New Sept. 11 Judge Halts Final Day of Hearing Over Covid Concerns

Khalid Shaikh Mohammad (left) sits at the front defense table, with one of his four co-defendants, Walid bin Attash, at the second table. Sketch by William J. Hennessy Jr. / CourtroomArt.com.

Guantanamo Naval Base, Cuba – The new military judge in the Sept. 11 case cancelled the last day of a two-week hearing Friday after attorneys on at least one defense team experienced possible exposure to Covid-19.

The potential exposure was reported early Friday morning after a member of the media who departed the U.S. Naval Base over the weekend told the military commissions’ public affairs officer that he tested positive for Covid-19 on Thursday night in his home city and was experiencing mild symptoms.

The hearing was the first held in the case since February 2020, at long last resuming pretrial proceedings that have stretched on for more than nine years. The potential Covid exposure highlights the challenges of running a five-defendant death penalty case – believed to be the first of its kind in U.S. history – in a remote setting that requires the travel of dozens of participants, many of whom are required to appear in court. The 2009 Military Commissions Act requires that defendants be represented by “learned counsel” experienced in capital cases, as well as by at least one military defense lawyer – though judges have on occasion proceeded without military counsel so long as the lead civilian lawyer was present.

James Connell, the lead lawyer for Ammar al Baluchi, and other members of his team met intermittently throughout the first week of the session in both indoor and outdoor settings with the 19 members of the media who attended. The relatively high media interest in the hearings was sparked by the 20th anniversary of the 9/11 attacks. The hearing concluded Sept. 10 and all of the visiting journalists except one departed Guantanamo Bay on Sept. 12 as did several lawyers and support staff who were not required to be in court.

While Connell was not experiencing symptoms, another member from his team who left Sept. 12 called in sick early Friday.

“I think it was a fluid situation where no one really knew what was going on, and the judge wanted to avoid risk,” Connell said late Friday. 

Connell’s team had the most potential exposure to the infected journalist. A lawyer from another of the four teams also went to the U.S. Naval Base hospital on Friday for a Covid-19 test after developing a coronavirus symptom. By late Friday, known test results among defense personnel and journalists were negative.

Col. Matthew N. McCall of the Air Force had earlier limited the scope of the hearing after Walter Ruiz, the lead lawyer for defendant Mustafa al Hawsawi, departed the island for personal reasons. McCall nevertheless made notable progress in taking ownership of the case. On Monday, the judge denied disqualification motions made by three of the defense teams following last week's voir dire. He also dipped his toes into the contentious discovery disputes that have consumed much of the proceedings since the alleged conspirators were arraigned in May 2012.

Defense teams are seeking additional information about the abusive interrogations conducted at CIA black sites between 2002 and 2006, as well as from the FBI interrogations on Guantanamo Bay in early 2007 that did not employ the CIA’s “enhanced interrogation techniques.” Prosecutors contend that the 2007 statements were voluntary and intend to introduce them at trial.

Earlier this week, Gary Sowards, the lead lawyer for lead lawyer for Khalid Shaikh Mohammad, argued that his client is entitled to information from the “percipient witnesses” to the FBI interrogations conducted in January 2007. For several minutes, Sowards recounted the treatment Mohammad endured prior to his arrival on Guantanamo Bay. Sowards told McCall the “government-sponsored torture” at CIA black sites included “anal rape” in the form of unnecessary rectal procedures and intense sleep deprivation among other forms of abuse over three-plus years of incommunicado detention.

“That is the situation he found himself in when the FBI agents approached him,” Sowards said.

Sowards said that a memorandum of the January 2007 interrogations prepared by FBI Special Agent Frank Pellegrino, who questioned Mohammad, was insufficient to learn the circumstances and “actual substance” of the sessions.

“Not the summaries, not the impressions, but actually what was asked and what was said,” Sowards argued.

He added that the government’s own pleadings acknowledge that 30 witnesses, including 22 FBI Special Agents, watched Mohammad’s interrogations from a remote room in the Guantanamo Bay detention facility. Sowards said that some of the witnesses must have noted “their impressions” and that the judge should order the prosecution “to make a good-faith effort to search" for this evidence.

