Sept. 11 Hearings Resume with Disputes Over Military Tribunal's Jurisdiction

Guantanamo Naval Base, Cuba – Pretrial proceedings in the Sept. 11 military tribunal at Guantanamo Bay resumed this week with arguments on two issues critical to the case  – when the war with al Qaeda began, and what constituted war crimes at the time of the attacks.

The military commission is a war court, established by Congress in 2009 to try crimes committed in the context of hostilities. Defense lawyers claim that such hostilities did not exist at the time the Sept. 11, 2001, attacks were committed.

Army Maj. Joseph Wilkinson, a military defense lawyer for Mustafa al Hawsawi, argued on Monday for dismissal of the case on the grounds that it was in “the wrong kind of court.”

Wilkinson told the judge, Army Col. James Pohl, that a regular federal court and not the military commission was the proper venue for alleged terrorist offenses conducted outside the context of war.

The government, however, contends that hostilities with al Qaeda date to Osama bin Laden’s 1996 declaration of war against the United States. Prosecutor Clay Trivett said that the government will prove the existence of hostilities as elements of the charged offenses at trial. He argued that Pohl should not rule on whether the commission had “subject-matter jurisdiction” over the offenses until the prosecution presents its case in chief. At that point, the five defendants’ guilt or innocence will be decided by a panel of military officers, who also will decide any sentence if there are convictions. All five defendants face the death penalty for their alleged roles in planning and financing the attacks.

A trial date remains unset in the case, which commenced five years ago with a May 2012 arraignment. The prosecution led by Army Brig. Gen. Mark Martins has asked Pohl to start the trial in mid-2018, a date defense lawyers portray as wildly unrealistic.

An appellate court has already upheld the commission's jurisdiction in the case against accused USS Cole bomber Abd al Rahim al Nashiri. The Court of Military Commission Review held that the resolution of “factual questions” tied to subject-matter jurisdiction “must be deferred until trial.”

Lawyers for three of the other five accused in the 9/11 commission neither joined nor argued the motion in court Monday – preferring instead to wait for additional discovery before making their own arguments.

The exception was James Connell, the lead attorney for Ammar al Baluchi, who joined parts of the al Hawsawi team’s motions related to jurisdiction. He argued that the review court’s al Nashiri decision does not preclude pretrial litigation on whether the commission has “personal jurisdiction” over the defendants. The court can only try “alien unprivileged enemy belligerents,” which Connell said is a status designation that also requires the existence of hostilities. Connell’s team has argued that hostilities began after the U.S. attacked Afghanistan in October 2001.

Connell argued that the government must establish during the pretrial phase that the defendants engaged in or supported hostilities, or were members of al Qaeda. He wants an evidentiary hearing at which the prosecution team must meet this burden by a preponderance of the evidence.

On Tuesday, lawyers for the al Hawsawi and al Baluchi teams argued a separate motion contending that three of the seven charges against the defendants – conspiracy, terrorism and hijacking – were not established war crimes at the time of the 9/11 attacks and should be dismissed as unconstitutional ex post facto application of law.

Again, Wilkinson said, the government is using the wrong forum.

“You have to do it in a federal civilian court,” he argued, where the three charges are established crimes.

Gen. Martins countered that the military commissions statute did not “create” new crimes but merely “codified” commonly accepted war crimes.

The validity of conspiracy charges in military commissions has been litigated extensively in the case against Ali al Bahlul, a Guantanamo detainee who is serving a life sentence. A panel of the U.S. Court of Appeals for the D.C. Circuit, which hears appeals of rulings from the Court of Military Commission Review, invalidated al Bahlul’s conspiracy conviction, but the Circuit reinstated it after an en banc hearing. Al Bahlul’s lawyers have appealed to the U.S. Supreme Court.

In April, Pohl dismissed two charges in the Sept. 11 case – attacking civilian property and destruction of civilian property in violation of the law of war – on the grounds that a five-year statute of limitations had run out on the non-capital offenses. The government has appealed this ruling to the review court.

Troubles Continue for the Walid bin Attash Team

Monday began with a request by defense lawyers for Walid bin Attash to abate the proceedings because the lawyers are being sued in Illinois federal court by a former team member.

The suit is a continuation of the turbulence that has riled the bin Attash team for more than a year. Pohl has repeatedly denied bin Attash’s request to have his lead attorney, Chicago lawyer Cheryl Bormann, removed from the case. Her team doesn’t sit with bin Attash at the second defendant table near the front of the court but instead at a table at the back, near the viewing gallery; their presence angers the defendant.

The latest twist occurred in April when Tim Semmerling, a mitigation expert fired from the team last year, sued Bormann and three other team lawyers for defamation and intentional infliction of emotional distress.

Bormann told Pohl on Monday morning that the suit created a conflict on the team because she could not advise her client on the suit’s implications, adding that bin Attash could be a witness in the civil case -- perhaps in support of Semmerling's claims. She said that her client should at least be assigned an independent counsel to provide advice.

Bormann was limited in what she could say in open court due to attorney-client privilege. (Semmerling's complaint is sealed.) A clearly frustrated Pohl cleared the court to allow Bormann’s team to make an ex parte presentation with her client present about the nature of the perceived conflict created by Semmerling’s claims.

After lunch, however, Pohl agreed with prosecutor Ed Ryan that the suit did not create any actual or even an apparent conflict. (In his argument, Ryan also had wondered how a Guantanamo Bay detainee could be a witness in a civil case in a U.S. civilian court.)

Bormann and other team lawyers then moved to withdraw from the case, citing their ethical obligations. Pohl denied the requests.

This round of hearings – the 23rd pretrial session in the Sept. 11 case – is expected to conclude Friday with the testimony of Abu Zubaydah, a detainee who is not charged in the case.

One of the defendants, Ramzi bin al Shibh, claims that the guard force at the Camp 7 detention facitly for high-value detainees is subjecting him to disruptive noises and vibrations. He says the abuse is a continuation of the torture he suffered at CIA black sites before arriving at Guantanamo Bay in September 2006. Zubaydah, who serves as a cell block facilitator between detainees and guards, is testifying in support of bin al Shibh’s motion to have the judge hold the government in contempt. The government denies that bin al Shibh is being mistreated at the camp.