FW: Guantanamo Update

From:hms@sandlerfoundation.org To: john.podesta@gmail.com, sdaetz@sandlerfoundation.org, james@sandlerfoundation.org, ses@sandlerfoundation.org Date: 2008-12-10 16:26 Subject: FW: Guantanamo Update

________________________________ ________________________________ Please share with Herb.. just got back from gitmo last night.. ________________________________ ________________________________ Dear Colleagues, I just arrived off an airplane from Gitmo last night and thought you would appreciate an update on what happened down there this week. No doubt you have seen the many press reports, but I thought I would try to piece it together for you and let you know where it all stands from my perspective. First, I would point out that our struggle to shut Gitmo and shutter the military commissions is far from over, nor is it a fait accompli. That's the good news and the bad news. You probably read in the papers that all five defendants expressed an interest in entering guilty pleas in the 9/11 case. This wasn't news to us, as they essentially expressed that viewpoint from the very first hearing in June of this year. What did change was that the defendants have been meeting as a group since the last hearing. They have recently asked to have all pending law and evidentiary motions withdrawn and that they be allowed to proceed to enter guilty pleas and be sentenced to death. All five men submitted a handwritten motion to the Military Judge on November 4, 2008 (Election Day) stating that this is how they would like to proceed. The process for how this might happen is not clear from the press clips I looked at last night. First, the defendants have to formally enter guilty pleas, which they did not for reasons I will explain below. Second, the Military Judge has to accept the pleas, but only after an extensive round of questioning and a review of the evidence that supports the entry of those pleas. In normal courts, this process is known as "allocution" and even in these fundamentally flawed commissions, it is hard to imagine any judge accepting guilty pleas in capital cases without undertaking this second stage with rigor and care. Third, a panel of 12 jurors (most likely military officers) would have to be convened, and they would have to render a unanimous decision in order for a death sentence to be applied. None of this happened this week. Why? First, two of the five defendants do not represent themselves. These two were not allowed to go pro se, as there were questions about the intentions and their competency to knowingly and voluntarily waive their right to counsel. One of them, Ramzi bin al Shibh, had been placed on psychiatric medication against his will. The issue of competency is also being raised in the case of Mr. al Hawsawi. For these two defendants, they are still represented by JAG lawyers and by civilian counsel from the John Adams Project. In fact, Jeff Robinson from our John Adams Project did an outstanding cross-examination of Brig. General Hartmann on the unlawful command influence motion that did not garner any press attention. Legal and evidentiary motions on behalf of bin al Shibh and al Hawsawi have NOT been withdrawn and we expect continued back and forth with the government until issues of their competence have been resolved. Only then could Judge Henley allow them to represent themselves and move to the next stage of entering pleas. Second, three of the five defendants who do represent themselves (although we are still stand-by counsel for all three) changed their mind from the morning to the afternoon on Monday as to whether they wished to formally enter guilty pleas this week. Ironically, there is a conflict between the rules and the discussion section of the Military Commissions Act that leaves it unclear as to whether the death penalty could attach in an instance where guilty pleas are entered. In other words, if they plead guilty it is not clear they could be executed ("martyred" in their minds). When Mr. Mohammed learned this from our lawyers at lunch, he did a turn-around and said that he was not willing to enter pleas today until he gained clarity from Judge Henley on this issue. Third, after our John Adams lawyers conferred with the 3 pro se defendants at lunch and explained that if they proceed separately without resolution of the other two who are still represented by counsel, the five cases would not continue to proceed together. The idea that moving ahead on Monday on three pleas would essentially leave their other two "brothers" (as KSM put it) behind, made them reconsider their decision, much to the consternation of the prosecutor and the Military Judge. That's when we all breathed a sigh of relief for now. Finally, our status as lawyers for all five is a fluid situation. As I explained, two of the five are still directly represented by the JAG and John Adams Lawyers. KSM did fire his JAG lawyer, Prescott Prince, but by the afternoon he had welcomed ACLU lawyer David Nevin back to the counsel's table, was conferring with him, and receiving input from