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Thread: Key 9/11 Suspect To Be Tried In New York

  1. #301
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    Guantánamo judge calls recess over possible national security concern

    http://www.miamiherald.com/2013/06/2...#storylink=cpy

    By CAROL ROSENBERG
    crosenberg@MiamiHerald.com

    GUANTANAMO BAY NAVY BASE, Cuba -- The judge in the Sept. 11 conspiracy trial abruptly cleared the court Thursday during questioning of a former prison camps commander about what intelligence groups were at work on this remote base.

    At issue in the hearing is who and what organizations influenced Navy Rear Adm. David B. Woods as he restricted attorney-client communications ahead of last May’s arraignment of the five men accused of orchestrating the Sept. 11, 2001 hijackings and 2,976 murders.

    Woods had already testified that nobody ever told him that the CIA had input into an order that regulated the work of defense attorneys for the 9/11 accused and other former CIA captives. Cmdr Walter Ruiz, defense lawyer for a Saudi defendant, was asking the admiral what intelligence organizations he knew operated at Guantánamo during Woods’ 10-month tenure, which ended a year ago.

    Suddenly, the Department of Justice’s attorney with expertise in classified intelligence interrupted. The lawyer, Joanna Baltes, appeared so alarmed by the line of questioning that she mistakenly referred to Ruiz as “Commander Reyes,” another Navy lawyer from another war court case in which the accused was waterboarded.

    Army Col. James Pohl, the judge, had the court feed to a Navy base near San Diego, where Woods was testifying. Ruiz protested interference in his court examination, and advised the judge: “If she wants me to use the term ‘agency who shall remain nameless’ I can do that.”

    Baltes took Ruiz aside and told him something. Another prosecutor chimed in, out of earshot of the microphones.

    Ruiz, a veteran death-penalty defender, then returned to the podium and announced, twice, “I will not be threatened by the prosecution.”

    Later, the chief prosecutor Army Brig. Gen. Mark Martins said the remark that Ruiz saw as a threat was:

    “You’re playing with fire.”

    Martins called the exchange “a moment of heat not uncommon in criminal trial practice.” He did not identify which prosecutor said it, but said it was intended “as a genuine caution — admittedly one delivered emphatically by the member of the prosecution.”

    Ruiz also sought to argue that it’s not the prosecution’s job — but that of a specialized court security officer at the judge’s elbow — to police what the public can hear. Both the judge and the security officer have a kill switch that can mute audio to spectators.

    Pohl declared the whole matter better discussed in a closed session. It’s called a 505H, and meant for lawyers and the judge to discuss the likelihood of secret evidence coming out in court.

    The judge ordered the Army guards to take the accused 9/11 conspirators to their holding cells, and the court be cleared. But not before attorney David Nevin, defending alleged mastermind Khalid Sheik Mohammed, protested closure of the court to his client and the other four men in the death-penalty proceedings.

    The recess to discuss classified information lasted about 90 minutes. Ruiz resumed questioning Woods but nothing was said about any secret intelligence agencies.
    No One Knows Everything. Only Together May We Find The Truth JG


  2. #302
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    Secrecy squabbles disrupt Guantanamo hearing in 9/11 case

    http://www.reuters.com/article/2013/...95I1PQ20130620

    By Jane Sutton
    GUANTANAMO BAY U.S. NAVAL BASE, Cuba | Thu Jun 20, 2013 12:30pm EDT

    (Reuters) - Secrecy disputes disrupted a pretrial hearing on Thursday in the Guantanamo war crimes tribunal for five prisoners charged with plotting the September 11 hijacked plane attacks in 2001.

    Defense attorneys said the audio feed to the spectators' gallery had briefly been cut, as was the feed that provides Arabic-to-English translation to the defendants, who include the alleged mastermind of the attacks, Khalid Sheikh Mohammed.

    The interruption came as one of the defense lawyers, U.S. Navy Commander Walter Ruiz, questioned a former commander of the Guantanamo detention operation about whether intelligence agencies or contractors were meddling with attorney-client mail that is supposed to be confidential.

    Ruiz referred at one point to the CIA and at another to the USDI, the undersecretary of defense for intelligence - a senior U.S. Defense Department post.

    Prosecutors objected to the questioning and Ruiz said the audio feed had been cut by an unseen hand outside the courtroom. Prosecutors said it had not been cut.

    Ruiz asked if he should refer to the CIA as "the agency who shall remain nameless." After a side conversation that was inaudible to journalists watching on monitors in the press center, Ruiz said, "I will not be threatened by prosecution and I want that to be clear."

    In accordance with the rules governing the tribunal, the judge called for a closed session to decide what could be discussed in open court. Spectators were ordered out and the defendants were removed, triggering a round of objections from their lawyers.

