Key 9/11 Suspect To Be Tried In New York

Khalid Sheik Mohammed, alleged 9/11 mastermind, to get new trial

http://www.washingtonpost.com/world...enalty-trial/2012/04/04/gIQALLHOvS_story.html

By Peter Finn, Wednesday, April 4, 12:29 PM

A senior Pentagon official on Wednesday authorized a new trial for Khalid Sheik Mohammed and four others accused of orchestrating the Sept. 11, 2001, attacks, a step that restarts the most momentous terrorism case likely to be held at Guantanamo Bay, Cuba.

The suspects were first charged in a military commission in 2008, but the case was suspended after the Obama administration came into office and later moved to have them tried in federal court in New York.

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That effort collapsed in the face of congressional and local opposition. In April 2011, Attorney General Eric H. Holder Jr. announced that he was reluctantly sending the case back to the military.

Military charges against the five men were re-sworn in June, and on Wednesday, retired Vice Adm. Bruce MacDonald, the official who oversees the commissions and is known as the Convening Authority, sent the case for trial after reviewing and approving those charges.

The men face multiple charges, including murder in violation of the law of war, attacking civilians, attacking civilian objects, hijacking aircraft and terrorism. If convicted, they could face the death penalty.

Charged along with Mohammed are Ali Abdul Aziz Ali, a Pakistani who is Mohammed’s nephew; Ramzi Binalshibh and Walid bin Attash, both Yemenis; and Mustafa al-Hawsawi, a Saudi. All are accused of playing key organizational or financial roles in the attacks on New York and the Pentagon, a plot that Mohammed has said he masterminded.

In the previous case, Mohammed, Ali and Attash won the right to represent themselves with advisory military and civilian counsel. A military judge was considering whether Binalshibh and Hawsawi were competent to make that choice when the case was suspended.

An arraignment will be held at the military prison at Guantanamo Bay next month, and all of the pretrial issues that surfaced in the earlier case will have to be litigated again, including the issue of self-representation and the mental health and capacity of Binalshibh and Hawsawi.

Each of the defendants is entitled to a military attorney and “learned counsel,” a lawyer with experience in death penalty cases.

At one point in the last case, the defendants said they were interested in pleading guilty to capital charges because they wanted to be executed and die as martyrs. Next month’s arraignment should make clear whether Mohammed wants to fight the charges or is still interested in pleading guilty.

The other defendants have tended to follow his lead.

All five men were held in secret CIA custody at prisons overseas before they were transferred to Guantanamo in September 2006. Their treatment at the hands of the CIA, including the extensive waterboarding of Mohammed, is likely to be an issue at trial.

Under the reformed system of military commissions, prosecutors cannot use as evidence any statement that resulted from torture or cruel, inhumane or degrading treatment. But attorneys for the accused are nonetheless likely to make their treatment a central plank of any defense against the death penalty.

Some civil libertarians remain deeply skeptical of the system.

“The military commissions were set up to achieve easy convictions and hide the reality of torture, not to provide a fair trial,” said Anthony D. Romero, executive director of the ACLU. “Although the rules have been improved, the military commissions continue to violate due process by allowing the use of hearsay and coerced or secret evidence.”

But military officials said that the commissions, which were reformed in 2009 by Congress, offer defendants due process. They also said the use of hearsay or coerced evidence is strictly limited to some unique circumstances on the battlefield and is not a back door for tainted evidence.

“If observers withhold judgment for a time, the system they see will prove itself deserving of public confidence,” Brig. Gen. Mark Martins, the chief military prosecutor at Guantanamo Bay, said in a speech this week at Harvard Law School.
 
Pentagon approves 9/11 death penalty trial
Khalid Sheik Mohammed and four other detainees in Guantánamo Bay will soon be presented with charges, then face a joint trial before a military commission on allegations they orchestrated the worst terror attack in U.S. history.

http://www.miamiherald.com/2012/04/04/2731254/us-says-sept-11-trial-to-resume.html

By CAROL ROSENBERG
[email protected]

The Pentagon on Wednesday cleared the way for a death penalty trial against five Guantánamo Bay captives charged with engineering the Sept. 11 attacks.

Retired Vice Adm. Bruce MacDonald, in charge of military commissions, signed off on the capital trial against alleged mastermind Khalid Sheik Mohammed, 46, and four accused co-conspirators.

The men face charges of terrorism, hijacking aircraft, conspiracy and murder in violation of the law of war, among other charges, in the system set up by President George W. Bush within months of the attack, and then reformed by President Barack Obama in 2009.

If convicted, they could be sentenced to death using a method to be decided by Secretary of Defense Leon Panetta, or his successor.

The charges accuse the five men of organizing the attacks, including funding and training the 19 men who hijacked the four commercial airliners on Sept. 11, 2001, and then crashed them into the World Trade Center, Pentagon and a field in Shanksville, Pa., killing 2,976 people.

The lead trial attorneys are retired Army Col. Robert Swann and federal prosecutor Edward Ryan — the same two men who were designated to prosecute the case by the Bush administration.

Obama halted the previous trial and Attorney General Eric Holder was initially determined to prosecute them in Manhattan, not far from the site of the World Trade Center. But he reversed course a year ago after politicians protested, alternately, that a federal prosecution would put an even large al Qaida bull’s-eye on New York City, would snarl traffic for security concerns or would risk acquittal if a civilian judge or jury concluded that the evidence against them was the fruit of torture.

Pentagon prosecutors have been preparing their case since then.

At the White House, spokesman Jay Carney said the decision to go forward with the trial at Guantanamo did not diminish Obama's desire to close the detention center.

“There have obviously been obstacles in achieving that. But he remains committed to doing that,” said Carney. “In the meantime, we have to ensure that Khalid Sheik Mohammad and others who are accused of these heinous crimes are brought to justice. And a procedure is now underway to ensure that that happens.”

The decision drew a rebuke from the American Civil Liberties Union, which has funded some of the 9/11 defense lawyers.

The Obama Administration “is making a terrible mistake by prosecuting the most important terrorism trials of our time in a second-tier system of justice,” said Anthony Romero, the ACLU executive director. He said the war court was “set up to achieve easy convictions and hide the reality of torture, not to provide a fair trial.”

“Whatever verdict comes out of the Guantánamo military commissions will be tainted by an unfair process and the politics that wrongly pulled these cases from federal courts, which have safely and successfully handled hundreds of terrorism trials.”

All five men were interrogated by the CIA in secret overseas prisons — Mohammed was waterboarded 183 times, according to declassified CIA documents — before their 2006 transfer to Guantánamo for trial. Once in Cuba, he bragged to a panel of U.S. military officers that he was responsible for the Sept. 11 attacks “from A to Z.”

The chief prosecutor, Army Brig. Gen. Mark Martins, has said that by law no evidence derived through torture can be used at a Guantánamo trial.

MacDonald signed the 123-page charge sheet alleging the five men engaged in a years-long conspiracy that trained the 9/11 hijackers in Afghanistan and Pakistan, funded them in wire transfers from Persian Gulf nations and dispatched some of them to the United States from Germany. It will be up to an 11-member team of U.S. prosecutors to prove it to a military jury of a dozen or more members.

But first, the military has to present the charges at the remote prison at the U.S. base in southeast Cuba, assign a judge to the case and give them a formal appearance at the war court compound, Camp Justice, probably in May. Months of pre-trial challenges, including wrangling over defense resources and whether the men are competent to defend themselves, are likely to follow.

The other four men facing the death penalty charges in the joint trial are Walid bin Attash, 33, a Yemeni; Ramzi Bin al Shibh, 39, a Yemeni; Mustafa al Hawsawi, 43, a Saudi; and Ali Abdul Aziz Ali, 34, a Pakistani who is Mohammed’s nephew and also known as Ammar al Baluchi.

The Pentagon’s war court witness advocate, Karen Loftus, sent an email to Sept. 11 families on Wednesday advising them of the case development. Some survivors and victims of the 9/11 attacks will be invited to watch the proceedings at Guantánamo, selected through a lottery. Most will be directed to remote viewing sites being set up in Massachusetts, New York, New Jersey and Maryland that will show closed-circuit broadcasts of the proceedings.

The broadcasts are on a 40-second delay in case someone in court divulges classified information, time enough for an intelligence center to muffle the proceedings behind white noise.

Loftus also described the military jury that will hear the Sept. 11 mass murder trial as “a panel of at least 12 members, whose function is analogous to jurors in a federal or state court. The case was also referred to as a joint trial, meaning that all five of the accused will be tried together, unless the military judge later determines that any or all of the accused should be tried separately.”

A Pentagon-paid defense lawyer for Ali, accused of wiring money to the 9/11 hijackers, has argued his client should not face a capital trial because he isn’t alleged to have killed anyone – or plotted to kill.

“Mr. Ali would not be eligible for the death penalty if this case were tried in federal court,” said attorney James Connell. “This attempt to expand the reach of the death penalty to people who neither killed nor planned to kill is another example of the second-class justice of the military commissions.”

Martins has assigned himself to the 11-lawyer prosecution team, which includes Justice Department lawyers Joanna Baltes, Jeffrey Groharing and Clayton Trivett as deputy trial counsels to Ryan and Swann. Trivett, a lieutenant commander in the Navy Reserves, and Groharing, a lieutenant colonel in the Marines, had also worked on the 9/11 prosecution during the Bush years.
 
US sets charges for 9/11 mastermind, four others

http://www.google.com/hostednews/af...ocId=CNG.2f71a201e9237be400a5cb37ad97710d.101

By Dan De Luce (AFP) – 6 hours ago

WASHINGTON — The United States Wednesday unveiled charges against the self-proclaimed mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and four other alleged plotters, vowing to seek the death penalty in a long-delayed military trial.

Mohammed and the other accused conspirators have been held for years at the US-run prison in Guantanamo Bay, Cuba, amid a legal and political battle over how and where to prosecute them.

"The charges allege that the five accused are responsible for the planning and execution of the attacks of Sept. 11, 2001, in New York and Washington DC, and Shanksville, Pa., resulting in the killing of 2,976 people," the Defense Department said in a statement.

If convicted before a military tribunal, "the five accused could be sentenced to death," it said.

After more than 10 years since the attacks that jolted the American psyche, "it is important to see that justice is done," said White House spokesman Jay Carney.

He also said that President Barack Obama was still committed to making good on his promise to close the prison at Guantanamo, a pledge he had to back away from after legal setbacks and stiff opposition in Congress.

The 46-year-old Mohammed, along with Walid bin Attash of Saudi Arabia, Yemen's Ramzi Binalshibh, Pakistan's Ali Abd al-Aziz Ali -- also known as Ammar al-Baluchi -- and Mustapha Ahmed al-Hawsawi of Saudi Arabia, are due to appear in court for arraignment proceedings within 30 days, the Pentagon said.

