Suppression Hearing in Sept. 11 Case Ends With Stormy Exchanges Over Trial Date

Guantanamo Naval Base, Cuba – The headlines generated last month when Air Force Col. Shane Cohen set a January 2021 trial date in the Sept. 11 case yielded during September's hearings to finger-pointing between defense teams and the prosecution over who is responsible for the delays in the case and arguments over whether the judge’s timeline was realistic.

Rita Radostitz, a civilian lawyer for Khalid Shaikh Mohammad, urged Cohen on Thursday to lengthen the deadlines to file certain motions and to reduce the amount of court time scheduled for 2020. The defense teams do not mind working long hours, she said. But she argued that defense lawyers should not face unreasonable work challenges because of the government's choice to not only torture the five defendants but also, several years later, to start prosecuting them in a new court system – all while withholding evidence the defense teams need to prepare their case.

One of the prosecutors, Ed Ryan, countered that the defense teams were well resourced to meet the challenges and urged Cohen to stick to his dates.

“The prosecution is completely committed to the schedule,” Ryan said.

The arguments came at the close of the first-ever three-week session in the case, which dates to the defendants' May 2012 arraignment. Radostitz and lawyers for three other teams presented a range of reasons for shifting the deadlines, though they did not propose a specific new trial date. (One team, for Ammar al Baluchi, has moved forward faster with its litigation strategy and is not joined to the scheduling dispute.)

Cohen’s schedule has the parties in court 22 weeks next year, which consumes 30 weekends when travel days are included. Radostitz said the ambitious schedule was difficult on family obligations and made progress on motions difficult, given the massive amount of time required to prepare adequately for court days in which witness testimony is included. She added that the government continues to provide important discovery, which requires new investigative work that often demands international travel.

Heavy rains that intermittently battered the court complex and other parts of the island over the past three weeks underscored lingering infrastructure concerns. Radostitz told Cohen she awoke Thursday morning to brown water dripping on her bed and soon discovered the brown water filling her bathroom floor.

Radostitz explained that the storms twice caused electrical outages that interrupted work for several hours, and the weather also contributed to outages in the location where attorneys meet with their clients. She stated the obvious to everyone in the courtroom when she characterized the performance of the trailer bathrooms and latrines in the court complex and greater Camp Justice area as less than optimal.

Radostitz said that while these inconveniences are minor in isolation, collectively they present a challenge to a fair trial.

“It has a cascading effect on our ability to litigate,” she said.

The judge has learned in his first three sessions that running a massive case on Guantanamo presents unique challenges. He was not unsympathetic.

“I share with you the issues that are down here,” Cohen said.

But Ryan was having none of it. He said he deeply disagreed with the defense position that choices by the government have led to the current state of play. Ryan pointed to Mohammad and argued it was the defendant’s choice to orchestrate the 9/11 attacks that required the U.S. government to take a series of actions, which included the CIA’s development of an interrogation program that has been the focus of much of the pretrial phase.

“We are ready to fight,” Ryan said.

Ryan noted that Mohammad had five defense lawyers at his table. He told Cohen that there must be a joke about how many lawyers it takes to file a motion.

“I submit to you that the punchline is ‘less than five,’” Ryan said.

The government faces a Nov. 1 deadline to submit to Cohen a plan detailing logistics and infrastructure to prepare the base for trial. The chief prosecutor, Army Brig. Gen. Mark Martins, told Cohen that the government would create the setting for a fair trial.

“We’ve taken this on board,” Martins said. “This is shaping our lives now.”

Ryan’s remarks caused a stir in Walter Ruiz, the lead lawyer for Mustafa al Hawsawi. He put responsibility for the length and location of the proceedings back on the government.

“They only need to look clearly and honestly in the mirror,” Ruiz said. Ryan was defending government choices that have undermined American principles, he argued.

“There is nothing American about that,” Ruiz said.

Mohammad Team Participates in Part of Suppression Hearing

Most of the three-week hearing focused on a motion to suppress evidence filed by the team for al Baluchi, who is Mohammad’s nephew. Last week, Connell called two FBI witnesses to demonstrate what he termed “feedback loops” between the FBI and the CIA during abusive interrogations at CIA black sites. He contends that interagency coordination amidst the torture should render inadmissible the statements al Baluchi made to FBI agents in 2007, after he arrived at Guantanamo Bay from the black sites.

At the same time, prosecutors elicited testimony from FBI agents to support their claim that al Baluchi participated voluntarily in the Guantanamo sessions in which he confirmed his role in supporting the hijackers. The agents – one of whom remains with the bureau and another who has left – portrayed the January 2007 sessions as friendly, rapport-building interviews in which they shared McDonald’s lunches with al Baluchi.