    Secrecy disputes have regularly sidetracked the proceedings at the U.S. naval base at Guantanamo Bay, Cuba. A previous hearing was disrupted when intelligence monitors listening from outside the courtroom cut the public audio feed, but the judge, Army Colonel James Pohl, ordered that kill switch disabled.

    The United States has held foreign terrorism suspects at the Guantanamo facility, which has been criticized by rights groups and others.

    CLASSIFIED INFORMATION
    Pohl still must decide whether the defendants can be present in the courtroom when classified information is discussed during pretrial hearings.

    The lawyers have said that most of the classified information relates to the years the defendants spent in secret CIA prisons between their capture in 2002 and 2003 and their transfer to Guantanamo in 2006.

    The agency has acknowledged that Mohammed was subjected to the mock-drowning technique known as waterboarding 183 times, and defense lawyers say all five defendants were interrogated using now-banned methods that constituted torture.

    Once the trial starts, which will be in late 2014 at the earliest, the defendants will be allowed to hear everything heard by the jury of U.S. military officers who will decide whether they are guilty of crimes that could lead to the death penalty, including terrorism, hijacking and murdering 2,976 people.

    Prosecutors argue that trial rules allow the defendants to be excluded from pretrial hearings to discuss legal arguments pertaining to classified information that could jeopardize national security if disclosed.

    Defense lawyers argue that the rules allow them to stay in the courtroom unless they are disruptive, and that they should be allowed to hear all the pretrial arguments in a case that could end with their execution.

    "Mr. Mohammed has a right to be present when we're talking about matters that deal with his torture," said Mohammed's lawyer, David Nevin.

    Prosecutors acknowledged that the defendants had been exposed to classified intelligence sources and methods during their time in CIA custody. The judge said that if the defendants themselves were to testify about such matters, then "obviously they'll be present for that."

    "If the information came from them in the first place then we can release it back to them," defense attorney James Connell clarified during Wednesday's session. He represents Mohammed's nephew, Ali Aziz Abdul Ali, who is accused of sending the September 11 hijackers $120,000 for expenses and flight training.

    The defendants have sat quietly during this week's hearings, flipping through court documents and chatting with their lawyers without any of the outbursts that have marked earlier hearings.

    All were dressed in white clothing, with turbans or keffiyehs. Mohammed wore a jungle-print camouflage jacket over his.
    No One Knows Everything. Only Together May We Find The Truth JG


  3. #303
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    What Happens to Justice in a Perpetual War?
    The 9/11 trial limps forward at Guantanamo Bay

    http://www.rollingstone.com/politics...#ixzz2XKz0xS1o

    By John Knefel
    June 25, 2013 4:45 PM ET

    I.

    Emma Barker-Lasar is 19 years old. She attends community college in central New Jersey and works part-time for minimum wage at a Goodwill, but needs another job because she can't get scheduled for more than 29 hours a week. She was seven years old on September 11th, 2001, the day her great-uncle Abraham died at the World Trade Center. She still remembers being spirited out of school and back home to watch the morning's tragic events play out. "I was really mad, because I had just started eating some popcorn and I had to throw it out," she remembers with a quiet laugh, sitting at a picnic table a quarter-mile from the military courtroom at Guantanamo Bay, Cuba. Her parents sat her in front of the TV that day and told her, "This is what's going on right now, and we wanted to have you here with us."

    Earlier this month, Barker-Lasar travelled to Guantanamo with her grandmother, Rita (Abraham's older sister), to witness the early stages of the trial of five accused 9/11 plotters firsthand. They're both peace activists – members of a group called 9/11 Families for Peaceful Tomorrows. "Mostly, I wanted to be here to see where it is that we're trying these men, what kind of a court we're using," she says. She pushes her hair back absent-mindedly and reveals a tattoo of the outline of New Jersey behind her left ear. "And to be perfectly honest, I don't agree with how we're doing it."

    II.

    There is no date set for the 9/11 trial to begin. While the latest round of pre-trial proceedings covered many topics, one major theme emerged: According to defense attorneys, restrictive governmental policies have made representation of their clients impossible. Over five days in late June, defense lawyers questioned three former Guantanamo officials – two Admirals and a high-ranking Navy lawyer and legal advisor, called a staff judge advocate (SJA) – in an attempt to show that their orders violated attorney/client privilege, rushed death penalty charges and interfered with the development of trial strategies.

