KSM Military Commissions Hearing Still Marred By Procedural Legal Issues

This image of Khalid Sheikh Mohammed was taken in July 2009 under an agreement with Guantanamo prison camp staff that lets Red Cross delegates photograph detainees and send photos to family members.

This image of Khalid Sheikh Mohammed was taken in July 2009 under an agreement with Guantanamo prison camp staff that lets Red Cross delegates photograph detainees and send photos to family members.

At 0900, United States v. Mohammed, et al., reconvened on Monday for another week of hearings in the pretrial phase in the Guantanamo-based prosecution of five men charged with coordinating the 9/11 attacks. Monday’s hearing centered on the testimony of retired Vice Admiral Bruce McDonald, the Convening Authority of the Guantanamo Military Commissions from March 2010 until his appointment expired in March 2013.  After the court room settled in, Presiding Judge James Pohl began to inform each of the accused of their right to void attendance of the hearings. However, before Judge Pohl made any progress on this procedural requirement the court was informed of the first of many IT issues:  Defendants Khalid Sheikh Mohammed and Ramzi Bin Al Shibh could not hear their interpreters and therefore would be unable to follow what others were alleging during their trial. Judge Pohl, seemingly frustrated, called for a short recess to address the issue.

When court resumed military defense counselor Commander Walter Ruiz began to question Vice Admiral Bruce McDonald via web cam. Civilian defense counselor Cheryl Bormann interrupted the proceedings, reporting that her laptop could still not access any files on the network and so she was not able to follow along with the proceedings. After Ms. Bormann explained that she had informed the IT team of the problem at 0800 and some time had passed, Judge Pohl offered her his copy of the needed files.

By 0930 the cross examination of Adm. McDonald began. Commander Ruiz started by attempting to connect the language of a protective order that was created by Adm. McDonald on  March 4, 2011 to the one created by Rear Adm. David Woods that currently regulates attorney-client communications. The first example Commander Ruiz gave was the language in both that stated both counsel and the detainees should speak the same language as announced in advance while conversing (although this practice has been is ended). The second example was that both protective orders allow for contemporaneous monitoring and recording of telephonic conversations between attorneys and their clients. The third example given was that both orders limit attorneys’ comment to the media by preventing them from stating that the reason they could not answer a certain question is because the information was classified. (They are only allowed to state that they cannot answer the question.) However, Adm. McDonald remained strong in his stance that although the language used in the two orders are similar, they are not the same.

Commander Ruiz then shifted his focus to the timeline of the saga of the protective order. After Adm. McDonald’s authority to create protective orders was called into question by defense counsel, Joint Task Force (JTF) was charged with the duty to create protective orders by the Department of Defense. However, JTF requested that Adm. McDonald first send a draft of a new protective order to them. Adm. McDonald testified that he did not read or write the draft but left the duty to his legal adviso,r Michael Breslin.

Finally, Commander Ruiz questioned Adm. McDonald on his defective referral of the capital murder charges. The questioning focused on the lack of time given to defense counsel – only 60 days – to utilize their mitigation experts. Commander Ruiz emphasized that a 2008 legal memo, that Adm. McDonald reviewed, indicated it takes longer than 90 days to obtain an expert, for him to do his job and to prepare the witness for court. Judge Pohl, however, seemed to dismiss this notion, calling it “comparing apples to oranges.” In response, Commander Ruiz switched on the focus to Adm. McDonald’s testimony from 2006, in which he stated that it was important to get the military commissions operational and that he could get the military commissions generated quickly.

Civilian defense counselor James Connell questioned Adm. McDonald next.  The Admiral testified that in his protective order the presumptive classification level was determined by the Original Classification Authority (OCA) and that information given by High Value Detainees was presumptively classified by OCA as Top Secret. Adm. McDonald further testified that in this case the OCA was the Central Intelligence Agency (CIA).  The information from the HVD could be submitted for declassification; however, this means that the information would lose protection under attorney-client privilege.

After a recess for lunch, Mr. Connell moved on to the definition of “contraband” under the protective orders. Adm. McDonald stated that he deems draft memos as “overbroad” under the definition of contraband. Then Mr. Connell addressed the definition of “information contraband,” which encompasses information of political events in any country. Here, Judge Pohl interrupted, saying he did not see the relevance of asking Adm. McDonald what he knew when it was Woods’ order which was in effect. Mr. Connell responded that he was just attempting to show how the privilege team operated.

The focus of Mr. Connell’s litigation shifted to Adm. McDonald’s response to defense complaints of the privilege team’s violations of attorney-client privilege. However, Adm. McDonald repeatedly answered that he had ordered the allegations to be looked into and believed that they had been addressed.

Next, civilian defense counselor James Harrington questioned Adm. McDonald and turned the focus of the defective referral motion to the qualifications of the Admiral. After Adm. McDonald testified he had not read all of the American Bar Association’s guidelines on capital cases, Harrington responded, “You came into this case, one of the most serious cases in American History, a death penalty case, never having been in one, and didn’t read the Guidelines?” In an attempt to save face, Adm. McDonald stated he had read the Guidelines outlined by the defense motions and his legal team had conducted research on the rest, but in the end they were just guidelines. After this, Harrington focused on the timeline of the referral date, then the lack of time he had with his expert to develop effective litigation, following the strategy of Commander Ruiz.

Ms. Borman was scheduled to question Adm. McDonald but with her IT issues unresolved, and still unable to access her laptop, her questioning was deferred until Tuesday.

Civilian defense counselor David Nevin then began his questioning.  Much like Mr. Harrington, Mr. Nevin focused on Adm. McDonald’s lack of experience in capital cases. Through Adm. McDonald’s testimony it was established that it had been 20 years since he had been on any defense counsel, that he was never a judge in a capital case, never had presided as a convening authority on a capital case, never studied capital case law on his own and that all this was true when in April 2012 he referred the current case to capital punishment. With this background, Nevin asked why the limit of 60 days was chosen by Adm. McDonald to submit the defense’s mitigating circumstances. Adm. McDonald responded, “nothing in particular” – it was a mix of common sense and past practice by convening authorities. Mr. Nevin then pointed out that when Adm. McDonald had testified it took him two to three months just to read the referral binders, not to draft or organize the information held in them. Adm. McDonald appeared to be very flustered, and perhaps embarrassed at this point, but was shortly relieved from questioning until tomorrow.

By the end of the day the defense team had clearly established a credible questioning of Adm. McDonald’s resume. However, most of the other questions relating to the protective order seemed to be made in anticipation of other witness statements such as that of Adm. Woods. Further supporting this speculation, at the end of the day, Commander Ruiz informed the court he would be formally requesting a witness from the CIA, in addition to Michael Breslin and other legal advisors to Adm. McDonald.

Ryan Gallagher, a rising third-year student at Seton Hall Law School, is a Fellow for the law school’s Center for Policy & Research. Seton Hall Law has been granted NGO observer status at the military tribunals in Guantánamo.

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