9/11 PRE-TRIAL HEARINGS – UPDATE: DAY 3 / NAVAL STATION GUANTANAMO BAY, CUBA

November 10, 2024

Today’s rare Sunday session commenced at 1 PM. The VFM’s attended brunch in court attire and were bussed to the courthouse by 12:45 PM.

Present in the courtroom were the lead prosecutor, Clayton G. Trivett and his team, three of the defense lawyers and 2/3 of their defendants; Gary D. Sowards, (Khalid Shaikh Mohammad / KSM), Matthew Engle (Walid bin ‘Attash), and Walter Ruiz (Mustafa Al Hawsawi- not present), and Ali Aziz Ali aka Ammar al Baluchi. Present in the Remote Hearing Room (RHR) in Washington D.C were Jeffrey D. Groharing, lead Prosecution counsel, CoL. Joshua S. Bearden and Dr. Michael Welner.

Housekeeping issues included an email received by the Office of Military Commissions re: the prosecutions appeal on Judge McCalls ruling last Wednesday of the pre-trial agreements (PTA’s) for the three defendants, asking to defer the pleas. Mr. Trivett asked that the military judge postpone talks of the pleas, suspend all dates set for the pleas to give time for the government’s response to the PTAs and recommendations impending their appeal, and to make a decision on this today.

Mr. Trivett said that the chief prosecutor, Adm. Aaron C. Rugh, instructed him to prepare a review through a writ of mandamis to vacate the PTA’s so the government can appeal the judges surprise ruling last Wednesday in order to reinstate the PTAs to the U.S. Court of Military Commissions Review (CMCR). The judge was potentially going to use week three of this session to hear at least one of the PTA’s from the primary defendant, KSM.

KSM’s attorney, Gary Sowards, argued, “everyone was surprised by the commissions decision,” and asserted “harm to the families in the back of the courtroom,” if to discontinue the PTA reinstatements. He asked the judge to continue moving forward with the pleas and to set a date. Sowers protested, “why can’t the judge come to a decision on one of the most important, complex, expensive case in history?” He continued to argue that the government cites no legal authority with our case! “The government usurping judicial ruling is legal weaponry in the arsenal of appellate court. Thousands of VRMs are waiting for what they decide.”

Mr. Sowards also stated that “the only contested issue is if the Secretary of Defense Lloyd Austin had the authority to push the convening authority (CA) aside, who had been given the authority to approve and enter the agreements to commute the death penalty. “This entitles Mr. Mohammad to have the right to return to square one and litigate this as a capital case.” And, “brings irreparable harm to Mr. Mohammad.”

As a VFM, it is troubling to hear the words “entitle” and “harm” as verbs acting on “Mr. Mohammad.”

After the Presidential inauguration, the Department of Defense Secretary and the Convening Authority will be removed and replaced with selected cabinet members. This will only further delay the case.

As has been the case since these hearings began in 2012, there are no easy answers, no clear and indisputable right way to proceed. Matthew Engle cites “unlawful influence” and “breach of agreement.” There is a provision in Hawsawi’s PTA agreement that if the government breaches the agreement, they get the benefit of de-deathing the case.” In other words, the possibility of capital punishment could never be appealed and applied. This punctuates two evils; Death of the proceedings, or death of the cases? Which to choose? End the proceedings and come to a finality in sentencing or keep the case alive in the highly politicized courts in perpetuity, resulting in no sentencing? At the end of the day, the accused will die. Guilty in sentencing to solitary confinement or not-guilty in present Club Fed detainment until their natural deaths. Checkmate.

At the end of the day’s session at 4:30 PM, Air force Col. Judge McCall made three decisions: 1. Cancel the third week of this session for counsel discussion over the PTA’s. So the the three PTAs will be presented in court tby he week of January 20th or sooner, maybe late December, early January. “I have no problem getting this done (for KSM) through the Christmas-New Year’s week.” He will begin to make phone calls to get these arrangements made. 2. For the two outstanding Temporary Standing Orders (TSOs) to go out, and a third put out tomorrow for the bin ‘Attash agreement. 3. Since Ali’s defense team and the government don’t want a petition of stay to effect progress of the three other PTA’s, therefore consider if the case needs to be severed from the others.

Clay Trivett stated that with this plan in place, he will not ask for the mandamis of stay for the three PTAs.

After a 2:00 PM twenty-minute break, Dr. Michael Welner continued with testimony regarding the defense’s motion to dismiss Ali’s confessions based on alleged torture while in CIA custody. Dr. Welner completed his analysis of Judicially approved medical summaries from Ali’s interrogation programming during 2005-2006 until he was transferred to Guantanamo Bay Naval Base Detention Center on September 6, 2006. Concluding statements referencing all interrogation sessions and medical examinations indicated two highlighted questions: 1. Did Ali show cognitive health issues with signs of pathology in regards to anxiety, depression or psychosis? 2. Did Ali indicate symptoms of PTSD behaviors?

Dr. Welner’s analysis of the summaries reveals that he was in good cognitive and physical health, has suffered no lasting effects from the RDI program and early EIT’s that affected cognition and functioning, and no fear-based anxiety. He was a cooperative, social, and intelligent person who shows signs of a history of ADHD and craved, if not demanded, excessive engagement with medical, intelligence and guard staff. Dr. Welner’s review of the reports from the period 2002-2006 indicate that all statements made by Ali in interrogation and debriefing sessions were thoughtful, true, and valid.

Court ended for the day at 4:30. War Court will commence tomorrow morning at 9:00 AM.

The families met for dinner at O’Kelly’s bar and grille, “The only Irish pub in a Communist Country.” We were entertained with a surprise bagpipe set of American and Irish tunes courtesy of a family member.

© Deborah Garcia, all rights reserved