someportion of the events, but one of us was always present.) The current hearingsare to review and decide motions brought by the defense in the cases of KhalidSheik Mohammed (KSM), Ramzi Binalshibh, Walid binAttash, Mustafa Ahmad al-Hawsawi and Ali Abd al-Aziz Al, the so-called 9/11co-conspirators.
As I had not attended such proceedings before this, I was struckon Monday by the realization that most of the motions (which can be seen on theOMC website) were procedural, and precedents were called up largely fromfederal law and also from military law. That stands to reason as the military commissionscourt (also referred to as the military court and tribunal) is based on theMilitary Commissions Act of 2009 (which replaced the Military Commissions Actof 2006) and has no precedents in capital cases, nor many precedents at all.(NB: Military commissions law, first established in 2006, is not the same asmilitary law, and normal military courts rarely deal with anything as seriousas death penalty cases.) So we are dealing with a whole new structurethat has to be articulated, and sometimes invented, as it occurs. Motions thatwere to be heard (not all of which were taken up during these sessions) are inan attached document, previously sent by Karen Loftus. Not all motions listedwere actually heard, and some were named as classified and heard in camera (private session).
Monday also provided the most significant (and startling)event of this week's hearings: an unknown source cut off the CCTV video andaudio while KSM lead counsel Nevin was referring to a motion relating to blacksites. CCTV stream is on a40-second delay to all (family members and press are in a sound-proof roomwatching the proceedings) to allow time to cut off the feed if classifiedinformation is inadvertently mentioned. This sent the usually calm andcollected Judge Pohl into a state of high irritation, asking why this hadhappened as he is the only one in his court who can order the security officerto push the button that cuts off the feed, and he had not ordered it. DoJ(Department of Justice) lawyer Joanna Baltes explained that the "OCA"(Original Classification Authority) in this motion, which refers to interrogationsat black sites, would be the CIA – pointing to that agency as the source. In turn, this provoked deep concern in the defense attorneys who wantedto know if the communications among themselves and with their clients - in andout of court - were being recorded or overheard. Subsequently, the judgeordered the cut audio and video to be publicly released, as there was noclassified material divulged, and ordered "an undisclosed” governmentagency to remove any enabling equipment from his courtroom (“unplugged”).
The defense introduced an emergency motion to haltproceedings until they are assured they are not being overheard. JudgePohl did not rule on that motion, but said that this must be resolved firstthing at the next session on February 11, and it will be discussed among theparties in the interim.
In another important development, the defense leveled acharge of “unlawful command influence”, meaning interference from thegovernment. Responding to this, the judge has orderedthe “convening authority” – the Pentagon’s most senior official responsible forthe war court, retired Vice Adm. Bruce MacDonald, to testify in a pre-trialhearing the week of Feb. 11.
Judge Pohl heard arguments on 15 motions and ruled on six, onewas withdrawn by the defense and one was mooted. A number of othermotions that are not yet decided deal with information flow among defenselawyers and their clients, and between the prosecution and defense. One defensemotion asks the judge to remove the language allowing the OCA to determinewhether a piece of information is allowed to be given to the defense on a“need-to-know” basis.
Another important motion dealt with the defense's request thatdefense lawyers be granted 48-hour stays in the area of confinement of theirclients to properly investigate the conditions of their confinement. The judgehas not ruled on this as yet, and indicated that the hearing could be partiallyclosed as classified.
It is clear from viewing the proceedings that reinventing ajustice system is a long and arduous road, and thousands of motions may stillbe in the offing, indicating a trial date at the very minimum of a year, andconceivably much more, away. One defenseattorney thinks it will be at least 2-3 years away. Most agree that if thetrials had been held in federal court, they would have been over and done withby now.
Nevertheless, I found the proceedings fascinating, and hope Iwill be able to attend the February sessions (Feb. 11-14 - see attached) whenarguments will be heard on motions to dismiss (such as "Motion to DismissBecause the Military Commissions Act Unconstitutionally Requires the ConveningAuthority to Act as Both Prosecutor and Judge of the Defendants") will beheard, as well as, perhaps, a resolution to the mystery of the governmentagency that bugged the courtroom!"
[Passed on to you as received on February 2, 2013 by Bruce Wallace, 121Contact]