him. As in many capital cases, lawyers often encounter this on-again/off-again dynamic with clients -- even more so with those who have been tortured and waterboarded. The fact is Mr. Nevin and KSM have developed the best attorney/client relationship of anyone on his team, and they are meeting later this week in Gitmo to figure out next steps. This is far from over. Guilty pleas have not been entered or accepted, and we are a long way off (I hope) from sentencing. What we have done by providing expert civilian defense counsel is ensure that the worst case scenario (pleas, entering of pleas, and sentencing) did not happen in the remaining days of the Bush administration. Without the ACLU and NACDL's involvement, I can immodestly speculate that that almost certainly would have happened this week. What happens next? Well, who can ever say about Gitmo. The Judge has set up a briefing schedule on the above issues that requires the last response motion from us on January 4, 2008. Whether he sets up a hearing to hear the pleas, accepts them and sentences the defendants before inauguration seems like a long-shot, but no one can say with certainty. What is most likely is that this is all dropped in the lap of a new administration. Putting the pressure on the Obama administration to shut down Gitmo and the military commissions right away as he promised is our top priority, since the further this process goes, the harder it may be to stop it entirely. There is a good Washington Post piece from Monday that I am attaching below that explores this conundrum for the Obama team. Notice the "no comment" from the transition team. We are grateful for your continued support and interest in this work. What was most difficult for all of us was hearing the 9/11 family members who were down there say that they were proud of America and the way in which the defendants were being afforded justice. They are earnest, well-intentioned people who suffered a great loss, and I can only imagine the mix of emotions that they were feeling as they were sitting in the courtroom alongside of us. But the fact is that their grievous loss and hope for justice does not fix the fact that this Commission process is NOT the best example of American justice, as it is a system that allows hearsay, coerced confessions and evidence gleaned from torture and waterboarding. There are other 9/11 family members who share our views and you can find statements from some of them on our website - http://www.aclu.org/safefree/detention/34775res20080403.html. Nothing changes the basic fact that this system changed the rules of tried-and-true systems of justice (whether civilian or military), and while the military commissions may look, smell and feel like a real court of law, they are not. No court of law would allow individuals who were tortured with the express approval from the top levels of our government to be put to death when their mental health status of the accused is still in question. That's why we're sticking with this case, and that's why we appreciate your continued support. Be well, and have a great holiday if I don't talk to you before then. Anthony http://www.washingtonpost.com/wp-dyn/content/article/2008/12/08/AR200812 0801087_pf.html Five 9/11 Suspects Offer to Confess But Proposal Is Pulled Over Death Penalty Issue By Peter Finn Washington Post Staff Writer Tuesday, December 9, 2008; A01 GUANTANAMO BAY, Cuba, Dec. 8 -- Five of the men accused of planning the Sept. 11, 2001, attacks said Monday that they wanted to plead guilty to murder and war crimes but withdrew the offer when a military judge raised questions about whether it would prevent them from fulfilling their desire to receive the death penalty. "Are you saying if we plead guilty we will not be able to be sentenced to death?" Khalid Sheik Mohammed <http://www.washingtonpost.com/ac2/related/topic/Khalid+Shaikh+Mohammed? tid=informline> , the self-proclaimed operational mastermind of the attacks, asked at a pretrial hearing here. The seesaw proceedings Monday raised and then postponed the prospect of a conviction in a case that has become the centerpiece of the system of military justice created by the Bush administration. A conviction would have capped a seven-year quest for justice after the 2001 attacks, but the delay in entering pleas will probably extend the process beyond the end of the Bush presidency. The willingness of the defendants to "announce our confessions and plea in full," according to a document they sent to the judge in the case, Army Col. Stephen Henley, potentially bestows some hard decisions on the incoming administration. President-elect Barack Obama <http://projects.washingtonpost.com/congress/members/o000167/> has vowed to close the Guantanamo Bay <http://www.washingtonpost.com/ac2/related/topic/Guantanamo+Bay?tid=info rmline> detention facility, but he has not indicated whether he will retain the military commissions that may be close to securing the death penalty for suspects in the worst terrorist attacks in U.S. history. If the judge ultimately accepts