The joint trial, which could be months away, will be held at the American naval base in Guantanamo Bay, where the US government has set up special military commissions to try terror suspects.

Mohammed, whom US officials refer to simply as "KSM," has been at the center of a years-long debate over the legal fate of the accused plotters.

After he was captured nine years ago, Mohammed was subject to harsh interrogations and repeated "waterboarding," a simulated drowning technique that has been widely condemned as torture.

His treatment has raised questions whether his statements to interrogators will hold up in a trial, but testimony from a former aide may resolve that problem.

His former deputy, Majid Khan, accepted a plea deal recently with US authorities that will require him to testify against the other suspects.

After taking office in 2009, Obama initially sought to try Mohammed and the four others in a civilian court in New York, not far from the Ground Zero site where the World Trade Center's twin towers fell in 2001.

But the proposal sparked criticism and Republicans in Congress put an end to those plans by blocking the transfer of terrorism suspects to the United States.

Human rights groups have slammed the Guantanamo tribunals as tainted and renewed demands Wednesday that terror suspects be tried in a federal courts by civilian judges.

"The Obama administration is making a terrible mistake by prosecuting the most important terrorism trials of our time in a second-tier system of justice," Anthony Romero, American Civil Liberties Union executive director, said in a statement.

A lawyer for one of the accused said his client, Ali of Pakistan, would not be facing execution if he was being tried in a civilian court.

"Because he did not kill or plan to kill, Mr. Ali would not be eligible for the death penalty if this case were tried in federal court," James Connell said in a statement.

The military tribunals were created under George W. Bush's presidency after the 9/11 attacks, with officials arguing that Al-Qaeda militants fell into a special category that did not suit civilian courts.

Procedures for the military tribunals, also known as commissions, have since been modified by the Obama administration to make them more closely resemble civilian courts.

Mohammed and the other accused plotters were charged once before under the Bush era and, now that the system has been revised, had to be formally charged again to clear the way for a trial.

The five are charged with terrorism, hijacking aircraft, conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, and destruction of property in violation of the law of war.
 
9/11 Snitch Springs U.S. From Torture Trial Trap

http://www.wired.com/dangerroom/2012/04/911-trial-torture/

By Spencer Ackerman
April 9, 2012 |

Alleged 9/11 ringleader Khalid Shaikh Mohammed soon after his March 2003 capture in Pakistan. Photo: Wikimedia

The CIA tortured Khalid Shaikh Mohammed and his fellow alleged 9/11 conspirators, a decision that, for years, jeopardized any prosecution for the deadly terror attacks. But when admitted al-Qaida member Majid Khan accepted a plea bargain at Guantanamo Bay, it practically paved the way for Wednesday’s announcement of a 9/11 trial. Months from now, Khan will take the stand against “KSM” and his co-defendants — and significantly minimize, if not eliminate, the amount of evidence presented in the trial that the government obtained through cruel, inhuman or degrading measures.

According to experts in national security law, it’s a tremendous win for the government. But it comes with a price. Alongside a criminal inquiry into CIA torture that concluded without recommending prosecutions, a 9/11 trial unblemished by torture will mean the U.S. government will face no consequences for employing techniques long repudiated by the civilized world.

It’s largely thanks to Brig. Gen. Mark Martins that there’s even a military commission for the 9/11 defendants at all. Martins, a former official at the Bagram airfield prison in Afghanistan, is the new chief prosecutor for the commissions. Unlike his predecessors, Martins approached his defendants like a criminal prosecutor: he prioritized among them, and offered deals to the smaller fish in exchange for their testimony against the larger ones.

There is no larger fish at Guantanamo Bay than KSM, the architect of the 9/11 plot. And in late February, Martins effectively announced had a viable path to prosecuting KSM: Majid Khan, a Baltimore-educated former associate of KSM also detained at Guantanamo, had agreed to a 19-year prison deal in exchange for testimony against the 9/11 conspirators. Barely a month later, the military announced it would soon put KSM and the other conspirators on trial at Guantanamo.

The two developments are intimately related. “If they have Khan and he can present on the stand under non-coercive circumstances evidence about 9/11 and evidence about the operational aspects of al-Qaida pursuant to 9/11, then the prosecution doesn’t think it has to introduce evidence gained through the torture of KSM, Ramzi bin al-Shibh and the others,” says Karen Greenberg, director of the Center on National Security at Fordham Law School. “Majid Khan’s testimony is not the result of torture. Therefore, you don’t need KSM’s confessions or anything that’s arguably compromised by torture.”

Under the rules of the military commissions — which were written after 9/11 for terrorism trials and have been revised many times — evidence gained through torture is supposed to be inadmissible. KSM was waterboarded 183 times in the first month of his captivity. He and his fellow 9/11 conspirators were held by the CIA for years in secret prisons where the agency used interrogation techniques that included contorting detainees’ bodies in painful conditions, depriving them of sleep and sharply reducing their caloric intakes. Even though KSM confessed to playing a lead role in 9/11 years later, his confession may not be allowed to be used as evidence.

By contrast, the rules of the commissions are congenial to Khan’s testimony. Khan was not party to the 9/11 plot. But military commissions allow greater flexibility to introduce hearsay evidence than civilian courts do.

Much of the prosecutorial strategy depends on how much leeway the military judge provides Martins to use Khan. Khan is not believed to have first-hand knowledge of the 9/11 plot, and interacted with KSM in 2002 about an alleged follow-on attack. But he is believed to have learned much about the plot through KSM. “I dont think he’s a slam dunk,” says Andrea Prasow, the chief terrorism researcher for Human Rights Watch, “but I absolutely believe the plea bargain is a huge win for the government for keeping torture out of the public view.”

Additionally, Khan won’t be sentenced for four years. That means the structure of the deal Martins made with Khan is effectively contingent on how Khan performs on the stand against KSM. “The incentives for Khan are so huge,” Greenberg observes. “There’s no deal until Khan testifies. It all happens in four years. It hangs over his head.”

Before Khan testifies, the military commissions will work out the parameters of his testimony — especially what’s admissible. Pre-trial hearings will begin at Guantanamo by early May at the latest. There, lawyers for the 9/11 defendants will file motions arguing for the inadmissibility of various pieces of evidence, surely to include Khan’s hearsay. These pre-trial hearings typically take months.

Even if the military judge assigned to the 9/11 trial permits the vast majority of Khan’s testimony, the 9/11 lawyers will still endeavor to make the torture of their clients an issue at the trial. The problem, Greenberg says, is that the deck is stacked against them, institutionally.

“Unless the Convening Authority [who runs the commissions] says we won’t allow word torture, the defense will find a way to get it in,” she says. “But the military commission rules give the Convening Authority a lot of leeway to introduce and exclude evidence. Even if he does exclude evidence gained through torture, the fact that the jury is picked by the judge and the commissions’ office of defense works within the prosecutor’s office with half the resources provide ways of stacking the system.”

All that points to an underwhelming conclusion to the bitter, ten-year controversy over torture in the 9/11 Era. Last year, the Justice Department concluded an inquiry into CIA torture without recommending prosecutions in 99 out of 101 cases. If the 9/11 trial proceeds with torture as an afterthought, then the government will have faced no hinderance, consequence or reprisal from the use of a practice most of the world considers barbarous and illegal.

“There hasn’t been a public accounting for torture. There hasn’t been a detailed analysis about what happened and who’s responsible,” says Prasow. “If you don’t know what happened, you can’t make sure it never happens again.”
 
Alleged 9/11 conspirators to be arraigned May 5 in Guantánamo

http://www.miamiherald.com/2012/04/10/2740465/alleged-9-11-conspirators-to-be.html

By Carol Rosenberg
[email protected]
Posted on Tuesday, 04.10.12

ANDREWS AIR FORCE BASE, Md -- The chief war court judge, Army Col. James Pohl, has assigned himself to preside at the death-penalty trial of the five men accused of plotting the Sept. 11 attacks and has set a provisional arraignment date for May 5 at Guantánamo, The Miami Herald has learned.

The rare Saturday hearing would meet a 30-day speedy trial clock deadline under the Military Commissions Act but could be changed if defense lawyers seek a delay.

The war court appearances of alleged mastermind Khalid Sheik Mohammed and four accused co-conspirators would also come within days of the first anniversary of the U.S. Special Forces raid that killed Osama Bin Laden.

Two war court sources, who spoke on condition of anonymity because the judge’s orders have not yet been made public, said Pohl detailed himself to the case Monday. He set the date in a second order the same day.

Pohl is currently the only military judge hearing cases at the Guantánamo war court. He’s at the base in southeast Cuba this week to hear pre-trial arguments in the case of accused USS Cole bomber Abd al Rahim al Nashiri, also facing possible military execution if convicted.

It was not immediately known if Pohl would keep the Cole case or hand it off to another military judge.
 
Court Date Set for Accused 9/11 Plotters

http://www.voanews.com/english/news/usa/Court-Date-Set-for-Accused-911-Plotters-146845685.html

4/10/2012

The chief war court judge at the U.S. Guantanamo Bay naval base has set May 5 as the date for the arraignment of five men accused of plotting the September 11, 2001 attacks on the United States that killed nearly 3,000 people.

The Pentagon said Tuesday that military judge James Pohl set the rare Saturday morning court date to formally accuse the five suspected al-Qaida militants of participation in the 9/11 plot. The defendants' lawyers could ask for a delay.

The defendants include the self-proclaimed mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and four other alleged co-conspirators.

They are accused of terrorism, hijacking aircraft, conspiracy, murder and other charges. If found guilty, they could face the death penalty.

The U.S. military last week formally ordered a military tribunal for the five suspects.

The Pentagon says in addition to their defense counsel, it has provided the five with attorneys with specialized knowledge and experience in death penalty cases in order to assist their defense.

But human rights groups have slammed the use of military tribunals as opposed to civilian courts. President Barack Obama initially had pledged to try the accused in a civilian court, but he reversed course last year after U.S. lawmakers passed restrictions prohibiting the transfer of terror detainees to the United States.

In 2008, Khalid Sheikh Mohammed said he wanted to plead guilty to all charges against him.
 
Accused 9/11 mastermind Khalid Sheikh Mohammed and four accomplices will go to GITMO court May 5, face death for killing 2,976
KSM’s new arraignment comes over a decade since 9/11, and nine years after his capture in Pakistan

http://www.nydailynews.com/new-york...-5-face-death-killing-2-976-article-1.1059268

4/10/2012

WASHINGTON - Al Qaeda big Khalid Sheikh Mohammed and four others will face a military court May 5 on death-penalty charges for killing 2,976 on 9/11, the Pentagon said Tuesday.

Meanwhile European officials ruled that Britain can hand over one-eyed, hook-handed terrorist Abu Hamsa al-Masri to the U.S. plus four more suspects wanted here - two in the 1998 African embassy bombings that killed 224 people.