The other four defense teams generally did not participate in the suppression hearing, choosing to wait until the government provides all of the relevant discovery. (Cohen has said he is willing to recall witnesses.)

The prosecution attempted to bolster its case that al Baluchi was in a sound mindset in 2007 by calling retired Navy JAG and current New Jersey Superior Court Judge Bernard DeLury as a witness. In 2007, DeLury served as president of a three-member Combatant Status Review Tribunal, or CSRT. The Department of Defense established the tribunals to determine whether Guantanamo detainees were “enemy combatants” under the law of war; those who were not deemed enemy combatants were released in coordination with foreign governments. (The CSRTs were later replaced by a different administrative review process.)

All of the defendants in the Sept. 11 case except Ramzi bin al Shibh participated in the tribunal process, which took place in the months after the FBI interrogated the defendants in January 2007. Ryan explained to Cohen that his intent was to show that the defendants’ overall demeanor in their exchanges with DeLury rebutted defense claims their clients remained in a state of “learned helplessness” after CIA torture.

In fact, under direct examination by Ryan on Tuesday, DeLury testified that al Baluchi did not show any signs of emotional or physical distress and even put up a defense, denying membership in al Qaeda. The government does not plan on using these statements at trial.

Prosecutors do, however, intend to use statements against the other defendants, including Mohammad. In the tribunal process, Mohammad claimed responsibility for planning the Sept. 11 attacks. When questioned by Ryan, DeLury testified that Mohammad “appeared to be alert and interacting with the tribunal.” Gary Sowards, the lead lawyer for Mohammad, decided to cross-examine.

With an air-cast on his foot, Sowards ambled up slowly to the podium as an intense thunder-and-lightning storm began to intermittently shake the prefab courtroom. The video feed going into the courtroom’s viewing gallery trembled; the 40-second audio delay used to prevent the spill of classified information meant that gallery observers heard a cacophony of thunder from the present and recent past.

“The Gods are angry,” Sowards surmised with a smile.

He engaged in a colloquy with DeLury about his extensive experience as a criminal judge and the rigorous attention he gives to ensuring that a defendant’s guilty plea or incriminating statements are voluntary. Sowards then asked him if he had ever had a defendant arrive in his courtroom after being physically and psychologically tortured for more than four years.

“It hasn’t happened in front of me,” DeLury testified.

“Excellent,” Sowards said. “You’re lucky.”

Sowards followed up: When assessing whether a statement was voluntary or coerced, would Judge DeLury want to know if a defendant had been stripped naked, hung from the ceiling and kept awake for more than seven days spoiling in his own waste, anally raped, put through 183 mock executions, and informed his children been kidnapped and abused?

The exchange dragged on as Ryan objected twice before Cohen allowed Sowards to restart and finally finish it.

DeLury answered that he would take that type of information into consideration when assessing the voluntariness of a defendant's statement.

At the end of Sowards’ cross, DeLury testified he had no professional training related to torture victims that would enable him to identify the signs of learned helplessness.

The unsettling subject matter drifted into Thursday morning as the prosecution pushed forward with its argument that it should be able to conduct a mental health evaluation of al Baluchi. After all, prosecutor Clay Trivett argued to Cohen, the al Baluchi team had mental health experts to support a contention that any statements made after CIA torture were involuntary and unreliable. (Those experts have not yet testified.)

“We have to have the ability to rebut that,” Trivett said.

James Connell, the lead attorney for al Baluchi, argued that the government’s position is not supported anywhere in commission rules. He also told Cohen that, as part of the discovery process, his team provided the government with his experts’ reports and all the underlying data, including al Baluchi's MRI tests showing traumatic brain injury.

Connell also claimed that the government has already spent $81 million on the CIA torture program, which included regular psychological assessments of the detainees. He displayed for the court and read from summaries of CIA cables documenting 15 such assessments of al Baluchi throughout his time in the interrogation program. In these cables, al Baluchi evolves from “developing a sense of learned helplessness” to reporting psychotic hallucinations before eventually returning to a more psychologically stable state. In the last assessment before his transfer to Guantanamo Bay, al Baluchi is described as having “subclinical levels of depression and anxiety.”

At Guantanamo Bay, al Baluchi continued to have hundreds of mental health evaluations, Connell said. All told, Connell estimated that government personnel performed some type of psychological assessment of his client about 300 times.

“I don’t think they need 301,” Connell argued.

The next pretrial session, scheduled for two weeks starting Oct. 28, is expected to be mostly taken up by witnesses related to al Baluchi’s suppression motion.

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, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.