    At the heart of these issues was an October 2011 seizure and subsequent search of legal bins that belonged to the five defendants. The seizure was prompted in part by Navy defense attorney Walter Ruiz's attempt to send his client, Mustafa al Hawsawi, an issue of the al Qaeda magazine Inspire, without explicitly marking it as attorney/client material. The magazine – which included a now-notorious article titled "How to build a bomb in the kitchen of your mom" – was categorized as contraband and never made it to the ultra-secretive Camp 7, where the 9/11 defendants and other high-value detainees are held.

    Why was a magazine considered contraband? David Nevin, the defense attorney for self-proclaimed 9/11 mastermind Khalid Sheik Mohammed, pressed Navy Captain Thomas Welsh, the SJA, on whether the bomb-making items listed in the article were available to detainees in Camp 7. Welsh acknowledged that they most likely were not. Another defense attorney, Jim Harrington, argued the article could be relevant for developing a legal strategy. "Suppose the case is about making bombs," a visibly exasperated Harrington asked Welsh.

    The October 2011 seizure was followed by a December 27th, 2011 order issued by Rear Admiral David Woods, the Guantanamo prison commander at the time. That order, which the CIA had a role in drafting, defined "historical perspectives or discussions on jihadist activity" as contraband, and also created a so-called privilege team to review content being sent to detainees. The chief Guantanamo defense attorney at the time, Marine Colonel Jeffrey Colwell, responded by telling his lawyers to stop sending written communication to their clients.

    Attorneys also argued that they were hampered in their ability to argue against their clients having to face execution. At Guantanamo's military court, a commander known as a convening authority determines whether the death penalty will apply to a given case. Defense attorneys can file papers arguing that their clients should be punished with life in prison instead of being put to death, based on factors including the defendants' personal history and their pre-trial confinement conditions, which in some cases included torture.

    The convening authority in the 9/11 trial is retired Vice Admiral Bruce MacDonald, who instituted a 60-day deadline to file these papers after the final member of the defense team received security clearance. Each defense team argued that this wasn't nearly enough time. Defense attorney James Connell was the only one of the five teams to file a submission under the deadline – which he said was rushed and incomplete. Nonetheless, Admiral MacDonald referred to it in testimony as "excellent," and said it made him think long and hard about whether the case should be capital or not.

    Connell says he pressed the Admiral on this point in an effort to get him to say it wasn't a foregone conclusion that this would be a death penalty case. "What we learned was that whether we had time, whether we had the ability to talk to the client, whether we had resources mattered," he says. "Because he might have made a different decision."

    Over the course of the week, one defense team also introduced a motion to compel the International Committee of the Red Cross to turn over information about their client's treatment while in CIA custody and at Guantanamo. The ICRC objected to the move, saying it would destroy their unique worldwide mandate to conduct confidential investigations in conflict zones.

    III.

    Every aspect of Guantanamo Bay is about control of information – from the high-tech courtroom with its delayed media feed, to the secretive prisons, to the location itself. The reflexive secrecy is sometimes petty, like when a member of the guard force last week confiscated the stadium glasses the sketch artist had been using for three years ("no ocular enhancement"), or when a guard told the reporter from Germany's Der Spiegel that his crude scribble of the courtroom layout was classified. The drawing was later returned with "Confiscated 17 June 2013" and initials scrawled at the bottom.

    At other times, issues regarding secrecy and openness are foundational – as illustrated by the total breakdown in proceedings when defense attorney Commander Walter Ruiz questioned former prison commander Admiral Woods about the CIA's role in determining a process to search attorney/client communications, and in intelligence gathering on the island generally. "[One of] the entities on the island at the time that you were the commander would have included the CIA, correct?" Ruiz asked. Joanna Baltes, a civilian prosecutor who specializes in handling classified information, immediately objected on the grounds of relevance. "Is that the real basis?" asked the military judge, Army Col. James Pohl – hinting that the real reason was the prospect of sensitive information being discussed in open court.

    Ruiz, Baltes and another prosecutor had a brief, inaudible meeting in the middle of the courtroom, something like a huddle on the pitcher's mound in a baseball game. During the mini-conference, a prosecutor reportedly whispered to Ruiz, "You're playing with fire." Minutes later, Ruiz said, "I will not be threatened by the prosecution." Ruiz said this prosecutor later apologized; Brigadier General Mark Martins, the lead prosecutor, characterized the remark by a member of his team as a "genuine caution."

    Ruiz had previously spoken with several members of the press about his single greatest complaint about the military commissions: By offering a rigorous and adversarial defense in this trial, he worries that he is giving this process an undeserved veneer of fairness. "Probably the most offensive thing," he said, "is at the end of the day, I may be the biggest legitimizer of this system."

    IV.

    Martins is the sixth lead prosecutor at Guantanamo Bay, and the individual tasked with convincing the country and the world that the controversial military commissions system updated by Congress in 2009 is in fact legitimate. Martins understands better than anyone that success in this goal is at least partially about public perception, and perception is about controlling information. He makes himself accessible to the press, but keeps his answers narrow and on-message.