KSM’s new arraignment comes over a decade since 9/11, and nine years after his capture in Pakistan.

The Kuwaiti last appeared in a Guantanamo Bay Court nearly four years ago, expressing the defendants' wishes to plead guilty on all counts.

Soon thereafter, a newly-elected President Obama scrapped Guantanamo proceedings in favor of a civilian criminal trial in Manhattan federal court.

Pushback from Congress, however, forced a return to the secluded Navy base in Cuba, where the Department of Defense re-charged the five on April 4.

They will be tried together, but arguments may not start for months.

Yemeni 9/11 co-defendant Walid Muhammad Salih Mubarak Bin 'Attash allegedly helped mastermind the 2000 bombing of the USS Cole and trained 9/11 hijackers.

Fellow Yemeni Ramzi Binalshibh sought entry to the U.S. to study aviation, and is therefore suspected of being a potential hijacker. He was denied a visa and wired money to the attackers instead.

Saudi defendant Mustafa Ahmed Adam al Hawsawi allegedly helped hijackers gain entry to the U.S. and then funneled them money, while Pakistani Ali Abdul Aziz Ali paid for flight training, wired the hijackers money and provided other support.

Al-Masri - aka Mustafa Kamel Mustafa - has been jailed in the UK since 2004 for inciting murder in the name of radical Islam. He's wanted here for trying to set up a terror training camp in Oregon around 2000.

In exchange for the extraditions, the U.S. will not subject any of the British prisoners to the death sentence.

The European Court of Human Rights ruled Tuesday that life sentences in a U.S. super-maximum security federal prison like Florence ADX in Colorado would not violate EU rules.

Supermax houses the nation's most notorious terrorists, spies and gangsters, among them Unabomber Ted Kaczynski, FBI snoop Robert Hanssen, and former acting Bonanno crime family boss Vincent Basciano.

Florence inmates spend 23 hours a day in solitary confinement in cells with concrete furniture with tiny windows, denied outside communication.

The EU court said the five "should not be extradited" until its judgment becomes final - a move that could take months - or until a possible appeals process ends.

British prisoner Khalid al-Fawwaz, a Saudi citizen, and Adel Abdul Bary, an Egyptian, are wanted over the 1998 bombings of U.S. embassies in Kenya and Tanzania.

Syed Talha Ahsan has been charged with conspiring to support terrorists via the Internet, while Babar Ahmad is accused of running websites to raise money, appeal for fighters and provide equipment - like gas masks and night vision goggles - for terrorists.

Conflicting reports have al-Masri losing his hand and eye either diving on a landmine in Afghanistan or bungling an attempt to build a bomb.
 
Absurd lengths
OUR OPINION: It’s ridiculous for Pentagon to try to shield testimony at Guantánamo that’s already in public domain

http://www.miamiherald.com/2012/04/09/2739703/absurd-lengths.html

By The Miami Herald Editorial
[email protected]

The Pentagon has long claimed that it can infringe on the public’s right to know what takes place at the island prison in Guantánamo Bay, Cuba, under the guise of protecting national security. Now it’s going to absurd lengths to justify a secret hearing involving a Saudi captive’s account of how CIA agents interrogated him while shackled in custody.

The government has played the national security card repeatedly for more than 10 years, relying on post-9/11 paranoia and fear of terrorism to win public support for the kind of odious policies that have no place in a democracy. Secret interrogations, secret custody, secret jails. Even the Red Cross was kept in the dark at one time about who was in captivity, and where — a violation of fundamental Geneva Conventions rules. Basic rights of fair trial have been denied. We as a nation used to condemn the Soviet Union for these sorts of practices, and still condemn Cuba and other dictatorships for violating commonly recognized standards of justice. Yet it happens at Guantánamo.

Thanks to the public outcry and persistent challenges by civil liberties advocates and some news organizations, progress has been made on a few fronts. The secret overseas jails are gone, or so the government has said, and reporters have gained limited access at Guantánamo. But old habits die hard and the Pentagon is at it once again at the upcoming hearing for Abd al Rahim al Nashiri.

Nashiri is accused of orchestrating al Qaida’s suicide bombing of a U.S. Navy warship, the USS Cole, off Yemen in October 2000. Seventeen U.S. sailors were killed in the attack, and the Pentagon war court prosecutor is pursuing this case as its first death-penalty trial. In a bid to win a court order that he be unshackled during prison camp meetings with his attorneys, defense lawyers want to call him as a witness to describe the trauma of his CIA interrogations.

To be clear, the issue is not whether he should be shackled during his trial, but rather when meeting with his own attorneys. That’s what a hearing scheduled for this week is about, but Col. James L. Pohl, a military judge, has ordered a blanket closure of the entire hearing because it touches on what lawyers claim is his treatment under interrogation prior to incarceration at Guantánamo.

The Miami Herald and a wide range of news organizations, including Fox News and The Washington Post, have rightly objected. In the first place, there’s that pesky thing called the First Amendment that protects public access to the proceedings, particularly in a case that commands worldwide attention and raises significant issues.

Beyond that, it’s ridiculous to shield the public from testimony covering information already in the public domain. Declassified abuse investigations show that, while Nashiri was shackled, CIA agents waterboarded him, racked a semi-automatic handgun near his head and used a power drill to frighten him in 2002 and 2003.

What’s left to hide? The list of published accounts detailing Nashiri’s detention with the CIA covers five pages of a pleading submitted by defense attorneys to the court. The filing also points out that the court’s own media rules explicitly forbid exclusion of information that has already been publicly disclosed.

Besides, if any information that remains classified should emerge, it can easily be kept from reporters, who sit in a separate, soundproof room and hear information only after a 40-second delay. Just hitting a button can keep the secret material from being heard by reporters. The court’s own guidelines require using the least intrusive rules to keep information secret, which would seem to rule out a blanket closure.

There’s no legitimate reason to keep these proceedings a secret.
 
Reporting from Guantánamo: Leaving the Constitution on the Mainland

http://www.aclu.org/blog/national-s...ting-guantanamo-leaving-constitution-mainland

Posted by Anna Arceneaux, Capital Punishment Project at 4:15pm

This week I am in Guantánamo Bay observing a hearing in the case of Abd al-Rahim Hussayn Muhammad al-Nashiri (pronounced al-NAH-shiri), the first death penalty case to be tried by military commission. Mr. al-Nashiri faces charges for his alleged participation in the attack on the destroyer USS Cole over 11 years ago. Apprehended in 2002, he was held by the CIA for four years in secret before his transfer to military custody. U.S. officials brutally tortured Mr. al-Nashiri: he was waterboarded, and threatened with a power drill and handgun next to his head. Sadly, this week's pretrial hearing in his case continues to erode the commission's purported commitment to fairness, transparency, and justice and instead affirms a commitment to Guantánamo's shameful legacy of injustice.

Yesterday, Mr. al-Nashiri's defense team argued motions challenging the jurisdiction of the military commissions and the constitutionality of the Military Commissions Act of 2009 that created this iteration of them. Among the challenges: the act singles out noncitizens for prosecution, which is a violation of the Equal Protection Clause. An American citizen who committed the very same or even worse crimes violating the law of war or threatening national security would be tried in federal court. Chief Prosecutor for the military commissions Brig. Gen. Mark Martins circularly maintained that trial in a military commission was appropriate despite this inequality because of the acts al-Nashiri has committed. Nevermind the presumption of innocence.

Judge James Pohl asked the government whether constitutional rights even applied to Mr. Al-Nashiri and other Guantánamo detainees. Gen. Martins said, unequivocally, "no." His answer, reiterated several times, that Mr. al-Nashiri was not entitled to constitutional protections seemed to confirm that the commissions are set up not for fairness but to guarantee convictions through looser substantive and procedural rules than the Constitution requires.

Mr. al-Nashiri is not the first to be tried in this latest iteration of military commissions, but he is the first defendant in this new version of commissions against whom the government is seeking the death penalty. (There were six capital trials pending in 2008 when President Obama was elected: Mr. Al-Nahshiri and the five 9/11 defendants. Those cases were put on hold and ultimately dismissed after his inauguration, but like Mr. al-Nashiri, the 9/11 defendants have now been charged once more. They will be arraigned on May 5.)

Federal constitutional law has long recognized that death penalty cases are different. When the government seeks the ultimate punishment against a criminal defendant, a court must take extraordinary protections to guard against error. As a staff attorney with the ACLU's Capital Punishment Project, I represent defendants charged with serious, tragic crimes and facing the death penalty in courts across the country. I am no stranger to challenging courtroom environments and public hostility towards my clients. But when I walk into a courtroom, I know that if nothing else, I am armed with the Constitution. The Constitution guarantees that my clients have the right to due process, to be tried by an impartial jury, to confront the witnesses against them, to a speedy trial, and to a reliable capital sentencing proceeding. Most importantly in the case of indigent clients – the only ones the ACLU's CPP represents – defendants are entitled to be equipped with the resources necessary to defend against a death sentence, and to ask for those resources in an ex parte proceeding (in other words, without the prosecution present), so as not to tip off the prosecution about defense strategy. If these rights are not honored at the trial court, I know that my client will be able to challenge constitutional errors on appeal. At the military commission, we seem to have left the Constitution on the mainland.

This week's hearing was also expected to test the circumstances under which military commissions will be held in closed session. Of course, already the sessions are far from open. The few observers granted permission by the government to attend the proceedings in Guantánamo view the courtroom from an adjacent room through soundproof glass. We hear the proceedings via an audio feed with a 40-second delay. The government has deemed any utterance from a defendant presumptively classified, in order to censor damning evidence of torture and brutal interrogation methods. In fact, "classified" has been specifically defined to include any words about past torture or present conditions of confinement at Guantánamo. So, if evidence the government wants to keep from the public comes up, a red light goes off and suspends the audio feed for the observers. This is despite the fact that information about torture in CIA custody is already public, and techniques like waterboarding have been admitted by the government.

Mr. al-Nashiri was set to testify yesterday in support of a defense motion challenging his shackling during legal visits. The motion argued that shackling Mr. al-Nashiri during these meetings retraumatizes him, reminding him of the torture he endured at the hands of the CIA. Retraumatization prevents effective attorney-client communication – a critical factor in any case, but even more so in when someone is facing the death penalty, where defense lawyers must ask about sensitive and highly personal evidence that is essential to their representation of a client and may save the client's life.

