The WaPo reports that Judge James Pohl has just severed Ramzi Bin al-Shibh from 9/11 trial, creating two 9/11 trials. He did so for two reasons: because he could not quickly resolve whether the FBI investigation into defense attorneys has compromised his representation, and because the court has not yet determined whether he is competent to stand trial.
Army Col. James L. Pohl said the court needs to resolve whether Binalshibh has the mental capacity to participate in a trial and whether he needs another lawyer because of a potential conflict of interest after theFBI questioned members of his defense team.
These issues “are not expected to be completed in the near term,” Pohl said in his order.
While both issues are emblematic of the clusterfuck that is Gitmo, I’m particularly struck by the uncertainty whether bin al-Shibh is competent.
Earlier this year, prosecutors asked the judge to evaluate Binalshibh after he repeatedly interrupted court proceedings and had to be removed because he ignored warnings to stop the disruptions. However, neither the government nor Binalshibh’s lawyer argue that he is mentally incompetent.
“The judge’s decision today seems to indicate that the issue of competency is still open,” [bin al-Shibh lawyer James] Harrington said. “We have to clarify that with him.”
After all, the entire point of the torture program was to break these men. They succeeded in doing so with bin al-Shibh (that is confirmed by other sources). But now they can’t try him — it sounds like this severance is probably a tacit admission he can never stand trial, for a variety of reasons.
I would much prefer civilian justice, and have said so numerous times. But this Kangaroo Court in Gitmo has sure succeeded in demonstrating all the problems with the US counterterrorism approach.
Carol Rosenberg reports the very big news that Judge James Pohl has ordered the government to turn over to Abd al Rahim al-Nashiri’s lawyers top secret information on the torture their client endured.
The judge’s order instructs prosecutors to provide nine categories of closely guarded classified CIA information to the lawyers — including the names of agents, interrogators and medical personnel who worked at the so-called black sites. The order covers “locations, personnel and communications” as well as cables between the black sites and headquarters that sought and approved so-called enhanced interrogation techniques, the two sources said.
It does not, however, order the government to turn over Office of Legal Counsel memos that both blessed and defined the so-called Torture Program that sent CIA captives to secret interrogations across the world after the Sept. 11, 2001 attacks — out of reach of International Committee of the Red Cross delegates.
“It’s a nuclear bomb that may shut down the case,” said one person who read the order and is not a part of the Cole case.
I find Pohl’s decision to order this in Nashiri’s case whereas he has not made equivalent orders in the 9/11 case of particular interest. Perhaps he will once public releases back WaPo’s report that CIA subjected Ammar al-Baluchi to ice drowning not sanctioned by any DOJ memo.
But in Nashiri’s case, we have reason to believe that CIA realized right away they had broken the law with Nashiri. His treatment generated the referral to CIA IG John Helgerson. And the only technique John Yoo rejected was mock burial, which may have implications for the mock execution Nashiri endured.
I’m also quite interested in two other details. First, there are conflicting reports about how long Nashiri was subject to torture in in the UAE. I’m curious if this is part of the chronology at issue.
And finally, remember that even Papa Dick Cheney and his daughter don’t claim waterboarding worked with Nashiri. We’ve never learned why not, though there are hints he may have had medical problems with the waterboard. Which makes Pohl’s order about the doctors present particularly interesting too.
Carol Rosenberg, Jason Leopold, Charlie Savage, and Ryan Reilly all have updates on the Gitmo Military Commission’s efforts to pretend they control the proceedings of the court room, and not someone like John Brennan or the CIA.
All of them note that Judge James Pohl promised that Monday’s censorship won’t happen again. Savage adds an interesting detail: the suggestion that the censorship represented a disagreement between the Military Commission and the censor–presumed to be the CIA.
“This is the last time,” Colonel Pohl said, that any party other than a security officer inside the courtroom who works for the commission “will be permitted to unilaterally decide that the broadcast will be suspended.”
He added that while some legal rules and precedents governing the military commissions were unclear, there was no doubt that only he, as the judge, had the authority to close the courtroom. While officials may disagree about whether classified information had been improperly disclosed, he made clear he would not tolerate any outside party having control over a censorship button in his case.