    What has the biggest surprise been since taking on this role? "I don't get surprised easily," says Martins. In October, a reporter asked about his feelings on that week's proceedings. "I don't tend to experience highs and lows in litigation," he said. (He has also shown a dry sense of humor from time to time. When Admiral Woods characterized admirals as being like generals, only better, Martins – himself an Army general – replied, "Objection, your honor.")

    Perhaps it isn't surprising if General Martins and his team seem to be obsessed with secrecy. After all, that obsession isn't limited to them – it's a government-wide phenomenon. McClatchy recently revealed an Obama administration program called Insider Threat Program, an anti-leak initiative that directly equates disclosing information to reporters with espionage. The land-line phones in the press room at Guantanamo say "use of this telephone constitutes consent to monitoring"; but the secret NSA surveillance programs revealed by leaker Edward Snowden suggest that the differences between here and the mainland are more a matter of degree than category.

    The mad logic of Guantanamo and the modern surveillance state both rest on a common foundation: The U.S. government's ongoing commitment to an endless state of war. Talking about this with a young person like Emma Barker-Lasar can be revealing. Asked if she feels like she has grown up during wartime, she hesitates. "It feels like something else," says Barker-Lasar. "We're obviously at war. But we're so far away from it, we're totally detached."

    Just this month, a U.S. drone strike in Yemen killed a 10-year-old boy – about the same age Emma was when her great-uncle died on 9/11. When will it end? A top Department of Defense official who testified recently before the Senate Armed Services committee predicted that the war against al Qaeda and its associates could last another 20 years. By then, Emma Barker-Lasar will be almost 40 years old.
    No One Knows Everything. Only Together May We Find The Truth JG


  4. #304
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    Judge Asked to Move Along 9/11 Case at Guantanamo

    http://abcnews.go.com/International/...0#.UdMzLFNa7Ak

    By BEN FOX Associated Press
    MIAMI July 2, 2013 (AP)

    A military judge presiding over the stalled Sept. 11 war crimes tribunal at Guantanamo Bay is being urged to speed things along.

    Prosecutors have asked Army Col. James Pohl to set a Sept. 22, 2014, trial date, establish deadlines for pretrial motions and hold a series of monthlong hearings to resolve preliminary matters that must be addressed before the death penalty case against five Guantanamo prisoners can be heard by a jury of military officers at the U.S. base in Cuba.

    Prosecutors say in a motion unsealed Monday that the sporadic, five-day pretrial sessions held so far are not adequate for what is believed to be one of the most complex trials in U.S. history.

    "The current practice of being in court for five days approximately every six weeks is inefficient and will result in litigation that is unnecessarily prolonged, and does not serve the interests of justice," they argue in a motion signed by the chief prosecutor, Army Brig. Gen. Mark Martins, and a civilian co-prosecutor, Clay Trivett.

    The five prisoners face charges by military commission, a special tribunal for wartime offenses, which include terrorism and nearly 3,000 counts of murder for their alleged roles planning and assisting the Sept. 11, 2001, terrorist attack. The defendants include Khalid Sheikh Mohammed, who has admitted to being the mastermind of the plot.

    Their May 2012 arraignment, postponed by a prolonged debate over whether they should be tried in civilian or the military court at Guantanamo, ended up taking 13 hours after the defendants refused to use the court translation system. Subsequent sessions have been put off or delayed by factors that have included a tropical storm threat, the derailment of a train in Maryland that damaged a fiber-optic line that serves Guantanamo, complaints about mold and rat droppings in offices used by defense attorneys and the discovery of listening devices in the rooms in which lawyers meet with the defendants.

    Legal disputes have also bogged down the case. Four defense teams have refused to sign a protective order governing the handling of classified evidence, arguing the restrictions are overly broad and intrusive, and they have battled with officials over the rules on communicating with their clients at Guantanamo that they say interfere with attorney-client privilege.

    The legal complexity of the case stems from the fact that the men were held for several years by the CIA in overseas "black sites," where they were subjected to harsh treatment, including prolonged sleep deprivation and waterboarding, that their lawyers say amounted to torture. What happened to the men in custody before they were transferred to Guantanamo is central to the defense, but aspects of the government's rendition and interrogation program remain classified.

    The slow pace has been difficult for observers, who have included firefighters and relatives of people killed in the Sept. 11 attacks chosen by lottery to view what have turned out to be dense, legalistic proceedings at Guantanamo.

    "There is a lot of frustration and you can see why," said retired New York City Fire Department Capt. Al Fuentes, who attended a pretrial session in June. "It never ends."