In anticipation of Mr. al-Nashiri's testimony, the judge heard arguments from counsel about the procedure for closing the courtroom, and in a first for a military commission, the judge allowed a lawyer present on behalf of 10 media companies to argue for openness in the proceedings. Ultimately, the judge dodged the issue by ruling that Mr. al-Nashiri should not be shackled when he meets with his legal team. But the issue of open hearings regarding torture and abuse will undoubtedly surface again soon, in Mr. al-Nashiri's case or in the upcoming military commission proceedings against the five alleged 9/11 perpetrators, over which Judge Pohl will also preside. Torture and abuse should not be covered up, and an important test of these commissions' transparency and fairness will be whether the government is able to censor and keep from the public the torture to which the 9/11 defendants were subjected.

The government is risking the integrity of the possible convictions and death sentences against Mr. al-Nashiri and the five men accused of participating in the 9/11 attacks with this untested and unfair system of justice, where the Constitution may not apply and where the proceedings may be conducted in secret. Our federal courts are well-equipped to handle these cases: the federal government has successfully prosecuted hundreds of terrorism cases in federal court since 9/11, without having to decide novel legal issues at every step and without abandoning the Constitution. In Guantánamo, we are using a second-class system of justice for the most important capital trials in our country's history. Already we are alone among Western nations in our heavy use of capital punishment. Must we also leave our Constitution behind?
 
Guantanamo Judge Avoids Ruling On ‘Torture’ Testimony

http://tpmmuckraker.talkingpointsme...ial_al-nashiri_wouldnt_testify_on_torture.php

Ryan J. Reilly April 11, 2012, 7:57 PM

GUANTANAMO BAY, CUBA — Abd al-Rahim al-Nashiri was tortured by the United States of America. His lawyers say so. The U.S. government has said so. But whether or not members of the press and the public could hear him testify about his torture — from an adjacent room through three panes of glass — and listen — on a 45-second delay — was a matter of debate at Guantanamo Bay’s Camp Justice facility on Wednesday.

Al-Nashiri — the man the government alleges planned the attack on the USS Cole that killed 17 sailors and injured dozens in October 2000 — walked into a white-walled courtroom surrounded by several layers of barbed wire fences for the first day of pre-trial hearings on the legitimacy and logistics of his military commission trial. The administration announced they would restart military commissions last March, and al-Nashiri’s case could be the first to head to trial later this year.

The biggest open question ahead of Wednesday’s session was whether al-Nashiri — clean shaven and wearing all white — would get to testify about his torture in court, and whether that testimony could be made public. The answer? Not today.

Judge Col. James L. Pohl avoiding ruling on the question of whether al-Nashiri would testify, instead making his testimony moot by ruling on behalf of his lawyer’s request to leave him unshackled when they meet with their client.

The question of shackling is key because the 47-year-old Saudi’s defense attorneys say it reminds him of how he was constrained when being held in a CIA “black site.”

As recounted in a 2004 CIA Inspector General report, a debriefer “entered the cell where Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri’s head” and “entered the detainee’s cell and revved the drill while the detainee stood naked and hooded” shortly after al-Nashiri was first taken into custody in 2002. Al-Nashiri was transferred from an overseas CIA “black site” to the Guantanamo Bay facility in 2006.

Lawyers for al-Nashiri wrote in a motion last month that they anticipated that it might be “necessary and appropriate for the accused to show counsel how events occurred.” They said they might take a “psychodramatic approach” to the testimony that would allow lawyers to “access the experiences of others — to see things as they saw them and to feel it as they felt it — in other words, to truly empathize.”

The prospect of testimony from al-Nashiri — and the likelihood that such a hearing would be conducted in a closed session — is what led 10 media companies to send First Amendment lawyer David Schultz down to Guantanamo to argue for the court to be open during the testimony.

This was Schultz’s first trip to Guantanamo and his testimony marked the first known time that a military commission has heard an argument from a non-party.

“We did establish an important precedent — that the pubic and the press have the right to be heard,” Schultz told TPM after the hearing.

Schultz mentioned publicly available information about the government’s treatment of al-Nashiri in court — the use of waterboarding, a drill and a gun — and said it would be “impossible” to reach a conclusion that national security concerns should prevent the public from hearing “information that the whole world knows or can find in two seconds on the Internet.”

“You’re always going to have some people who think this thing is a sham,” Schultz told TPM. “But the general public can only have confidence in the judgments if the system itself is open.”

The legitimacy of the forum itself was the subject of a separate series of arguments by al-Nashiri lawyer Michel Paradis.

“The intent and purpose of the Military Commissions Act was to deny equal justice,” Paradis argued. He argued that the system of justice an individual is placed into — military or civilian — should not be decided “simply by accident of where they were born” and that Congress set up the military tribunal system for “political self interest and political self interest alone.”

“Separate is not equal. We do not segregate in the United States anymore, we fought long and hard for that,” Paradis said. At one point, he argued that decisions about trying defendants in either military or civilian court would “at a certain point” become “outright forum shopping.”

The prosecution argued that Congress had a “very rational and legitimate reason” for setting up two judicial systems.

Judge Pohl seemed inclined to defer to previous decisions about the legitimacy of military tribunals made by higher courts. But Paradisl argued that the fact that the death penalty was in play in this case made it different from previous decisions.

Preliminary hearings in the al-Nashiri case continue on Thursday, though it’s not clear if al-Nashiri will be in attendance.

Defense lawyers asked the judge to order that Guantanamo officials don’t forcibly extract al-Nashiri from his cell if he indicates he doesn’t wish to attend.
 
Prosecutor Says Reformed Guantanamo Trials Ensure Justice

http://www.defense.gov/news/newsarticle.aspx?id=67919

(Gold9472: Crapaganda.)

By Jim Garamone
American Forces Press Service

FORT MEADE, Md., April 12, 2012 – The chief prosecutor at Guantanamo Bay, Cuba took exception with defense lawyers’ characterizations of proceedings on the base as being done without the protections of the U.S. Constitution.

Army Brig. Gen. Mark Martins told a small news conference at the base that the reformed military commissions provide the protections of the U.S. Constitution and will follow the procedures of U.S. federal courts and military courts martials.

“All officials in the federal government have an obligation within their areas of responsibility to help fulfill these requirements, which are among the fundamental guarantees of fairness and justice demanded by our values,” Martins said.

Martins spoke at the conclusion of a hearing on motions made for the trial of alleged Cole bombing mastermind Abd al-Rahim Hussein Mohammed Abdu al-Nashiri. The bombing killed 17 U.S. sailors and wounded 39 in Aden, Yemen in October 2000. Al-Nashiri is charged with capital crimes and could be put to death if found guilty. This tinges every decision the commission makes.

Defense motions questioned the prosecution on constitutional grounds, including that the charges violate the equal protection clause, that it was charging him under an ex post facto law, and that it was a bill of attainder. Trial judge Army Col. James Pohl denied all. He further denied a request for all documents given to the defense team be translated into Arabic. There are more than 70,000 pages to date.

The judge granted more time for the defense to present him with a theory of the case, their request for a Yemeni investigator, letters asking for Yemeni evidence and a motion asking for the amount of money and resources the government has expended on this prosecution.

Martins said the scene in the Guantanamo Bay courtroom proved the adversarial nature of American jurisprudence was alive and healthy in the reformed military commissions program.

“Contrary to dark suggestions of some whose minds appear already made up to oppose military commissions regardless of how they are conducted, these protections are implemented by officers, I submit, are worthy of the public trust,” Martins said.

In the news conference, Martins listed the rights Al-Nashiri has. The defendant is innocent until proven guilty. He has the right to present evidence, the right to cross-examine witnesses and compel the appearance of witnesses in his defense. The U.S. government has provided more than $100,000 to fund defense requests, which include a full time investigator, a translator and four lawyers – two military and two civilian.

The al-Nashiri prosecution is complicated, the general said. It is further complicated because the crime was 12 years ago, and in another country. Federal trials have stretched years in similar situations, he said.

“Those who state or imply that what you are seeing here would not happen in the federal systems are simply wrong,” the general said.

The trials at Guantanamo, while few, are important to the United States and to justice, and are worth every penny invested in them, he said.

“Not only must we continue to pursue the truth for the victims of these bombings, but we must also pursue it because that is what justice requires,” he said. “A civilized and open society facing very real and modern security threats can demand no less.”
 
A military trial for alleged 9/11 terrorists is unlikely to lead to justice
Bureaucratic and legal bungles – and torture – have undermined any prospect of a fair trial for the five key Guantánamo detainees

http://www.guardian.co.uk/commentis...y-trial-alleged-9-11-terrorists?newsfeed=true

Nick Fielding
guardian.co.uk, Friday 13 April 2012 06.33 EDT

After almost 10 years of incarceration, US officials have announced that five of the most important prisoners left in Guantánamo Bay are finally to go on trial in a capital military tribunal where, if found guilty, they are likely to be executed.

By far the most important prisoner is Khalid Sheikh Mohammed – known as KSM – who together with his co-accused Ramzi bin al-Shibh, is widely recognised as the mastermind behind the planning of the 9/11 attacks on America. The others are KSM's nephew Ali Abdul Aziz Ali, Walid bin Attash and Mustafa Ahmed al-Hawsawi. All five men were arrested in Pakistan in 2002 and 2003.

The military tribunal is the latest development in an extraordinarily convoluted and distorted legal saga that has already damaged the prospects of a fair trial for any of the accused. All of these men have been held in secret CIA "black sites" around the world, for months or years on end. KSM, who was captured in March 2003 at the home of a Pakistani military officer in the heart of a military camp in Rawalpindi, was waterboarded 183 times during the almost three-and-a-half years he spent in this maze of secret prisons. Waterboarding is an extreme form of torture which, although it leaves no physical marks, makes the victim believe he is about to drown. Only in September 2006 did KSM arrive at Guantánamo Bay.

Not surprisingly, he revealed a wealth of information about the way in which the 9/11 attacks were organised, as well as his role in numerous other attacks and plots. In fact, as he first told the Red Cross in October 2006, he provided the information that his interrogators wanted to hear in order to stop the torture.

At his first combatant status review tribunal in 2007 he admitted to an extraordinary catalogue of terrorist attacks, many of which he was responsible for, others merely vague ideas. Those admissions included responsibility for the 9/11 operation "from A to Z", the 1993 World Trade Centre bombing, the decapitation of journalist Daniel Pearl, recruiting shoe bomber Richard Reid, the Bali nightclub bombing, a plot to bomb and destroy the Panama Canal, plans to assassinate former US president Jimmy Carter, Pope John Paul II, Bill Clinton and Pervez Musharraf of Pakistan, plots to blow up the Brooklyn Bridge, the Sears Tower in Chicago, Heathrow airport, Big Ben, the New York Stock Exchange, various nuclear power plants, Nato headquarters in Brussels and numerous other targets, both real and imagined. It was one of the most comprehensive confessions of all time.

In February 2008 the US Department of Defence announced that charges had been sworn against six detainees at Guantánamo – the same group who were charged a few days ago, plus an Arab who had been sent to join the 9/11 hijackers, but who had been refused entry to the US. The military trial actually began in June 2008, witnessed by 35 journalists in an adjoining room who heard KSM decline legal representation for what was looking increasingly like a show trial.