“The commission will not permit any entity except the court security officer to suspend the broadcast of the proceeding,” Colonel Pohl said. “Accordingly I order the government to disconnect any ability of a third party to suspend broadcast of the proceeding, and I order any third party not to suspend proceedings.” [my emphasis]
This actually raises an interesting parallel with Article III Courts. There, DOJ has repeatedly insisted that courts have no authority to determine what is classified or not. On rare occasions, a Court will overrule the government.
This conflict appears to arisen from the same kind of disagreement, one made stark because of the censorship button. But ultimately, the Executive Branch was again insisting that only it can say, legally, what counts as classified.
Rosenberg raises a parallel issue: claims by DOJ lawyer Joanna Baltes, who oversees classification issues, that the Original Classification Authority in question was part of the Military Commissions. Pohl disagrees.
“An OCA does not work for the commission,” he said, the Pentagon term for the war court, “and has no independent decision-making authority on how these proceedings are to be conducted.” On Tuesday, civilian 9/11 prosecutor Joanna Baltes cast the role of the OCA as an approved extension of the military commissions.
“The OCA, original classification authority, reviews closed-circuit feed of the proceedings to conduct a classification review to ensure that classified information is not inadvertently disclosed,” she said in a note to the judge. “When the parties do press the mute button on the microphone, no audio is transmitted through the closed feed.”
Rosenberg raises one more important point: CIA screwed up during one of the first moments that the 40-second delay ordered by Pohl was in place.
Monday’s outside censorship episode occurred on the first day of proceedings after the judge formally approved the 40-second audio delay in the Sept. 11 trial, rejecting an American Civil Liberties Union argument that it transformed a live court into a “censorship chamber.”
Boy, the CIA sure wasted no time in validating the ACLU’s concerns?
As Reilly lays out, the incident has only raised the concerns of the Defense Attorneys.
“Who is pulling the strings? Who is the master of puppets? We have more questions than we have answers,” said Walter Ruiz, an attorney for Mustafa al Hawsawi, an alleged al Qaeda money courier.
David Nevin, a lawyer for KSM, said it would “open a number of questions” if indeed someone based in the U.S. had the ability to cut off the feed of the courtroom facility. Martins had declined to say whether the secret censor was based either in the U.S. or was located somewhere on Guantanamo Navy Base.
James Harrington, a lawyer for Ramzi Binalshibh, said a federal judge would have never put up with someone else having the ability to cut off access to his courtroom.
“I have been practicing for over 40 years in federal courts in the United States, if this had happened before any federal judge that I know of, this proceeding would have been stopped. There would have been hell to pay. Hell to pay,” Harrington said.
It’s going to be very hard to unring this bell, not matter how assiduously General Mark Martins tries to establish its independence (and last week’s fight over the inclusion of conspiracy charges had already damaged that).
Carol Rosenberg in the Miami Herald and Peter Finn in the Washington Post recount a very strange sequence of events during yesterday’s proceedings in the Guantanamo military commission that is attempting once again to “try” the group of five prisoners that includes Khalid Sheik Mohammed for their conspiracy in bringing about the 9/11 attacks. As Rosenberg recounts, the judge was enraged when a portion of the proceedings was censored by someone outside the courtroom. The judge appeared to have no knowledge beforehand that anyone besides himself or his security officer could control the censoring process:
Someone else besides the judge and security officer sitting inside the maximum-security court here can impose censorship on what the public can see and hear at the Sept. 11 trial, it was disclosed Monday
The role of an outside censor became clear when the audio turned to white noise during a discussion of a motion about the CIA’s black sites.
Confusion ensued. A military escort advised reporters that the episode was a glitch, a technical error. A few minutes later, the public was once again allowed to listen into the proceedings and Army Col. James Pohl, the judge, made clear that neither he nor his security officer was responsible for the censorship episode.
“If some external body is turning the commission off based on their own views of what things ought to be, with no reasonable explanation,” the judge announced, “then we are going to have a little meeting about who turns that light on or off.”
Finn described the event as the action of an “invisible hand”:
Who controls what the public and reporters can see and hear at the military commissions at Guantanamo Bay, Cuba? Is there an invisible hand, unknown to even the military judge, that can switch off audio and video feeds?
Finn gives more details of the proceedings as the button was pushed:
David Nevin, one of Mohammed’s civilian attorneys, was discussing a defense motion to preserve any evidence from the secret overseas prisons where the defendants were held by the CIA. The motion had been declassified, but Nevin had barely gotten a sentence out when the audio feed to the media centers on base and at Fort Meade was smothered in white noise. Then the video of the courtroom was cut.