    Fuentes, who was severely injured when the North Tower of the World Trade Center collapsed during the attacks, added, however, that the delays do not seem frivolous.

    "People want justice, obviously, and so do I," he said by phone from his home in Long Beach, New York. "But the defense attorneys they have a job to do and they are going to do it to the best of their abilities."

    The defense teams have not yet responded to the prosecution's scheduling motion and lawyers have requested more time to propose an alternate trial schedule. Navy Cmdr. Walter Ruiz, appointed to represent Mustafa Ahmad al-Hawsawi, said he was likely to suggest June 2015. "But even that is ambitious," he said.
    No One Knows Everything. Only Together May We Find The Truth JG


  5. #305
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    Pentagon prosecutors want 9/11 trial in September 2014

    http://www.miamiherald.com/2013/07/0...#storylink=cpy

    Posted on Tuesday, 07.02.13

    Pentagon prosecutors want the military judge presiding over the Sept. 11 case at Guantánamo Bay, Cuba, to set a Sept. 22, 2014 trial date.

    The prosecutors also asked Army Col. James Pohl, the judge, to set deadlines for future motions and to hold month-long hearings to resolve pretrial issues in the death-penalty case of five men accused of orchestrating the Sept. 11, 2001, terrorist attacks that killed 2,976 people.

    Pohl has held five pre-trial hearings, each for about five days. The hearings have tackled disputes over rules for handling classified evidence, allegations of eavesdropping and other factors. Some have been delayed or rescheduled due to bad weather.

    Defense lawyers oppose the proposal. One of them, Navy Cmdr. Walter Ruiz, told the Associated Press Thursday that even a June 2015 date would be “ambitious.”
    No One Knows Everything. Only Together May We Find The Truth JG


  6. #306
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    Five "High-Value" Guantanamo Detainees Improperly Presumed Guilty

    http://truth-out.org/news/item/17367...resumed-guilty

    Wednesday, 03 July 2013 14:17 By Marjorie Cohn, Truthout | News Analysis

    It is a bedrock principle of our system of justice that everyone who is charged with a crime is presumed innocent unless and until proven guilty. That includes "high-value detainees" awaiting trial in Guantánamo's military commissions. Yet pre-trial hearings held June 17-21 in the cases of five men charged with planning the 9/11 attacks revealed a clear presumption of guilt on the part of the government. Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak bin 'Attash, Ramzi bin al Shaibah, Ammar al Baluch, and Mustafa Ahmed Adam al Hawsawi have been charged with crimes for which they could be sentenced to death. Regardless of the emotions surrounding the terrorist attacks, these defendants must be treated fairly, in accordance with the law.

    The issues litigated in the hearings included undue influence exerted on the military commission by political leaders, defects in the charging process, government violation of the attorney-client privilege, the right of the accused to exculpatory evidence in the hands of the International Committee of the Red Cross, and the exclusion of the accused from some pre-trial hearings. Judge James Pohl, who presides over these cases, took the motions under advisement. That means he postponed ruling on them until later. Although one defendant filed a motion to prevent the government from force-feeding him, that motion was not heard.

    Undue influence in the charging process
    Defense attorneys argued that high government officials exerted undue influence on the charging of their clients. The Military Commissions Act (MCA) expressly prohibits "any person" from unlawfully influencing or coercing the action of a military commission. Yet top US officials proclaimed the guilt of some of the defendants before they were charged and their cases set for trial in the military commissions. President George W. Bush made more than 30 public statements directly implicating Khalid Shaikh Mohammad in the 9/11 attacks; some of Bush's statements also named Ramzi bin al Shaibah and Mustafa Ahmed Adam al Hawsawi. Secretary of State Donald Rumsfeld and White House Press Secretary Ari Fleischer made similar statements. President Barack Obama, Vice President Joe Biden, and Attorney General Eric Holder referred to the defendants as "terrorists." Holder named all five defendants as "9/11 conspirators." Obama and White House Press Secretary Robert Gibbs specifically referred to Mohammad, as did Sens. John McCain (R-Arizona) and Lindsey Graham (R-South Carolina). The guilt of the defendants, all of whom face the death penalty, was pre-determined.

    Defects in the charging process
    Mohammed al Qahtani was charged in 2008 along with the five defendants in the present case. But Susan Crawford, the former Convening Authority (CA) - who decides whether and what to charge against defendants in military commissions - determined that al Qahtani's case should not be referred for prosecution. The CA found that "[w]e tortured [Mohammed al] Qahtani ... His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.

    Torture of the present defendants may well have affected the decision to charge them as well, and particularly, whether to seek the death penalty (capital charges). CA Adm. Bruce MacDonald testified that a capital referral was not a foregone conclusion. But defense counsel were prevented from effectively developing that information.