The proceedings dragged on until December 2008 when, in an unexpected move, all the accused told the military judge they wished to plead guilty. Three months later they issued a response to the nine-main charges against them, dismissing most of the allegations and attempting to justify their actions. They all signed the document as the "9/11 Shura Council". Soon after, the military trial was abandoned.

As these chaotic bureaucratic and legal bungles further undermined any prospect of a fair trial, KSM took the opportunity to refresh his image. He now sought to portray himself as a martyr to justice. Despite his incarceration in Guantánamo, two new photos of him have appeared, released to his family by the Red Cross. Instead of the image of the scruffy-looking man in white pyjamas taken when he was being arrested, the new images show a smiling man with a great bushy beard, looking more like a guru than a mass murderer. KSM, it seemed, was flourishing.

The next event was yet another disaster for American justice. In November 2009, following pressure from the new Obama administration, it was announced that all five men would be transferred to a prison in New York to be tried in a civilian court. At last it looked as if justice would prevail. But it was not to be. Despite the efforts of the new president, a majority of members of the US Congress were determined that none of the Guantánamo prisoners should have a civil trial on American soil. In January 2011, in a humiliating act, President Obama was forced to sign the National Defence Authorisation Act (NDAA), prohibiting the use of government funds to transfer detainees from Guantánamo to the US mainland.

In April last year, a clearly angry US attorney general, Eric Holder , finally announced that once again, the men were to be tried by a military commission at Guantánamo. Now that trial is about to start. After claims of torture, rendition, confession, aborted military commission and civilian trial, can anyone expect that justice will be served?
 
Guantanamo Prepares For Media Storm At Trial Of KSM, 9/11 Conspirators

http://tpmmuckraker.talkingpointsmemo.com/2012/04/guantanamo_ksm_911_trial.php

Ryan J. Reilly April 16, 2012, 3:50 PM

GUANTANAMO BAY, CUBA — Pentagon officials preparing for next month’s arraignment of Khalid Sheikh Mohammed and four other accused terrorists charged with plotting the attacks of Sept. 11, 2001, are expecting about 600 journalists to apply for the 60 spaces available for members of the media at Guantanamo Bay’s Camp Justice.

The military has not yet begun accepting credentials requests for the KSM arraignment, which is scheduled to begin on May 5, but one Pentagon public affairs official already received 100 inquires from press.

Last week’s pre-trial hearings for Abd al-Rahim al-Nashiri, the Saudi Arabian man accused of plotting the 2000 attack on the USS Cole, served as a sort of dry run for Guantanamo’s media operation, though the five reporters who attended represented just 1/12th of the 60-person capacity.

This wouldn’t be the first time that KSM and his alleged co-conspirators were arraigned at Guantanamo Bay. Back in the summer of 2008, KSM appeared in court for an initial hearing alongside Ramzi Bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi. Later Attorney General Eric Holder announced that the KSM case would be transferred to federal court before reversing his decision last year following intense opposition from the public and members of Congress. The Pentagon announced the May 5 arraignment as reporters headed to Guantanamo for the al-Nashiri trial were on the tarmac last Tuesday morning.

Having so many reporters at Camp Justice for the KSM trial gives the public affairs staff less flexibility and will likely limit the time reporters get to spend away from their desks at Camp Justice’s tent camp. Officials say they’re limited by the number of vans and personnel available to escort media around the rest of the base, as media can’t leave Camp Justice on their own. It could mean fewer trips to O’Kelly’s, the naval base’s Irish pub frequented by defense lawyers and military prosecutors, and more ordering in from Guantanamo’s Subway sandwich shop. It might make spur-of-the-moment trips to NEX Navy Exchange — the closest thing Guantanamo has to a WalMart — a bit less likely.

Military officials say they’re doing all they can to prepare. An eight-person public affairs detachment from Washington state arrived at Guantanamo a week before reporters so they had some experience handling media before the KSM trial gets underway. They and another public affairs unit are supplementing Guantanamo’s regular 16-person public affairs staff.

“We had specifically asked for these guys to arrive before this hearing so that they had some experience before we went into KSM,” Navy Commander Tamsen A. Reese, director of public affairs for Joint Task Force Guantanamo told TPM in an interview at a picnic table in the former airplane hanger that serves as GTMO’s media operations center.

Reese has been in the position for 18 months (a 12-month deployment is typical) and will soon hand over operations to Navy Captain Robert T. Durand. He held the same position from 2006 to 2007 and had to handle a variety of events that brought harsher scrutiny on Guantanamo Bay including prisoner hunger strikes and suicides. He said he jumped at the chance to return.

Members of the media who make the trek down to Guantanamo for the KSM trial will also have to figure out who gets one of 10 available seats in courtroom’s small viewing area.

“We look to the media to decide amongst themselves who’s going in. Our hope is that the media can sort of figure it out on their own,” says Reese. “It’s interesting, because in my experience, media who haven’t been here before will want to go into the courtroom at least one time, but the ability to watch on closed circuit television and be able to have their computer and write their stories or communicate via email with their editors or producers gives the journalists more flexibility than if they are sitting in the courtroom alone. But different folks look at it differently.”

Janet Hamlin, a courtroom sketch artist who covered the previous KSM court appearance, is hoping for a few changes this time around. Since the view from the small viewing room for the press only allows observers a distant profile view of the defendants, she’s requested to either be placed in the courtroom or have access to all of the video feeds so she can get a good view of all the defendants.

“I’m not going to hold my breath,” Hamlin told TPM. “The most likely scenario is that I’ll have access to the monitors,” adding that the edited stream only offered “glancing views” of the suspects. But she’s not entirely sure if KSM will get to request modifications to his court sketch this time around (he said his nose was too big in Hamlin’s original drawing).

“I’m assuming [the lawyers] still have the power to ask me to modify,” Hamlin said.

Another major change since the last time KSM was arraigned is the addition of a remote location within the U.S. where press can observe the closed circuit feed. The Pentagon expects the ability for the press to watch the feed from Fort Meade in Maryland might accomodate some reporters who would otherwise want to fly to Guantanamo in person. Victims of the attacks and their families will also be able to watch remotely from Fort Meade and from a location in New York.

“The ability to have the remote sites in Fort Meade and elsewhere is really going to help allow the media to cover it, allow victim family members to watch,” Durand told TPM. “It will enhance the transparency of the operation, but it will take some of the logistics pressure off the people here, but still available to those who want to make the trip.”

Still, reporters who regularly cover Guantanamo think the increased media interest might be overwhelming.

“It’s going to be very hard,” Miami Herald reporter Carol Rosenberg told TPM on the flight back from the base.

“People who usually come to Guantanamo are foreign reporters who have no idea what it’s like, or a small band of reporters who’ve been pretty much — I don’t want to say broken down, what’s the word I’m looking for — pretty much exhausted by the experience,” said Rosenberg, a seasoned Guantanamo Bay reporter.

“What the 9/11 thing will do is bring a lot of fresh faces and big egos and I don’t know how the military is going to be able to manage it,” Rosenberg said.

Pentagon officials insist everyone will be treated the same way.

“I don’t care if you write for Highlights magazine, Cat Fancy or the National Journal. Once you’re approved for travel, everyone gets treated equally,” Army Lt. Col. Todd Breasseale, a public affairs officer, told TPM. “There will be no special players.”
 
Reporting from Guantánamo: "Trust Us"

http://www.aclu.org/blog/national-security/reporting-guantanamo-trust-us

Posted by Anna Arceneaux, Staff Attorney, Capital Punishment Project at 5:08pm

This week, I've been in Guantánamo Bay observing a hearing in the first capital case before this latest iteration of military commissions, that of Abd al-Rahim Hussayn Muhammad al-Nashiri. As the hearing has progressed over the last few days, a recurring theme has surfaced: the military commission system will not provide basic legal protections inherent in every other American courtroom. But, the prosecution says, in essence, not to worry: even with these protections swept aside, you can trust us to do the right thing. As I wrote yesterday, the prosecution — and perhaps the judge — does not believe the Constitution applies to Guantánamo prisoners. Chief Prosecutor Brig. Gen. Mark Martins emphasized in a press conference yesterday that the Guantánamo military commissions will be held consistent with our country's values — but apparently just not our constitutional values. In court, Judge James Pohl similarly seems to follow a loose notion of "fundamental fairness" but has so far refused to ground that notion in constitutional law. But trust us.

Gen. Martins has been giving speeches across the country insisting that the military commission system is fair, transparent, and independent. Saying it is so does not make it true, and what I have observed this week is a system that is far from fair, transparent and independent. And if the proceedings truly embodied such principles, surely such a public relations campaign would hardly be necessary.

Yesterday's proceedings involved questions about discovery — whether the defense should be allowed to see evidence in the government's possession regarding Mr. al-Nashiri — and the resources that would be provided to his defense team. Under the commissions' rules, once a judge decides the government can withhold classified evidence from the defense, the defense can never ask the judge to reconsider his decision, no matter what comes out as the case progresses. Mr. al-Nashiri's defense lawyers argued that such a scheme was unconstitutional; it is unique to the military commissions because the Classified Information Procedures Act, the law that governs the use of classified information in federal courts, does not contain this prohibition. In fact, the federal judge in the Scooter Libby trial allowed reconsideration of just such a decision. Judge Pohl was unwilling to reject the unfair rules as unconstitutional, but offered an ad-hoc workaround that relies not on rules or procedure, but entirely on his discretion. Under his scheme, the defense will not be allowed to ask the judge to reconsider his ruling. Rather, Judge Pohl will allow the defense to file — at a later date — an amended theory of how it will defend Mr. Al-Nashiri's case and thus make the argument that the previously withheld evidence is necessary to the defense. At that point, the judge could decide on his own whether he should reconsider his prior ruling. Trust us.

The court then turned to the defense's funding requests. In the military commissions system, defense counsel must seek resources to prepare its defense through the Convening Authority — a political appointee nominated by the Secretary of Defense to be the final word on charges, select a chief judge (Judge Pohl), appoint the chief prosecutor and hand-pick the jury pool. The defense requested resources to have the evidence given to it by the government — or at least portions of it — translated into Arabic for Mr. al-Nashiri, who cannot read English. The Convening Authority denied the request. When the defense asked Judge Pohl to order the translation services yesterday, he also denied it, saying Mr. Al-Nashiri had no right to read the evidence against him. In other words, Mr. al-Nashiri is not entitled to the translation of evidence that the government may use to take his life.

