9/11 Guantanamo Pretrial At Crossroads Over Suppression, New Judge's Scheduled Departure

Marine Col. Keith Parrella, scheduled to depart the case in June, heard oral arguments on access to Senate findings and CIA witnesses before his May 10 deadline set for suppression motions.

Guantanamo Naval Base, Cuba – The Sept. 11 military tribunal is concluding its seventh year of pretrial hearings this week by returning to long-pending disputes over access to CIA evidence and allegations by defense lawyers of government intrusions into their teams.

At the start of this week's session on Monday, defense teams pushed for access to the complete classified Senate report on the CIA program under which their clients were subjected to years of abuse. Lawyers hope the 6,000-page Senate report and the 6-million pages of underlying documentation will fill gaps in torture evidence already provided by the government, albeit in summarized and redacted form. For now, the teams have what the public has access to – the 500-page executive summary released in December 2014, which itself has redactions.

The chief prosecutor of the commissions, Army Brig. Gen. Mark Martins, argued that the five defense teams have been given the vast majority of discovery they are entitled to about the CIA’s former program, including 23,000 pages of evidence summarizing “enhanced interrogation techniques” described in the Senate report’s underlying documents.

“There is a trickle that remains,” Martins told the judge, Marine Col. Keith Parrella, who was assigned to the case just last year and was possibly presiding over his last pretrial session. Parrella is scheduled to begin transferring to his new assignment for the Marines before the next hearing set for mid-June, creating more uncertainty for a criminal case that dates to the May 2012 arraignment.

Oral arguments on the issue of access to the Senate report proceeded Monday without the participation of some key players. For the third straight session, the lead lawyer for Khalid Shaikh Mohammad told Parrella that his team could not actively participate in the proceedings because they fear team members might be under criminal investigation.

“I’ve told you that I feel this conflict,” David Nevin, the lead lawyer, argued. “It’s a complicated situation.”

Defense concerns arose late last year when a former paralegal on the Walid bin Attash defense team was interrogated by FBI agents shortly before the paralegal's transfer to a new assignment. According to an affidavit by the paralegal, FBI agents grilled him mostly about the bin Attash team. However, the agents also asked about other teams, according to the affidavit.

A so-called Special Review Team from the government – which is walled off from the prosecution team trying the case – convinced Parrella earlier this year that no member of any current defense team is under investigation. But lawyers for the Mohammad and bin Attash teams do not believe they have received enough information on the investigation to concur.

Parrella added a new twist Monday morning. He ordered Nevin to participate despite the defense lawyer's decision to hold back. The judge said his mandate was implied by his prior ruling finding no conflict. Nevin was caught off guard, and said he needed time to consult a legal ethics counsel to determine how to move forward. He also argued that Mohammad was entitled to conflict-free counsel to advise him on the situation.

Defense allegations of government activity to undermine the functioning of their teams are not new. At the last session, Nevin told reporters that he has been under investigation in one way or another nine times since taking the case, and that he has retained his own defense counsel on three separate occasions. The military commission trying Mohammad and his four alleged co-conspirators was derailed for 18 months when the team for Ramzi bin al Shibh, led by James Harrington, discovered in the spring of 2014 that the FBI had turned team members into government informants. The investigation into Harrington’s team closed without any criminal charges.

Nevin acknowledged that his position to not participate was in part “an emotional reaction” to the peculiar history of the case.

Parrella told Nevin that he would give him a day or so to decide what to do and that – if he chose to participate – he could present oral arguments later in the week.

Cheryl Bormann, the lead attorney for bin Attash, also told Parrella that she could not participate, citing the conflict.  (Parrella did not order Bormann to participate; attorneys reached outside court did not know why.)

After the lunch break Monday, Nevin told Parrella that he had consulted an ethics expert who advised him to do his best to actively represent Mohammad in light of the judge’s order. But Nevin reiterated that he was still “laboring under a conflict of interest,” both because of a possible investigation and because the latest episode involving the paralegal suggested that defense-team communications may be compromised.

“There are values in a capital case that are higher than efficiency,” Nevin said. He added that he may not be prepared to argue motions on the docket at this session, including defense motions to access the full Senate report.

The Sept. 11 case, now in its 35th pretrial session, is inching towards a critical phase. Parrella has put on hold the blockbuster ruling by his predecessor that precluded the government from using any statements the five defendants made to FBI interrogators in January 2007, after they arrived at Guantanamo from CIA black sites.

