The hearings for United States v. Mohammed, et al. resumed on Tuesday with the second day of examination of the defenses’ witness, Vice Admiral Bruce MacDonald, the former Convening Authority of the Guantanamo Military Commissions. Khalid Sheikh Mohammed and four other Guantanamo Bay detainees are charged with the planning and coordination of the 9/11 attacks. Similar to other weeks of hearings during the pre-trial phase, the five accused waived their right to attend after making their mandatory appearance on Monday. Defense Counselor Cheryl Bormann, whose technical problems from Monday prevented her from questioning Adm. MacDonald on Monday, began the examination on Tuesday.
Ms. Bormann resumed Tuesday’s battering of Adm. MacDonald’s qualifications to be the Convening Authority over a capital case. All present Guantanamo Bay Military Commission trials, under the supervision of the Convening Authority, are capital cases. Ms. Bormann reiterated that although Adm. MacDonald took the position with 23 years of legal experience including medical claims, he had no experience with murder or conspiracy cases as a Staff Judge Advocate. Adm. MacDonald’s career began as a Navy prosecutor and he served as Chief Defense Counsel while stationed in San Diego. Adm. MacDonald testified that although his legal advisors during his Convening Authority tenure had criminal law experience, he did not know the extent of their experience because he never asked them or even read any of their resumes.
Adm. MacDonald testified that he first realized he would be dealing with a capital case as Military Commission Convening Authority when he received the charge sheet for the Al-Nashiri case. Ms. Bormann drove home her point that Adm. MacDonald was thoroughly unqualified and deficient in his former role as Military Commission Convening Authority by showing that even upon learning that he would be responsible for capital cases neither he, nor any of his advisors, attempted to study the topic or sought assistance from expert advisors. Adm. MacDonald’s response was to remark that his advisors were experts at researching.
Ms. Bormann then questioned Adm. MacDonald about the advice he was given in preparing to testify. Ms. Bormann questioned Adm. MacDonald on whether he met with the prosecution prior to testifying. Adm. MacDonald acknowledged that he had to prepare for his testimony as a witness, but the week’s technical difficulties resurfaced as the video feed to the Admiral began to break up. Clearly frustrated, Judge Pohl ordered that the examination be postponed until after lunch when the problem could be fixed.
The Red Cross Prioritizes Its Information Secrecy Instead of Aiding the Mitigation of Punishment
In the meantime, Matthew MacLean from the International Committee of the Red Cross (ICRC) took the witness stand to argue that the ICRC should not be forced to disclose information sought by the defense, or even by the prosecution. The ICRC sends representatives to Guantanamo Bay to review the conditions of the prison and the treatment that detainees receive, out of concern for human rights violations occurring within the prison. Other than detainees’ lawyers, medical personnel, and authorized military and intelligence personnel, ICRC representatives are the only persons with access to some of the most restricted areas of the base, such as Echo II, where defense lawyers recently learned their attorney-client meetings were being monitored remotely. Thus, the ICRC possesses highly restricted and highly valuable information about the detainees and the prison’s conditions that the defense could use to mitigate the charges against the accused. With information obtained from the ICRC, the defense could present evidence of pre-conviction punishment suffered by the defendants in order to reduce the punishment that the detainees might face if convicted.
Mr. MacLean emphasized that the ICRC has historically been a neutral, impartial and independent organization. Mr. MacLean noted that the only way the ICRC can do what it does is because of its policy of confidential dialogue in its investigations, similar to the need for confidentiality in attorney-client communications in the interests of promoting candor among accused persons and their legal representatives. Mr. MacLean testified that failure to maintain the ICRC’s confidentiality would compromise their actions in the U.S. and worldwide. For legal support Mr. MacLean relied on legal rules governing the proceedings and customary international law. Judge Pohl seemed most interested in whether the ICRC could pick and choose what privilege it wished to waive or if it was an all or nothing deal. Mr. MacLean insisted that the ICRC could disclose some of its confidence voluntarily without entirely waiving their privilege.
Defense counselor Commander Walter Ruiz argued that he did not know any other way to obtain the information sought by the defense other than through the ICRC. Commander Ruiz put forth that no domestic law granted the ICRC this absolute privilege over their information and that the ICRC was relying on non-binding customary international law. But MacLean argued that the reason the ICRC relied on international law is because there is no domestic law on the issue. Defense counselor James Connell took a different route, agreeing with the ICRC in its interpretation of international law and its ability of selective disclosure; however, Mr. Connell argued that once the ICRC shared its information with part of the Department of Defense (DOD) it could then be shared with all of the DOD and therefore with the defense and prosecution. Defense counselor David Nevin focused on the precedent that, in death penalty cases, courts must give the accused everything in the possession of the government that may help exculpate the defendant. Ms. Bormann adopted all defense counselors’ arguments by agreeing that there was a way to work around the privilege, but disagreeing that the privilege was inviolable, and by echoing that the only way to obtain the information is through the ICRC.
In response, the prosecution waivered back and forth over whether the ICRC had an absolute right. Chief Prosecutor Brigadier General Mark Martins strongly requested that Judge Pohl stay any decision for four weeks to allow the ICRC to attempt to compromise with the defense counsel.
Even an Inexperienced Lawyer is More Experienced than Most Convening Authorities
After the video feed was restored during recess, Ms. Bormann concluded questioning Adm. MacDonald. Then prosecutor Edward Ryan cross-examined the Admiral. Mr. Ryan began by reestablishing Adm. MacDonald’s qualifications as Convening Authority. Adm. MacDonald testified that it was normal military practice to have a convening authority who was not a lawyer and that Adm. MacDonald’s legal experience actually was above the norm. Mr. Ryan then moved on to show that neither the Military Commission Act of 2009, nor its manual nor its rules, require the convening authority to be a lawyer. Likewise, court-martials, which the Military Commissions are partially based upon, do not require the Convening Authority to allow for mitigating circumstances. Mr. Ryan then went on to show that Adm. MacDonald had decided to allow the defense to present mitigating circumstances and granted them mitigating experts, two things he did not have to do.
Next Gen. Martins laid out the horrible details of the events of 9/11, that 2,200 people had died in the four-plane hijackings, and focused on the aggravating circumstance of the eight children who were killed, naming each one in a separate question to Adm. Mac Donald. Finally, Gen. Martins posited that the goal of beginning the trial within a reasonable timeframe would not have occurred had Adm. MacDonald granted defense another extension for mitigation using the defenses’ extension requests for an additional six to 12 months. Gen. Martins argued that even if Adm. MacDonald had granted the additional time it would not have been within his power to solve the attorney-client problems caused by the Joint Task Force’s protocols and surveillance equipment.
The questioning of Adm. MacDonald returned again to the defense, and the strain of the examination began to show in Adm. MacDonald’s answers and temperament. As each defense counsel asked Adm. MacDonald if he had already made up his mind on referral prior to receiving the defense’s mitigation Adm. MacDonald turned redder and redder in the face, each time denying that he had made an impartial decision. By 6:30 p.m. the questioning was over, and Judge Pohl happily told Adm. MacDonald that he was dismissed permanently, to which Adm. MacDonald gave a big sigh of relief.
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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