The defense also sought funds from the Convening Authority for an investigator to travel to Yemen — where the bombing of the USS Cole took place. The Convening Authority denied that request too. The defense took it up with the judge. Though none of the defense lawyers speak Arabic or are able to travel freely to Yemen, the prosecution also opposed the funding for the investigator and even questioned the qualifications of the investigator the defense has chosen. Given that the government has been investigating the alleged offense and Mr. al-Nashiri for over 11 years, with multiple agencies and the military at its disposal, its opposition to funding for the defense to send a temporary investigator to Yemen was outrageous.

As a capital defense attorney with the ACLU's Capital Punishment Project, regularly representing indigent defendants facing the death penalty in courts across the country, I know that such opposition would never be permitted in federal or state courts. The United States Supreme Court recognized long ago that an indigent defendant has a constitutional right to seek resources for his defense before the judge alone, without the prosecution weighing in. To have it otherwise would reveal defense strategy and give the prosecution an unfair advantage. The government, of course, never has to ask permission from the judge when it needs resources — and the defense would never have an opportunity to question the government's investigative decisions. Nor is the government restricted in the resources at its disposal. As Gen. Martins admitted yesterday at a press conference following the hearing, even in tough fiscal times, the budget for Guantánamo prosecutors is virtually unlimited. And there is little doubt that the U.S. government spent whatever it needed to spend to investigate the bombing of the USS Cole.

Fortunately, despite the government's opposition, the judge agreed that such an investigator was necessary. However, under military commissions' rules, the Convening Authority, who actually cuts the checks, is not bound by the judge's ruling. So, it is still far from clear whether the defense will actually get to hire the investigator. But, trust us.

This has been my first trip to Guantánamo, but in talking to other legal observers, members of the press, and Office of Military Commission personnel, many changes are underway here, as the base prepares for commission proceedings to come — not only in Mr. al-Nashiri's case but in the case against the alleged 9/11 perpetrators. Over 100 people connected to the Guantánamo commissions flew down with us early this week for Mr. al-Nashiri's proceeding alone. In anticipation of the 9/11 proceedings, the base is making efforts to make its visitors more "comfortable." But let's be clear: from a legal and fairness perspective, there is nothing comfortable about the military commission system at Guantánamo.

We should place our trust in an independent, open, and fair system, grounded in the Constitution — like our federal courts. Trusting political — or simply fallible human — players to "do the right thing" is an experiment that history has repeatedly rejected.
 
No real justice in Guantanamo
Trying accused terrorists before military commissions won't meet international standards.

http://www.latimes.com/news/opinion...y-guantanamo-torture-20120419,0,2098341.story

By Reed Brody
April 19, 2012

Abd al Rahim al Nashiri, wearing white prison clothes, seemed by turns amused and bewildered as he sat in a bright room last week during a pretrial hearing at the U.S. naval base at Guantanamo Bay, Cuba.

Nashiri is charged with being a key organizer of Al Qaeda's attack on the U.S. destroyer Cole on Oct. 12, 2000, off the coast of Yemen, which killed 17 U.S. servicemen, as well as of two other attacks. He faces the death penalty if convicted in a trial before a military commission that is scheduled to begin in November.

The Nashiri case is seen as a dry run for the trial of Khalid Shaikh Mohammed and four other alleged planners of the Sept. 11 attacks, who will be arraigned in Guantanamo on May 5. But it is also important in its own right. He is accused of dreadful crimes, but even if he is found guilty, his execution would be a deeply disturbing end to a long ordeal of abuse in an archipelago of secret U.S. prisons around the world.

Nashiri was captured in Dubai in October 2002 and secretly transferred to CIA custody. He was reportedly first taken to a secret CIA prison in Afghanistan known as the "Salt Pit," then to another secret jail in Bangkok, Thailand.

A report by the CIA's inspector general details a range of abuses to which Nashiri was subjected, including waterboarding. He was sent on to Poland, where he was, according to the report, threatened with a power drill revved near his head while he was hooded but otherwise naked. His captors also cocked a semiautomatic handgun close to his head as he sat shackled, held him in "standing stress positions" and threatened to sexually abuse his mother in front of him.

In 2003, he was flown out of Poland, presumably to other secret CIA jails. It was not until September 2006 that the United States government acknowledged his secret detention and that he was at that time being held in Guantanamo.

Last week's hearing, which I attended, dealt with, among other things, Nashiri's request that his feet be unshackled during meetings with his attorneys. A select number of observers from nongovernmental organizations were permitted to watch from behind a soundproof glass wall at the back of the courtroom. A video and audio feed was piped in on a 40-second delay — enough time to censor any classified information that came up.

Nashiri's lawyers had argued that he was so traumatized by years of being shackled in CIA prisons that having to be shackled now, when he meets his lawyers, brings back the trauma and impairs his ability to help them prepare for his trial. The lawyers wanted Nashiri to take the stand to talk about those experiences, but because that information was classified, the judge was expected to close the hearing. Ten news organizations, including the Miami Herald and the New York Times, filed a petition to keep the hearings open, and their lawyer was allowed to address the commission, setting an important precedent regarding the public's interest in open proceedings.

In the end, the judge rendered the issue moot by approving Nashiri's motion to meet with his lawyers unshackled, without calling him to the stand. The chief prosecutor later made it clear that he would not agree in the future to Nashiri's open-court testimony about his detention. So, though we know some details of Nashiri's treatment, we may never know exactly what was done to him. The CIA actually recorded some of Nashiri's waterboarding, but in 2005 it destroyed the tapes and those involving many other detainees, allegedly for national security reasons.

Nashiri's trial before the Guantanamo military commission raises problems that go far beyond the fact that he was tortured. Despite changes made to the commissions since President Obama was elected, they do not meet international fair trial standards. The Defense Department, for instance, handpicks the military judges and juror pool. And there is a massive inequality between the prosecution and the defense in terms of resources.

The rules permit the prosecution to present summaries of classified information, meaning that the accused and his lawyers see only summaries, not the underlying reports, transcripts and other information on which they are based. While similar protection of classified information is available in U.S. civilian courts, the commission rules also allow the introduction of hearsay. These two rules combined allow prosecutors (even unintentionally) to launder evidence obtained from other detainees by torture because they need only present a written summary of the interrogation, not offer the detainee or the interrogator in person, as a witness, or even disclose their identities.

At the end of last week's hearings, several family members of U.S. servicemen and women killed on the Cole spoke movingly at a news briefing about their quest for justice. They deserve a verdict free from doubt, just as the U.S. needs a trial that is accepted around the world as a fair search for the truth. On both counts, the Guantanamo commissions are likely to fall short.
 
Guantanamo detainee contests court's secrecy rule

http://www.google.com/hostednews/af...ocId=CNG.6ceaa635acd17ac8d093c69700cae3ec.381

(AFP) – 9 hours ago

WASHINGTON — An accused September 11 conspirator filed a motion challenging a rule that keeps statements by the Guantanamo detainees secret, his lawyer said.

Attorney James Connell called for end to "the presumption of classification" that applies to everything the Guantanamo detainees say.

His client, Ali Abdul Aziz Ali, is scheduled to be arraigned May 5 at Guantanamo along with four other accused terrorists.

All statements made by the detainees are reviewed by US military judges for national security implications before they are released publicly.

Asked whether his client would plead guilty or not guilty during his arraignment, Connell said he could not answer because everything his client says is "presumed classified."

"Some of the things that the prisoners say are classified, other parts are actually unclassified but even the parts that are unclassified, we are required to treat as if they are classified," Connell told AFP.

The motion Connell filed on behalf of Ali "tries to open up the situation so things that have nothing to do with national security could be discussed," he said.

"Presumptive classification contradicts both our democracy's need for transparency and its rules for protecting national security. It only serves to hide the truth about the torture these men experienced," Connell said in a statement.

"Under federal law, only information relating to nuclear weapons is presumed to be classified; all other information must be reviewed by a government official... before it can be classified," he said.

The motion, which is scheduled to be discussed at the May 5 hearing, is "part of an overall push to make the military commissions open up a little bit so people can find out what's really going on," Connell told AFP.

Connell's court filing follows a request at a Guantanamo hearing last week by a lawyer acting on behalf of the US media that an accused terrorist's testimony about torture he suffered be made public.

Ali, a Pakistani, is scheduled to be arraigned alongside four other co-defendants.

The five are accused of planning and executing the September 11, 2001 attacks against New York and Washington, as well as the downing of a hijacked airplane in a field in Shanksville, Pennsylvania, which killed a total of 2,976 people.

One of the co-defendants scheduled to be arraigned at the May 5 hearing is Khalid Sheikh Mohammed, the self-proclaimed mastermind of the September 11 attacks.

The charges against the defendants carry a possible death penalty.
 
Defense Counsel File Motions Closed-Door Military Commission Proceedings

http://www.lawfareblog.com/2012/04/...-closed-door-military-commission-proceedings/

By Raffaela Wakeman
Wednesday, April 25, 2012 at 3:03 PM

Defense counsel for the five alleged 9/11 co-conspirators have filed several motions challenging the closed-door nature of some military commission proceedings.

Although the filings haven’t been released (they need to be reviewed and redacted first), the defense attorneys released two statements regarding them.

The first, dated Friday, April 19th, says:
Today defense attorneys for alleged 9/11 logistical co-conspirator Ali Abdul Aziz Ali filed a motion challenging a key secrecy rule at the military commissions. “Guantanamo Bay applies a rule that everything its prisoners say is ‘presumpively classified,’” said James G. Connell, a DoD civilian representing Ali. “Presumptive classification contradicts both our democracy’s need for transparency and its rules for protecting national security. It only serves to hide the truth about the torture these men experienced.” The motion is scheduled to be heard at the arraignment on May 5.

The motion argues that presumptive classification violates President Obama’s 2009 Executive Order governing classification, which includes a presumption that information should not be classified unless it meets strict criteria relating to national security. Under federal law, only information relating to nuclear weapons—called “Restricted Data”—is presumed to be classified; all other information must be reviewed by a government official called an “original classification authority” before it can be classified.

The motion will not be available to the public until the military commission has reviewed it and made any redactions it feels necessary.​
The second, released yesterday, April 24th, says:
Attorneys for the accused 9/11 conspirators have challenged the military commissions practice of conducting closed-door hearings on legal issues. “These men have suffered the worst excesses of secrecy,” said James Connell, attorney for alleged logistical supporter Ali Abdul Aziz Ali. “This trial needs to be conducted in the open, where victims of the 9/11 attacks, the media, and the world can see what is happening.”

A set of motions filed today and Friday challenge so-called “802 conferences” in which the military officer presiding over the military commission discusses issues with attorneys outside the presence of observers. Although the May 5 arraignment will be the first time the 9/11 defendants have appeared in a military commission since 2009, observers of the USS Cole case have noted that the military commission seems to address a number of issues behind closed doors. Colonel James F. Pohl, the military officer presiding over the USS Cole case, has also detailed himself to the 9/11 case.