Defense teams had always planned to file motions to suppress the “clean-team” statements – taken during more conventional interrogations – as tainted by past torture and CIA-FBI coordination, both at the black sites and at Guantanamo. Army Col. James Pohl, who presided over the case from May 2012 to August 2018, excluded the statements before the motions were filed. Before leaving the case, Pohl ruled, somewhat surprisingly, that the defense teams were unfairly hampered by the government’s prohibition on team members independently contacting any current or former CIA personnel affiliated with the black-site program to investigate past torture.

Prosecutors asked Parrella to reconsider Pohl's ruling. On April 3, he sided with the government, finding that Pohl’s suppression order was premature and “a manifest injustice.” He ruled that while he also may decide to suppress the statements, he first wants to hold an evidentiary hearing in which defense teams present their suppression arguments. He ordered the defense teams to file their motions to suppress the FBI statements by May 10 and to provide a list of proposed witnesses, though he will not hear oral arguments on the motions if he departs the case as scheduled.

As of now, defense teams have to submit requests to interview CIA personnel to the prosecution team, which then sends FBI and CIA agents to contact the prospective witnesses and inform them of their right to participate. Defense teams that have tried to work through these protocols say they have not worked well and can never adequately replace the process of a trained investigator independently contacting and building rapport with witnesses without government involvement.

“No one ever won a case sitting in their office,” James Connell, the lead attorney for Ammar al Baluchi, told Parrella.

The judge is considering a new protocol proposed by the prosecution under which defense teams would prepare sealed letters requesting interviews that the government would deliver to prospective witnesses. Connell said he did not find any harm in Parrella accepting the proposal, saying he would "take any scrap of investigative authority" he could get his hands on, though he doubted the system would be an improvement. He told Parrella that the best approach was to simply order depositions of witnesses the defense teams identify rather than have them go through a cumbersome interview scheme arranged by the government.

Nevin argued that Parrella's idea of “a trial run” for a suppression hearing was a bad one. He argued that the judge would never know what could have resulted had the defense teams been able to exercise their constitutional rights to fully investigate the case.

“You'll only know what the restricted process will produce,” Nevin said.

Connell plans to go all-in on the suppression hearing, but it’s unclear the extent to which other teams will participate at this time. Outside court, Nevin said his team would still need to discuss their strategy.

Walter Ruiz, the lead attorney for Mustafa al Hawsawi, told reporters in a Sunday press briefing that his team would not participate in the suppression arguments. His team has filed a motion for Parrella to consider anew his reconsideration of Pohl’s ruling, contending the judge lacks the authority to schedule a suppression hearing before the teams are ready. He described the judge’s reasoning as asking the defense teams to drink water that Pohl found unsuitable for drinking – to see if it really was poisoned.

“It’s procedurally defective, particularly in a capital case,” Ruiz said. “We don’t plan on doing anything.”

Parrella also sided with the government in a separate ruling on April 3. He ruled that four defense teams cannot argue that the commission lacks jurisdiction over their clients on claims that the U.S. was not in an armed conflict with al Qaeda at the time of the Sept. 11 attacks. Al Hawsawi was the first defendant to make a pretrial “personal jurisdiction” challenge, which Pohl rejected by concluding that Congress and the President determined that hostilities existed with al Qaeda when they enacted the 2009 Military Commissions Act.

Parrella ruled April 3 that this determination applies to the rest of the defense teams, even though they have yet to present their arguments related to the existence of hostilities. (Connell's team has filed a motion to reconsider.) The next day, Parrella ordered the five defense teams and prosecutors to brief whether a military judge could also determine that hostilities existed at the trial phase, or should fashion some jury instruction to that effect for the panel of military officers who will decide the case.

This week, defense teams argued that the prosecution must bear the burden of proving beyond a reasonable doubt the existence of hostilities at trial, as an element of the alleged offenses. Clay Trivett, for the prosecution, thought that a jury instruction or judicial notice on the political branches’ determination of the existence of an armed conflict would be appropriate, though he said it would not change how prosecutors try the case. They still will prove to the panel members that hostilities existed, Trivett said Monday.

“We don’t think it’s going to be a hard call for them to make,” Trivett said.

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism. View our staff page.