    The Sixth Amendment to the Constitution assures the right to effective assistance of counsel when the government is considering whether to pursue the death penalty. Yet the period preceding the formal charging of these defendants was replete with insurmountable obstacles to "learned counsel," making their assignment meaningless. Under the MCA, defendants have the right to learned counsel, who are learned in applicable law relating to capital cases, to ensure defendants are effectively represented. But several roadblocks to their representation rendered their assignment mere window-dressing.

    Learned counsel were denied timely security clearances, so they were unable to meet with their clients or read 1,500 pages of classified documents. The denial of access to the clients damaged the attorney-client relationship and prevented the defense from building rapport, which is essential in eliciting from the accused facts and circumstances that could lessen his culpability or establish actual innocence.

    Because professionals known as "mitigation specialists" were also denied security clearances, they, too, could not meet with the accused to assist in the gathering of information the defense could submit to prevent their clients from being charged with the death penalty. According to American Bar Association Guidelines, a mitigation specialist is considered: "an indispensable member of the defense team throughout all capital proceedings. Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have."

    Furthermore, the accused were denied qualified and security-cleared translators, and one defendant had no case investigator until weeks before the charges were referred to the commission. Finally, there was a total obstruction of privileged attorney-client communications.

    Thus, counsel were stymied in their efforts to effectively communicate with their clients about their detention, interrogation and torture by the US government, life history, current and past mental statuses, current location of their family, and the whereabouts of any educational, medical, or other records.

    Government violation of the attorney-client privilege and interference with the right to counsel
    The attorney-client privilege is the oldest privilege for confidential communications in the common law. Yet defense attorneys are prevented from bringing written work product to client meetings without revealing the contents to the government, unless they are signed or written by the defense team. Counsel are forced to rely on their memories to discuss complex legal issues.

    Because of the government's ongoing interference with the attorney-client privilege, bin 'Attash had not received written privileged communication from his defense counsel from October 2011 until May 2012, when counsel filed a motion barring invasion of attorney-client communications. This caused "profound damage to the relationship between Mr. bin 'Attash and his counsel."

    In addition, prison authorities established a "privilege team" to screen items prisoners could have in their cells to prevent their possession of "informational contraband"(which is given such a broad definition it could include media reports on efforts to close Guantánamo). But the review team includes intelligence agents, and they need not keep the information confidential.

    Lawyers are forbidden from talking about "historical perspectives or [having] discussions of jihadist activities" or "information about current or former detention personnel" with their clients. Thus, Mohammad's lawyer cannot ask his client why he may have plotted against the United States or who might have tortured him in the CIA black sites. Al Baluchi's attorney is precluded from comparing his client's alleged role in the offense with conspirators in other acts of terrorism who have and have not faced the death penalty. This is a serious interference with the defendant's ability to present a defense.

    Judge Pohl will likely issue new rules regarding attorney-client communications as early as this month.

    Defense right to material in possession of International Committee of the Red Cross (ICRC)
    The ICRC is an independent, neutral and impartial humanitarian organization. The Geneva Conventions contain a mandate for the ICRC to provide protection and assistance to victims of armed conflict and other situations of violence. ICRC's confidential information must be kept confidential. All recipients of ICRC reports, including US authorities, are obligated to protect and abide by ICRC's confidentiality. They are precluded from disclosing any confidential information in judicial or other legal proceedings.

    Since 2002, the ICRC has visited detainees at Guantánamo. The ICRC engages in a confidential dialogue with the government about the conditions of confinement at Guantánamo. It also engages in confidential private interviews with detainees. The ICRC maintains its access, and its status of neutrality, because it guarantees confidentiality. But the ICRC can decide to turn over some of its material at its discretion.

    The defense made a motion to compel the government to produce all correspondence between the ICRC and the Department of Defense regarding the conditions of confinement of the accused, including all ICRC reports, records and memoranda.

    The prosecution argued "somewhat presumptuously" (in the ICRC's words) that it should be able to review all confidential ICRC material to determine what should be provided to the defense.

    There is a tension between the ICRC's insistence on confidentiality, the government's security concerns and the defendants' right to exculpatory evidence under the Due Process Clause. The Supreme Court ruled in Brady v. Maryland that prosecutors must disclose materially exculpatory evidence in the government's possession to the defense. That includes any evidence that goes toward negating a defendant's guilt, that would reduce a defendant's potential sentence, or evidence bearing on the credibility of a witness. Moreover, defense counsel argued that since this is a death case, there should be more favorable procedures for the defense. The prospect of an execution, without full disclosure of mitigating evidence, would shock a foreign government as much, if not more than, the provision of ICRC materials.