Cheryl Bormann, attorney for Walid bin ‘Attash, contrasted the practice of 802 conferences with the rhetoric of “transparency” from military prosecutors. “The government is opposed to giving the press and public access to what happens behind closed doors. When the Chief Prosecutor claims the new and improved military commissions are transparent, he must not define transparent the same way we do – meaning, the public gets to see the process. We are disappointed that in a case with this much at stake, the prosecution does not mean what it says. We expect more from a fair system of justice than a series of public relations appearances and talking points from the prosecution.”

This motion is the latest in a series of challenges to secrecy in the military commissions. Earlier this month, a media coalition challenged a proposed closed hearing about torture in the USS Cole case, but Colonel Pohl’s ruling avoided the issue. Last week, attorneys for Ali Abdul Aziz Ali filed a motion contesting “presumptive classification” at the military commissions, which requires that all statements of Guantanamo prisoners on any topic be treated as classified. Colonel Pohl is expected to address the two most recent motions at the May 5 arraignment.​
 
How to Try Terrorists

http://loyalopposition.blogs.nytimes.com/2012/04/25/how-to-try-terrorists/

By ANDREW ROSENTHAL
4/25/2012

Adis Medunjanin is shown in this courtroom sketch on day one of his trial in Brooklyn federal court in New York, April 16, 2012.Jane Rosenberg/ReutersAdis Medunjanin is shown in this courtroom sketch on day one of his trial in Brooklyn federal court in New York, April 16, 2012.

Next month, more than nine years after he was captured, then thrown into a secret prison, tortured, and finally moved to Guantanamo Bay, Khalid Shaikh Mohammed will finally go on trial under the military commission system.

No matter how hard the judges and prosecutors try to make this trial legitimate, and I’m sure they will, I doubt the world will ever see it that way. The trial should be taking place in New York City, as Attorney General Eric Holder proposed. But Congress, in its politicized version of wisdom, refused to let that happen; they passed a law forbidding a federal court trial for any Guantanamo inmate, insisting that military tribunals are tougher, and that it’s simply too dangerous to try terrorists in New York City.

The problem with Congress’s argument is that it’s entirely unsubstantiated. There is no evidence suggesting that civilian courts can’t handle terrorist trials. On the contrary, there’s ample and mounting evidence proving that they can.

Last month, Mr. Holder pointed out that “since 9/11 hundreds of individuals have been convicted of terrorism or terrorism-related offenses in Article 3 courts and are now serving long sentences in federal prison. Not one has ever escaped custody. No judicial district has suffered any kind of retaliatory attack.”

In fact, as National Public Radio reported yesterday, there is a terrorism trial going on right now—in Brooklyn, of all places. One of the three men charged with plotting to blow up the subway system in 2009 is facing life in prison without the possibility of parole. (The other two pleaded guilty already.) Amazingly enough, there is no hue and cry.

There is no good reason to believe that the criminal justice system can handle an alleged terrorist who plotted to destroy the subway, but not an alleged terrorist who plotted to destroy the World Trade System. No good reason. The obvious bad reason is politics. Opposing the Mohammed trial was a publicity bonanza for tough-on-terrorism Republicans and a bipartisan group of cowardly members of the New York Congressional delegation.

The secondary bad reason is torture. If the Mohammed trial had taken place in federal court, details about his treatment might have become public, embarrassing lawmakers who either supported or turned a blind eye to prisoner abuse under President George W. Bush, and shaming President Obama, who has done nothing to bring his predecessor to account.
 
9/11 judge has handled tough cases before
The judge presiding over the trial of the five men accused of orchestrating the 9/11 attacks is a no-nonsense jurist who takes on the toughest cases himself.

http://www.miamiherald.com/2012/04/28/2773674/911-judge-has-handled-tough-cases.html

By CAROL ROSENBERG
[email protected]

When President George W. Bush proposed razing Iraq’s Abu Ghraib prison in 2004, this American Army judge declared it a crime scene and forbade its demolition. When five years later President Barack Obama asked the Guantánamo war court to freeze all proceedings, the same judge refused the brand-new commander-in-chief’s request.

He’s Col. James L. Pohl, who has appointed himself to preside at the war crimes trial of the five men accused of orchestrating the Sept. 11 attacks.

It’s not that Pohl is unaware of rank after three decades in the Army. It’s simply not relevant in this colonel’s court.

Here’s how he scolded a prosecutor when the prison commander, an admiral, was late for court to testify after lunch recess in January: “Witnesses should be waiting either in the trailer at the back or outside,” the judge bristled, “and I really don’t care what their rank is.”

A soldier since the ’80s and a judge since 2000, Pohl has had judicial oversight of some of the most notorious Army cases of the post-Sept. 11 era.
  • He presided at the trials of nine soldiers found guilty of abusing detainees at the Abu Ghraib prison in Iraq.
  • He decided that U.S. Army psychiatrist Maj. Nidal Hassan should get a death-penalty trial for the 2009 shooting spree that killed 13 soldiers and wounded dozens more at Fort Hood, Texas.
  • In September, however, he found the opposite at a show-cause hearing for Army Sgt. John Russell. Unlike Hassan, Pohl ruled, Russell had “an undisputed mental disease or defect” that made it “inappropriate” to pursue a capital case for allegedly killing five troops at the combat stress center at Iraq’s Camp Liberty in May 2009.
  • Pohl also presided at the so-called “mercy killing” trial of an Army captain, a tank commander, who killed a critically wounded insurgent in May 2004, and was captured on an aerial drone’s videocam doing it.
Now, at a moment when most 60-year-old colonels are retiring from service, Pohl is chief military commissions judge, and has chosen to take on two of the most high-profile trials of his career: the 9/11 trial, and the trial of a man who allegedly engineered al Qaida’s 2000 USS Cole bombing.

Each case seeks the death penalty. Each is to be heard by a military commission, the tribunals that Bush had created after Sept. 11 and Obama ordered reformed upon taking office.

Saturday, Pohl will face off for the first time with Khalid Sheik Mohammed, who bragged that he masterminded 9/11 for al Qaida — wading into the case that’s been a lightning rod for criticism that the court was created to cover up torture.

Serious about the law, but not himself
“All judges should be like him,” says Indiana Supreme Court Justice Steve David, a retired Army colonel.

Pohl “takes what he does very seriously but not himself. He is fair and firm with a great sense of humor and a keen mind. If I were prosecuting or defending, he would be a great choice for judge.”

He’s by far the most experienced military judge currently in the Army, adds retired Marine Lt. Col. Guy Womack, a veteran military defender of Pohl courts martial from the Green Zone in Iraq, Germany and the United States, notably the Abu Ghraib case.

There, Pohl caused a mini-stir by refusing a guilty plea by Pfc. Lynndie England, the soldier photographed with a detainee on a leash. At her hearing, another soldier testified that England was ordered to pose for that picture, casting doubt on her admission of conspiracy. Pohl ordered a trial. She was found guilty.

Womack also described Pohl as one of the military’s most methodical and careful crafters of judicial rulings to make sure they stand up to appellate scrutiny, a skill set he likely acquired in the early 1990s while working at the government appellate division in Falls Church, Va., defending Army convictions.

When he got the Abu Ghraib case, said Womack, Pohl kept “all of them, which is typical” — a practice Pohl has repeated at Guantánamo by handling all the trials of the former CIA captives.

Womack called Pohl’s judicial style “dictatorial,” and said the judge preferred to meet defense and prosecution attorneys in chambers, out of earshot of the public and off the record, before each day to map out how the session would proceed.

Of the 9/11 trial, said Womack, “Col. Pohl would be the judge of choice for this case either because he doesn’t want to be reversed, or because he wants to mean well. You need a strong judge; a weak judge would never get it done.”

At the same time, he has shunned the spotlight.

Pohl wouldn’t be interviewed for this profile.

He travels incognito, in jeans and polo shirt, no colonel’s uniform for him. And he has stood in line to check in for the war court charter flight from Andrews Air Force Base undetected by reporters, legal observers, enlisted troops, even some lawyers going to Guantánamo, too.

An ex-Army prosecutor calls him “ego-less.” David calls him “humble,” and, oddly for a man so private, “someone that could do those commercials for Dove soap for men. He is very comfortable in his skin!”

Omitted from Pohl’s terse court biography is that he was sworn in as a judge on May 19, 2000, after completing the Army’s “Military Judge Course” with perfect scores on his final exams and graded practical exercises. That makes him the longest serving judge currently in the U.S. military. His biography also does not mention that he’s been retained past his retirement date, Oct. 1, 2010, and serves in a special status that requires renewal each year.

At Guantánamo, it’s hard to spot him around the base, where he mostly splits his time between the court and his quarters. On a sticky evening in April, military lawyers donned crisp uniforms and civilians put on suits and ties to climb a hill to the old tribunal building and meet the judge in his chambers.

They found Pohl in jeans and loafers, no socks, and a pink sports shirt.

By gavel-down the next morning, he was in his Class Bs, the new Army uniform with a gold stripe down the trousers, topped by a black robe — commissions business attire.

Sometimes, you can see him at dinner in a corner booth at O’Kelly’s pub. But, unlike the lawyers and reporters, who mingle and make small talk, he keeps the company of his staff, and he doesn’t linger at the bar.

Judicial independence
Judge Pohl comes to the 9/11 case from the peculiar position of having been passed over for promotion to general and retained past retirement, meaning “he’s got nobody he has to please,” says retired Lt. Col. Victor M. Hansen, who spent 20 years as an Army lawyer and now teaches at New England Law School.

Hansen says Pohl has the judicial independence to throw out a case for insufficient evidence, no matter how high profile. “He would not bat an eye, and sleep like a baby that night.”

Guantánamo’s death penalty cases present Pohl with grave issues in a still-evolving system.

CIA torture is alleged — some of the accused were waterboarded, threatened at gunpoint, sleep deprived, hung by their wrists, had their families threatened. A jury of U.S. military officers decides guilt or innocence, life or death. It’s Pohl’s job to decide what charges go to the jury and to make sure no evidence derived from abuse or worse is used at trial.

Pohl has yet to tip his hand on what he’ll do if he’s confronted with proof that U.S. agents tortured a captive. By international law, it’s a war crime.

He has told defense lawyers it’ll be their job to instruct him on how to regard the treatment, what rules apply, and it’ll be his job “to follow the law and the preferences given to me by counsel and as I interpret it.”

Hansen predicts that Pohl “will take the prosecution through the wringer” to make sure no “derivative evidence from coerced confessions comes in.”

Earlier in their careers, Hansen was an Army prosecutor who worked opposite Pohl, who was taking a turn as defense attorney, typical of the Army legal career track. Hansen predicts the judge will be “tough on both sides” at the 9/11 trial.

“He’s lived as a defense counsel in the Army, when you’ve got the whole prosecution against you. And so he’s very good on keeping the government’s feet to the fire.”