Among those present on Guantanamo Bay in 2007 was prosecutor Robert Swann, who defended the government's position Monday. Swann told McCall that he was not in the room during the interrogation but watched Mohammad being brought into “the interview area.”

“I wanted to see what a terrorist looked like,” Swann said. “And, quite frankly, I was disappointed.”

Swann also disputed the “anal rape” characterization.

“He was rectally hydrated because when he was first picked up he wouldn't drink enough water and they were concerned about him,” he said.

Swann argued that the government has provided all discovery related to the FBI interrogations, which includes Pellegrino’s memo along with regular reports on the detainees made by staff at the detention facility.

“There is nothing else,” Swann said. He added that defense lawyers will have the chance to examine Pellegrino on the stand.

Pellegrino has been slated as a possible witness for the three-week November hearing as defense teams move forward with their motions to suppress the FBI statements, which the government has called its most critical evidence in the case. However, lawyers said plans for a witness-intensive November may not come to fruition as McCall familiarizes himself with the record.

The judge’s interest in getting up to speed explains, in part, the limited public court time in this session, his first. Public court was held for just two days in the first week and one day in the second. However, McCall met privately with four defense teams in ex parte sessions to hear presentations on their theories of defense. (The team for al Hawsawi did not participate in light of Ruiz’s departure.) McCall also heard an ex parte presentation from the prosecution on discovery matters.

The government has provided the defense teams with approximately 600,000 pages of discovery in the case. Close to 21,000 of those pages are information from the CIA’s interrogation program. Most of those documents have arrived to the defense teams in substitute or summarized form rather than original documents in a process based on the Classified Information Procedures Act, or CIPA, which is used in federal courts. Prior judges have approved the substitute evidence when convinced by the government that it meets the legal standard of putting the defense teams in substantially the same position as if they had the original classified evidence. At least two of McCall’s predecessors have sent proposed substitute evidence back to the government for failing to include enough detail.  

In court, lawyers refer to the substitute-and-summarized evidence system as the “505 process” for its place in the list of commission rules. Defense lawyers and prosecutors differ sharply on whether the 505 process related to the CIA interrogation program has largely played itself out. Defense lawyers often point out that they have received just a tiny fraction of the six million pages of information that went into producing the Senate’s report on the CIA program, which is classified and thus far off limits to the defense teams.

Prosecutors contend they have met their discovery obligations. In the military commissions, a judge’s 505 ruling approving substitute evidence is not subject to a motion for reconsideration. However, whether a pending discovery motion is considered new or an attempt at reconsideration may be in the eye of the beholder if it can claim to be based on new facts or developments in the litigation – another regular point of contention between the two sides.

McCall in late August also added a virtual annex to the logistically difficult Guantanamo courtroom. He designated a remote hearing room in the Washington, D.C., area to be “an extension to the well of the courtroom” for participants who may be unwilling or unable to travel Guantanamo Bay. Over the last two weeks, multiple teams had staff participating from the remote site, which allows for real-time communications between the site and the courtroom.

Alka Pradhan, a civilian lawyer for al Baluchi who was on the Naval Base during the first week, was the first to argue from the remote site on Monday. Pradhan said after the hearing she was “encouraged by our ability to conduct relatively fulsome” arguments from the site.

“While we’re still working out the boundaries of the technology, I have a clear line of communication with my team and client in the courtroom at Guantanamo,” Pradhan said. “I also had no trouble seeing or hearing the military judge from the podium in the RHR [Remote Hearing Room].”

She added that her team is concerned “about Confrontation Clause issues at trial if the intention is to continue its use beyond pretrial proceedings.”

In court Monday, Sowards told McCall that his team would not be using the remote facility because of “communications and security issues.” Lawyers for Mohammad did not immediately respond to emailed questions asking for elaboration or if the team would consider using the site for the November hearing.

The site is expected to have much greater use next week with the resumption of pretrial proceedings in the military commission for Abd al Rahim al Nashiri, who is charged with planning the bombing of the USS Cole in Yemen in October 2000. Both lawyers and witnesses are planning to participate from the facility over the next two weeks, in addition to those who will be present in the Guantanamo courtroom.

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.