guilty pleas, the ability of the Obama administration to transfer the case to federal court -- a desire expressed by some Obama advisers -- might be constrained, said Anthony D. Romero, executive director of the American Civil Liberties Union <http://www.washingtonpost.com/ac2/related/topic/American+Civil+Libertie s+Union?tid=informline> . That could mean the new administration may have to oversee an execution resulting from a process that many Obama supporters and legal advisers regard as deeply flawed. A guilty plea, however, could shield the Obama administration from what some legal experts view as potentially hazardous proceedings in federal court, where evidence obtained by torture or coercive interrogation would not be admitted. CIA Director Michael V. Hayden <http://www.washingtonpost.com/ac2/related/topic/Michael+Hayden?tid=info rmline> has acknowledged that Mohammed was subjected to waterboarding, an interrogation technique in which a prisoner is restrained as water is poured over his mouth, causing a drowning sensation. Although legal analysts say Mohammed and his co-conspirators would probably be convicted of terrorist offenses, the ability to obtain a capital conviction may have been undermined by the use of practices that have been criticized as torture. "It is absurd to accept a guilty plea from people who were tortured and waterboarded," said Romero, who is observing the proceedings. He said in an interview that the Obama administration should clearly signal that it intends to abolish the military commissions as well as the detention system, so the judge and other Pentagon officials will not move forward with the proceeding. The Obama team declined to comment Monday. Offering to plead guilty along with Mohammed were Ramzi Binalshibh <http://www.washingtonpost.com/ac2/related/topic/Ramzi+Binalshibh?tid=in formline> , Mustafa Ahmed al-Hawsawi, Tawfiq bin Attash and Ammar al-Baluchi, also known as Ali Abdul Aziz Ali. Baluchi is a nephew of Mohammed. "Our success is the greatest praise of the Lord," Mohammed and the four others wrote of the attacks in a document they sent to Henley last month. Binalshibh and Hawsawi have not yet been judged competent to represent themselves, and Mohammed and the two others said they would defer a decision on a guilty plea until all five could act together. But the motivation behind withdrawing the plea offer appears to be the prospect of execution, lawyers here said. Mohammed has expressed a desire to die as a martyr, yet Henley questioned whether a death sentence is permissible without a verdict by a military jury. The Pentagon <http://www.washingtonpost.com/ac2/related/topic/The+Pentagon?tid=inform line> , in announcing formal charges against the five in May, said each was accused of "conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and providing material support for terrorism." "We all five have reached an agreement to request from the commission an immediate hearing session in order to announce our confessions," the defendants said in their letter, parts of which Henley read aloud Monday. They said they were not under "any kind of pressure, threat, intimidations or promise from any party." The five wrote the note Nov. 4 after meeting here that day to plot legal strategy, the court heard. The men, who are being held at a secret facility on the military base here, were allowed to meet together for at least 27 hours in recent weeks, a prosecutor said. Outside the courtroom, the defendants' civilian attorneys, who were organized by the ACLU and the National Association of Criminal Defense Lawyers, said they had considered walking out on the proceeding if the judge accepted guilty pleas. "This show trial is nothing more than an effort to blackmail" Obama and limit his options, said Tom Durkin, a civilian attorney for Binalshibh. Prosecutors rejected any suggestion that there was a politically motivated rush to justice. "There are some decisions that are unique to the accused; the first of them is how he pleads," said Army Col. Lawrence Morris, chief military prosecutor. "The government has nothing to do with that decision." Attending the Guantanamo Bay proceedings for the first time were relatives of people killed in the Sept. 11 attacks. The Defense Department <http://www.washingtonpost.com/ac2/related/topic/U.S.