Lawyers who’ve watched Pohl for years say he sweats the details, and demands the same of those who come to his court.

Privacy, wry wit
Pohl’s an intensely private man.

Friends likewise declined to answer the most innocuous human interest questions. Not even what he does when Army plays Navy, a football rivalry that’s a rite.

Public records show that James Lancaster Pohl earns $10,557 a month plus a housing allowance. He turns 61 next month.

He has served a stint in Korea, at least five years in Germany and is now based at Fort Benning in Georgia, where he registered as a voter in September 2008.

He’s voted once since — on Nov. 4, 2008, the historic elections that put the first African American in the White House.

He’s a 1974 graduate of UCLA, where records show he got a bachelor of science degree in psychology. He went up the road to Malibu’s Pepperdine University to get his law degree in 1978, and was admitted to the California Bar after Thanksgiving that year.

Several friends mentioned his hilarious sense of humor, which you only glimpse at court.

Once, a defense attorney invoked the estimate that it costs $800,000 a year per Guantánamo detainee and called it “a monument to waste.”

Pohl retorted: “Let’s say it is robustly resourced.”

When a Saudi in his court pulled out a poster showing Obama’s pledge to close Guantánamo, the judge dryly asked the man’s attorney whether this should be marked as evidence.

“For as many big cases as he’s had, that he’s tried, the man really is ego-less,” said former Army Maj. Christopher Graveline, who prosecuted the Abu Ghraib case and left the military in 2006. “It’s never about him, it’s about doing the process and trying to reach a fair result.”

So when Pohl was holding hearings in Baghdad and President Bush remarked back home that the prison should be demolished, the judge ruled for defense attorneys that the place needed protection.

“He gave a restraining order to the president and didn’t bat an eyelash,” said Graveline, who called it unprecedented and seemed genuinely dumbfounded by the order even now. “It wasn’t like a chest thumping thing for him. He said, ‘This is a crime scene and we’re going to allow them to take a look at it.’ ”

In the same hearing Pohl ordered numerous officers in the military chain of command, notably the Central Command’s chief, Army Gen. John Abizaid, to undergo questioning by defense lawyers trying to make the case that the guards were following policy by posing detainees for humiliating photos. (They weren’t and all the soldiers were convicted.)

“I was shocked,” Graveline said. “I was a captain at the time. I had to go back and tell my boss!”

The judge drew the line, however, when lawyers asked to question Defense Secretary Donald Rumsfeld and Stephen Carbone, his undersecretary for intelligence.

Pohl ruled the defense had not drawn a clear enough line to the political hierarchy to merit a subpoena. But, he told them, if they could make a better case for it later, he’d reconsider the request — not unlike what he’s been telling defense lawyers in the USS Cole case when their motions fail.

It was his handling of the Cole case that confounded the freshly minted Obama administration.

Just hours in office, Obama sent word to the Pentagon that he was suspending the trials at Guantánamo to review all the cases.

Obama had campaigned on a promise to close the prison in Cuba, and prosecutors filed motions to delay the arraignment of Abd al Rahim al Nashiri, who’d been waterboarded by the CIA.

Bush-era lawyers approved death-penalty charges in the dwindling days of the administration, and served Nashiri on Christmas Eve. A statutory 30-day speedy trial clock was ticking.

And Pohl ruled against the new president.

“The Commission is bound by the law as it currently exists not as it may change in the future,” he wrote. A continuance, he added, would “not serve the interests of justice.”

The Pentagon had an out: It could withdraw the charges, without prejudice, and preserve the option to try Nashiri later. A Defense official ultimately did that. But not before a mini-maelstrom questioned Pohl’s motives.

Anthony D. Romero, executive director of the American Civil Liberties Union, blamed Bush administration holdouts for “exploiting ambiguities in President Obama’s executive order as a strategy to undercut the president’s unequivocal promise to shut down Guantánamo.” Former USS Cole commander Kirk S. Lippold countered that the judge had delivered “a victory for the 17 families of the sailors who lost their lives on the USS Cole over eight years ago.”

An online bulletin board for the military law community posted the development with the headline, “Army Judge Pohl Sticks it to Obama Administration”

Lawyers who had worked with the judge weighed in, and disagreed.

Pohl had applied the law, as written, to the government motion and could not find a reason to grant it. “On its face, the request to delay the arraignment is not reasonable,” he had ruled.

Classic Pohl, it reflects the judge’s penchant for noting the political and then arguing it’s irrelevant.

At a hearing weeks after Obama was elected, but before he took office, Pohl announced the obvious:

“This court is aware that on Jan. 20 there will be a new commander-in-chief, which may or may not impact on these proceedings.” Meantime, he advised, everyone should stay focused “unless and until a competent authority tells us not to.”

Guantánamo has a court like no other. It gets turned off and on by a charter flight carrying staff, and follows its own rulebook, not the Uniform Code of Military Justice used to try American soldiers. In between court sessions, Pohl issues instructions by email. He’s announced that he’ll accompany Nashiri prosecutors and defense lawyers to Yemen this summer, as deposition officer overseeing sworn testimony from Yemenis who can’t be subpoenaed to the war court in Cuba.

“Location does not matter to Judge Pohl,” said Graveline. “I know he’s gone to Afghanistan, he’s gone to Iraq — in that sense, he’s very Army.” He’s held court at a forward operating base in Baghdad’s Sadr City, the mostly Shiite slum that often simmered with anti-American unrest.

Once, during an Abu Ghraib hearing, the courtroom building shook with the thud of insurgent mortars striking inside Camp Victory in Baghdad. Pohl told everyone “to stop in place” for a few moments; the attack over, he ordered court to resume.

For next week’s hearing, the Pentagon is bringing up to 60 reporters.

Pohl’s made clear from the bench that he’s a proponent of transparency but will close the court if the rules require it.

“I don’t think he worries about the media scrutiny or the military scrutiny,” said Hansen. “But he doesn’t want to make a bad ruling or a rash ruling.”

Plus, said Hansen. “He’s certainly not afraid to ruffle feathers, to call it like he sees it and not necessarily worry about the long-term consequences.”

At the end of the day, those who know him say, Pohl will play the role of referee at Guantánamo through the prism of three decades of service to the Army that honors judicial independence guided by what the rules created by Congress and the White House require.

Says Graveline, the Abu Ghraib prosecutor: “Judge Pohl knows what the law is — that’s military law and U.S. law — and he follows the law. There’s always evolving areas of law, but we try to analogize it to bedrock principles of justice, and it always goes back to, is this a fair process?”

Defense attorney Womack, who argued opposite Graveline, says that Pohl is capable of delivering that kind of justice. “He knows the law. He has a strong personality. And you can’t have referees that vacillate.”
 
Military to show Guantánamo proceedings at 4 U.S. bases
First responders will get their own New York City screening room to watch the 9/11 trial at Guantanamo. The general public can only go to one site, at Fort Meade, Md., to see a closed-circuit broadcast of the accused 9/11 plotters charged with war crimes

http://www.miamiherald.com/2012/04/28/2772983/military-to-show-guantanamo-proceedings.html

By CAROL ROSENBERG
[email protected]

Firefighters and cops who raced to the burning trade World Trade Center towers on Sept. 11, 2001 will watch in one room at a Brooklyn Army post while 9/11 victims will watch from another. Media, family members and members of the public can watch on three separate screens at Fort Meade in Maryland.

For next week’s unusual Saturday military commissions arraignment at Guantánamo of five men accused of orchestrating the Sept. 11 attacks, the Pentagon has put four U.S. military bases into service — all on the East Coast.

Friday, the Pentagon published an order by Army Col. James L. Pohl, the chief of the Guantánamo war court, to open viewing sites for the May 5 arraignment “due to the serious nature of the crimes alleged and the historic nature of military commissions.”

In it, Pohl authorized a total of eight viewing sites set up for different categories of spectators authorized to watch via closed-circuit TV feed when Khalid Sheik Mohammed and four alleged 9/11 accomplices are brought into the Guantánamo court.

All five are accused of organizing, training and funneling funds to the hijackers who flew planes into the World Trade Center, Pentagon and a Pennsylvania field on Sept. 11, 2001, and could face the death penalty if convicted at trial.

Two of the sites won’t be ready in time, so the viewings break down this way:

• Properly credentialed family members who lost relatives in the 9/11 attacks can watch at Fort Devens in Massachusetts, Fort Hamilton in Brooklyn, Joint Base McGuire Dix Lakehurst in New Jersey and Fort Meade in Maryland. Those with credentials signed up through website notices to 9/11 families and have already been vetted. (Five 9/11 family members will to travel to Guantánamo, each with a companion, to watch from a spectator gallery. The Defense Department choose them by lottery, though they have not been publicly identified.)

• Reporters who signed up with the Pentagon Office of Public Affairs can watch at Fort Meade, the site closest to the Pentagon, on a separate screen than the one provided for victims. The judge approved a second media viewing site at an unspecified “Executive Branch Federal Building” in Washington, D.C. But a government official said Friday that the Washington site has not been set up. (The Pentagon also is providing seats in the courtroom at Guantánamo and a closed-circuit feed to 60 reporters and support staff at Guantánamo’s court compound, Camp Justice.)

• First responders get their own screen. New York police, firefighters and other emergency workers who raced to the burning World Trade Center on 9/11, but didn’t lose relatives, don’t meet the Pentagon’s definition of victim family members. So Pohl approved the establishment of a separate screening site in Manhattan.

It’s still being set up, said Fort Hamilton’s spokeswoman, Alison Kohler. In the meantime, they’ll get a separate screen at Fort Hamilton, in a “multi-purpose-room” that can seat 460 people and accommodate 150 more in overflow space. Victim families will get the base auditorium that seats 500.

Fort Hamilton is an active military base, Kohler noted, adding that all visitors and their vehicles will be searched. It’s also home to a special anti-terror unit, called a Civil Support Team.

Some of the Pentagon-paid lawyers who’ve been assigned to defend the five men are arguing for even greater transparency of the actual trial.

“We want it on C-SPAN,” defense attorney James Connell III said from Guantánamo, where he’s filing motions on behalf of Mohammed’s nephew, who is accused as a conspirator in the attacks for wiring money to some of the 9/11 hijackers.

Wider viewership, Connell argued, might gain more understanding of the diverse roles that the five accused allegedly played in the attacks. In the case of Connell’s client, who’s known as Ammar al Baluchi, “I think if people understand more about him, they’d be less likely to say ‘Hey this low-level guy deserves the death penalty.’ ”

Attorney General Eric Holder had first decided to hold the 9/11 trial in Manhattan, with a civilian jury hearing the case at the U.S. District Court. Congress blocked that plan through legislation. Holder ultimately authorized the Defense Department to hold the trial by military commission, a jury of U.S. military officers.
 
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