When the feeds were restored several minutes later, Judge James Pohl, an Army colonel, seemed perplexed as to not only why Nevin was censored but by whom. Pohl said he did not cut off the feed, and it did not appear that the court security officer who sits beside him did, either.
Rosenberg informs us that the judge was very upset:
But to court observer Phyllis Rodriguez, the judge appeared “furious” and “livid” when he realized that that outsiders had their finger on the censorship switch of his courtroom.
“It’s a ‘whoa moment’ for the court,” said Human Rights Watch observer Laura Pitter. “Even the judge doesn’t know that someone else has control over the censorship button?”
Both articles point to DOJ attorney Joanna Baltes offering to explain to Pohl in secret session how the censorship came about and it appears that Pohl intends to disclose who pushed the button if, as Finn states, “what happened could be explained in public”.
The event also upset the attorneys. As Finn reports, it prompted further concerns:
Nevin and other defense attorneys said they wanted to know whether there was some mysterious entity monitoring the proceedings — and whether that entity might be listening to communications between the lawyers and their clients.
Just who is responsible for this censoring? And, as Nevin speculates, is this same “invisible hand” also an “invisible ear” listening to his discussions with his clients?
This episode is yet another example of the folly of not trying these defendants in federal court. The military commission rules are an ever-changing mess where nobody, now apparently including the presiding judge, knows what is appropriate and what is not or even who determines what constitutes secret information. In a federal court, there never is a question that the judge controls all aspects of the proceedings.
Iran’s PressTV was highly entertained by the episode, citing both the “invisible hand” phrase and putting “open” into scare quotes in their lede paragraph about the session and its unexpected censoring:
During defense arguments in an “open” session of the US military trial of Guantanamo inmates, an ‘invisible hand’ suddenly cut off the audio-visual feed to the media, even mystifying the military judge.
It would appear that PressTV was laughing uncontrollably over this, as they attributed quotes from Finn’s Washington Post article to the New York Times, which, at the time of this writing, has not reported on the event.
At any rate, I will provide an update if an explanation from Pohl is forthcoming. That is, if I’m not too busy laughing at the irony of Iran being able to ridicule the US about censorship less than 24 hours after arresting a number of journalists for “consorting with hostile foreign news media”.
Update: The short answer to the question in the headline appears to be “no”. From tweets by Carol Rosenberg “Pohl on who controls button: “We’re getting to a line here of what’s public and what’s security. … I’m not sure what witnesses to call.”” and “Judge Pohl made clear that whoever hit the censorship button yesterday should not have, but did not clarify or describe who did it.” and also “#KSM attorney Nevin is asking for “courtesy” of understanding who’s listening in on hearings. Private talks between lawyer and client too.”
Update 2: More tweets from Carol Rosenberg lift the veil just a bit: “Now the Justice Dept secrecy expert, Joanna Baltes, has given judge and defense lawyers a piece of paper that says OCA reviews the feed.” and “OCA= Original Classification Authority, as in for example the CIA on interrogation techniques and black site program.”
The guy who covered up CIA’s torture, Jose Rodriguez, worries that Khalid Sheikh Mohammed might give a speech during the course of his military commission.
Although he acted defiantly in court, Rodriguez said KSM would like nothing more than a forum to preach radical Islam.
“This is a process that will continue for a long time,” Rodriguez said. “I have heard he may plead not guilty, and if he does, he’ll use the [legal] process as his platform . . . to talk about his jihadist beliefs.”
“It seemed to us that he was looking for a platform from which he could spout his hatred for all things American, and a trial would certainly present that opportunity,” Rodriguez writes. “It strikes me as more than a little ironic that several years later, Attorney General Eric Holder almost granted KSM his wish.”
Ironically, Rupert’s rag decided to plug these Rodriguez fears the day after KSM and his co-defendants tied up the military commission in knots not by speaking, but by remaining silent.
Judge [James] Pohl turns to Mohammed’s attorneys and his right to counsel. Mr. Mohammed, he says, pursuant to the Manual for Military Commissions, you are today represented by two military lawyers, Derek Poteet and Jason Wright, your detailed counsel. Do you understand this?
There’s a pause – the first of many, as we’ll soon see – as the court and counsel wait for the defendant’s responds. KSM doesn’t give one, and Judge Pohl notes as much. Very well, he continues, detailed counsel will be provided to you.