+Department+of+Defe nse?tid=informline> chose the relatives of five victims by lottery and arranged for them to travel to the U.S. naval base on the eastern tip of Cuba, a Pentagon spokesman said. "It's clear to me they know what they did and they are willing and want to plead guilty," said Hamilton Peterson of Bethesda, who lost his father and stepmother on United Airlines Flight 93 in Pennsylvania. "I think [Obama] will come to the realization that this is a very appropriate and fair venue." The families were divided on the death penalty. Peterson and others said it was appropriate. But Alice Hoagland, who lost her son Mark Bingham on United Flight 93, said the defendants "do not deserve to be dealt with as martyrs." Henley asked three of the defendants representing themselves -- Mohammed, Attash and Baluchi -- whether they were willing to enter guilty pleas. All said Monday morning that they were ready to do so. Henley said he would not be able to accept pleas from Binalshibh and Hawsawi because the court has yet to hold hearings on whether they are mentally competent to represent themselves. An attorney for Binalshibh, Navy Cmdr. Suzanne Lachelier, objected to filing the Nov. 4 document on behalf of her client, saying he had "been permitted to go to this meeting" and others "without notice to me." When the court resumed after a late-morning break, Mohammed, joined by Attash and Baluchi, changed tack and said he would not enter a plea until a decision was made on Binalshibh and Hawsawi. Lawyers had told them during the break that a plea could mean that they might not receive the death sentence and that it could cut off their two co-conspirators, according to a source familiar with the conversation. "I want to postpone pleas until decision is made about the other brothers," Mohammed said. The military court was told in an earlier hearing that Binalshibh, an alleged liaison between the hijackers and al-Qaeda <http://www.washingtonpost.com/ac2/related/topic/Al+Qaeda?tid=informline > 's leadership, is being administered psychotropic drugs. And an attorney for Hawsawi, a Saudi and alleged financier of the attacks, said Monday that he had requested a mental competency hearing for his client. Anticipating future pleas, Henley said Monday that he wanted a briefing from the prosecution and a defense response by Jan. 4 on whether he could accept guilty pleas in a death penalty case under the language of the military commissions statutes, which suggest that a death penalty could arise only from a decision by a military jury. "The fact that the judge and the prosecution and the defense clearly don't know the consequences of a guilty plea shows the sorry state of these commissions," said Diane Marie Amann, a professor at the University of California at Davis <http://www.washingtonpost.com/ac2/related/topic/University+of+Californi a-Davis?tid=informline> , who is observing the proceedings here for the National Institute of Military Justice. The prospect of a guilty plea and a possible death sentence would represent a major victory for the Bush administration, which had given up on bringing Mohammed and the others to trial before leaving office Jan. 20. In the seven years since the Guantanamo Bay detention camp opened, only three people have been convicted, one as a result of a plea agreement. Two of those found guilty have been returned home. None of the "high-value" detainees transferred from CIA <http://www.washingtonpost.com/ac2/related/topic/Central+Intelligence+Ag ency?tid=informline> custody to Guantanamo in 2006 has gone to trial. Human rights groups said the judge should hold a full hearing to determine that any pleas are free from coercion. "In light of the men's severe mistreatment, the judge should require a full and thorough factual inquiry to determine whether or not these pleas are voluntary," said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch <http://www.washingtonpost.com/ac2/related/topic/Human+Rights+Watch?tid= informline> . Daskal also said Mohammed's possible influence over the others should be explored. Baluchi, a Pakistani accused of having been a key lieutenant of Mohammed, told a military court this year that he was an ordinary businessman who had no knowledge of the Sept. 11 plot. And at a hearing in June, Army Maj. Jon Jackson, the military lawyer for Hawsawi, said his client was subjected to "intimidation by the co-accused" during courtroom conversations. But the defendants insisted Monday that there was no coercion. "All of these decisions are undertaken by us without any pressure or influence by Khalid Sheik," Baluchi told the judge Monday. Mohammed, born in Kuwait to Pakistani parents, was captured in Pakistan in March 2003 and held in secret CIA prisons for three years before President Bush <http://www.washingtonpost.com/ac2/related/topic/George+W.+Bush?tid=info rmline> ordered the transfer of 14 high-value detainees to Guantanamo Bay in September 2006. Mohammed told a military hearing in March that he planned the attacks. "I was responsible for the 9/11 operation, from A to Z," Mohammed said. On Monday, Mohammed injected humor into his statements. Citing delays in getting documents from the defendants to the judge, he asked whether the commissions are "using carrier pigeons." In a final outburst as court ended Monday evening, Binalshibh, speaking in Arabic, said that because it is a Muslim feast day, he wanted "to send my greetings to Osama bin Laden <http://www.washingtonpost.com/ac2/related/topic/Osama+bin+Laden?tid=inf ormline> and reaffirm my allegiance. I hope the jihad will continue and strike the heart of America with all kinds of weapons of mass destruction." Staff writer William Branigin and staff researcher Julie Tate, both in Washington, contributed to this report. (c) 2008 The Washington Post Company