    Exclusion of accused during closed pretrial hearings
    Defense counsel objected to the exclusion of their clients during closed pretrial proceedings. The prosecution maintained that defendants must be excluded from hearings in which classified material is discussed. The MCA guarantees the right of the accused to be present at all hearings unless he is disruptive or during deliberations. The defense argued that defendants should be allowed to attend hearings in which classified information is discussed, if the information came from the accused himself. For example, Mohammad's attorney wants his client to be present when they discuss his torture. The government waterboarded Mohammad 183 times at the CIA black site. Hearings were held from which the accused were excluded.

    Motion to prevent force-feeding
    Learned counsel for Hawsawi filed a motion to prevent the government from force-feeding his client, or in the alternative, to be notified in advance and given an opportunity to be heard before any force-feeding is employed. Hawsawi has been participating in the hunger strike at Guantánamo, but has not yet been force-fed. His counsel argued that "Mr. Hawsawi has been peacefully protesting by refusing food, on and off, for months now. Given his slender build and already relatively low body weight, it is entirely plausible that forced feeding is imminent." This motion was not argued at the hearings because the judge found it premature, as Hawsawi is not being force-fed yet.

    Of the 166 detainees remaining at Guantánamo, 104 are participating in the hunger strike, and 44 are being force-fed. The written procedures refer to force-feeding as "re-feeding." Although they contain a few redactions (material blacked out), the pages that describe the procedure for "re-feeding" are totally redacted.

    In 2006, the United Nations Human Rights Commission concluded that the violent force-feeding of detainees at Guantánamo amounted to torture. The Obama administration is also violently force-feeding detainees. The Constitution Project's Task Force on Detainee Treatment found that "improper coercive involuntary feedings" were being undertaken with "physically forced nasogastric tube feedings of detainees who were completely restrained." Boston University Professor George Annas, who co-authored a recent article in The New England Journal of Medicine, characterized the method of force-feeding being used on Democracy NOW!, as a "very violent type of force-feeding." The American Medical Association and the World Medical Association have declared that force-feeding should not be used on a prisoner who is competent to refuse food.

    On May 1, 2013, the Office of the United Nations High Commissioner on Human Rights wrote to the US government:

    It is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.

    Four detainees filed a motion in a Washington DC federal court on June 30 to stop them from being force-fed and force-medicated with Reglan, a drug that can cause severe neurological disorders. Reprieve brought the motion on behalf of Shaker Aamer, Nabil Hadjarab, Ahmed Belbacha and Abu Wa'el Dhiab, all of whom have been cleared for release from Guantanamo.

    Looking ahead
    Trials in these cases will not begin before 2015. President Obama should halt all military commission proceedings and announce that the trials will be held in federal civilian courts, which have shown they are more than capable of prosecuting terrorism cases. As demonstrated in both this piece and the one I wrote about al Nashiri's pretrial hearings, justice is impossible to achieve in military commissions, where guilt is a foregone conclusion.
    No One Knows Everything. Only Together May We Find The Truth JG


  7. #307
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    In Guantánamo 9/11 Pretrial Hearings, Defense Attorneys Protest Obstacles to Effective Counsel

    http://www.aclu.org/blog/national-se...test-obstacles

    By Emma Cox, ACLU at 1:59pm

    You cannot have a meaningful, effective relationship with a client when people who are not within the [attorney–client] privilege stand between you and the client. — David Nevin, defense counsel for Khalid Sheikh Mohammed

    With those words, Mr. Nevin summarized his position and that of the other four defense teams in the pre-trial hearings in the 9/11 military commission held at Guantánamo Bay, Cuba, and observed by the ACLU via delayed feed at Fort Meade, Maryland, between June 17 and 21. The week was dominated by testimony from military officials tasked with overseeing the detention of the military commission defendants at Guantánamo. By week's end, a picture of defense-counsel frustration emerged; in the words of Cheryl Bormann, lawyer for Waleed bin Attash, "The gig was rigged."

    The recent hearings in the 9/11 case were only the latest military commission proceedings, which the ACLU has monitored since they began, to draw attention to the system's many faults. ACLU staff attorney Alex Abdo has helpfully explained the main objections to the commissions, as summarized by Mark Martins, the commissions' chief prosecutor: "the commissions are ‘unsettled,' ‘unfair,' ‘unnecessary,' ‘unknown,' and ‘unbounded.'" Issues have ranged from over-classification and a lack of public access, to a lack of resources for the defense teams. The hearings in June highlighted another problem: the inability of defense counsel to perform their duties due to restrictive, confusing, and inconsistently applied orders regulating their communications with their clients. (You can read about recent revelations of attorney-client surveillance at Guantánamo here.)

    At stake were the barriers the military has erected between defendants and their lawyers, including provisions put in place by Admiral Woods, the former commander of Joint Task Force-Guantánamo, that regulate the flow of information into the detention facility. The defense argued that those provisions both breached attorney-client privilege and banned materials necessary to the defense, making it impossible for defense counsel to do their jobs effectively. In one instance, Ms. Bormann said she had been barred from bringing a copy of The Black Banners, a book by Ali H. Soufan that has a chapter devoted to her client, Waleed bin Attash, to a client meeting at the detention center. She suggested a solution that laid plain the absurdity of some of the rules, asking Admiral Woods if she could send her client a re-typed version of the chapter, signed by her and marked as privileged information. He answered yes because that document would fall under the definition of privileged communications, which can be delivered to the detainees, while the book itself would not.

    Ms. Bormann's example also reveals the narrow range of materials defense counsel have been allowed to share with their clients. According to the language of the controlling orders, the only materials defense counsel can deliver to their clients as privileged materials—meaning, they are supposed to go unread by the government—are documents specifically written by counsel to the defendant. Beyond this restriction, the government also strictly regulates the allowable content of any communications between attorney and client. For example, "contraband" includes information about the defendants' torture while in detention; as defense lawyers argued in commission filings, their clients' "torture during confinement is an important element of their defense, which cannot be competently investigated, documented, or presented in court in the absence of full discussion with them."

    Other points of contention at issue before the military commission in June were the use of "privilege teams" and a so-called "baseline review" to screen material. As part of the baseline review, which was conducted in October 2011, guards took bins out of all detainees' cells—including bins designated for legal materials—and searched them. In order to determine if material was privileged, the guards would have to review it. As the defense argued, that procedure violated attorney–client privilege, which broadly protects that kind of material from being read by third parties. The privilege teams were also set up to screen legal mail. Because government privilege teams' review of communications could also violate attorney–client protections, defense counsel were instructed by the head of their office not to comply with the new monitoring rules.

    These obstacles to effective counsel come in addition to restrictive rules imposed by the commissions themselves—rules that even include the classification of defendants' recollections about their torture by the same government that is trying them. As defense counsel continually reiterated at the last hearings, these military trials are capital cases in which the lives of the defendants are at stake. Particularly when the consequences are so grave, procedures that impede a vigorous defense substantially undermine the fair outcome that criminal trials are intended to achieve. Judge Pohl must now decide whether to issue an order regulating communication with the defendants—an order that would both create rules governing attorney-client communication and define defense counsel's ability to work with clients to mount an effective defense.

    It's important to note that at least a week of testimony and argument was spent on matters that would normally be uncontroversial in our criminal justice system. Both this seemingly ad hoc decision-making process and the interference with adequate representation it was meant to settle are two of the many reasons that the ACLU continues to oppose the United States' use of military commissions to try military detainees and to call for the close of the Guantánamo detention facility.
    No One Knows Everything. Only Together May We Find The Truth JG


  8. #308
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    9/11 suspects to be barred from some court hearings

    http://www.globalpost.com/dispatch/n...court-hearings

    Agence France-PresseJuly 15, 2013 19:01

    A US military judge ruled Monday the five men accused of planning the 9/11 attacks will be barred from attending pre-trial hearings whenever classified information is discussed, lawyers said.

    Defense attorneys condemned the decision, which they said applied mainly to information related to the years the accused were held in secret CIA prisons before they were taken to the US prison at Guantanamo Bay, Cuba in 2006.

    "The military commission has decided that its hearings are so secret that not even the defendants can attend," said James Connell, the civilian lawyer for 9/11 suspect Ammar al-Baluchi.

    "Of course, it is the US government's abuse of the defendants in secret detention which makes the hearings classified in the first place," he said in a statement.

    The military commission's ruling, conveyed by the defense lawyers, had not yet been posted on the tribunal's website.

    The defense attorneys criticized the move as "the latest in a series of military commission decisions favoring secrecy over transparency, including the military commission's ruling that all 'observations and experiences' of the defendants regarding their detention and interrogation are classified."

    US officials have said previously that imposing secrecy on some pre-trial hearings is in line with practice in civilian courts when federal criminal cases touch on classified information.

    The hearings at the US naval base at Guantanamo, which are laying the groundwork for an eventual trial of the alleged 9/11 plotters, often have focused on disputes over secrecy.

    The five suspects, including the self-proclaimed mastermind of the 9/11 plot, Khalid Sheikh Mohammed, face the death penalty if convicted of the murder of nearly 3,000 people on September 11, 2001, in the worst ever attack on US soil.
    No One Knows Everything. Only Together May We Find The Truth JG


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