9/11 PRE-TRIAL HEARINGS UPDATE: 2 BRIEFINGS WITH THE PROSECUTION – Guantanamo Bay Naval Station, Cuba

November 12, 2024: (Tuesday, 1:30-3:00 PM)

Lead Team Prosecutor, Clayton Trivett; Attorney, Nicole Tray; Chief of Litigation Support, Meghan Gentry

Tuesday, at 11:00 AM, Military Judge, Air Force Col. Matthew N. McCall, abruptly called to end the 53rd session of the 9/11 pre-trial hearings in Guantanamo Bay, Cuba, exuberantly bounding from the bench, with a wave, “See you in January!”

After family members left the courthouse, we met with the prosecution team following lunch to discuss Judge McCall’s decision to re-instate the plea deals and set a date for the first two weeks in January for entering the pleas. This has taken a couple of left turns this week, and the prosecution wanted our feedback on how we were feeling as well as Dr. Welner’s analysis of the camp 7 reporting D101 CSRT (Tribunals). There was a consensus among the families of exhaustion, confusion, and qualm over the un-countable political and litigation influences that keep the case of our murdered loved ones in a perpetual state of intermittent paralysis, especially with the new administration swearing in on January 20^th.

Everyone agreed that Dr. Welner’s testimony could not have gone any better, breaking down the defense’s mental health argument that they’ve built over the years. About a thirty-minute audio-video feed was presented to the court and gallery this morning exhibiting a conversation between Ali (AAA) (aka Baluchi) and another al-Qaeda prisoner, Ahmed Gailani. The audio was in Arabic, transcribed in English, and required rapid reading skills to fully grasp the conversation between the two al-Qaeda terrorists in Camp 7. We complained that the captions of the translations were small and difficult for observers to read in the gallery, which includes the VFMs (Victim’s Family Members).

Mr. Clayton Trivett asked what accommodations we would like to ask the court to improve. We requested larger screens in the gallery. “They need to do a better job of using the real estate on the screens,” commented a VFM. Mr. Trivett said he would request a larger monitor for the VFM’s in the gallery.

We also mentioned some of the issues we encountered with military personnel policing enforcement of gallery rules that had not been enforced to this date and felt inappropriate for our group, as follows: assigned seating that was to remain throughout the session; a seating chart with our names on it; no talking or whispering for which it became clear that we were being monitored on cameras by the MP; the soldiers assigned as VFM escorts for all activities through the week are suddenly not considered escorts for us. The MP announced that there must be one escort certified by Military Police (MP) standards for every ten people. We were a group of twelve total (9 VFM’s, 1 VWAP support person, and three Army VWAP reservist escorts. Since only one of our escorts fit this category, an escort assigned to the GAO’s and the press, positioned on the other side of the curtain, was assigned to watch over us as well. This meant that the curtain separating us from the NGOs and the press must be partially pulled back. A situation VFM’s are unaccustomed to, and one that makes myself particularly uncomfortable. “GTMO isn’t a 23-yr mission, it’s one mission played out 23 times,” said Mr. Trivett. He sided with us by expressing that rules keep changing for everyone. Attorneys and VFMs are not military personnel, however military rules are being placed on us, in a rigid manner.

Counsel discussed the highlights of the session and case and replied to questions.

The primary issues addressed:

1. Was Ali able to give a voluntary statement in 2007 during FBI interviews in the weeks after transfer to Camp 7 at Guantanamo Bay, Cuba?
2. Exploration of Bias
3. Why didn’t the defense cross-examine Dr. Welner?

Mr. Trivett explained that they were as surprised as we were that the defense did not cross-examine the witness. Apparently, the defense lead attorney for Ali, James Connell, informed Jeff Goharing (the prosecution attorney questioning Dr. Welner in the RHR), during the fifteen-minute morning break that he did not have any questions.

Why didn’t the defense challenge him?

Perhaps the defense believed that the Judge had already made up his mind and will suppress confession statements made by his client, Ali, before Dr. Welner took the witness chair. Mr. Trivett believes that this will probably occur. Dr. Hanrahan was supposed to be the defense witness but was never present. James Connell may have weighed that his counsel were not as well prepared and knowledgeable of the entire record, since thousands of pages were involved. Or were they weighing in that they don’t have a typical expert consultant to cross-examine the expert. “Their desire to get the litigation done, with this judge, may have led the defense team to conclude that they’re better off not asking this guy any questions. We don’t know where Ali’s head is and whether or not he is permitting them to respond… You can say whatever you want, but don’t ever say that what I said wasn’t voluntary, says Mr. Trivett. Ali is challenging his Resilience. He’s a very self-critical terrorist, a proud Jihadist.”

Dr. Welner is the most exciting witness we’ve had in this case. “Welner has presence, is captivating, and intelligent. We were all locked in. This makes it harder for the judge to suppress the statements.” He highlighted what was and was not backed-up in the record, and what his opinion of that was. The convergence of data argument. He pulled together data from a twenty-year record!

Regarding Pre-trial Agreements (PTAs):

The Chief Prosecutor, Rear Adm. Aaron C. Rugh, has requested counsel to seek a Writ of Mandamus. The Judge ruled that the SoD, Lloyd Austin, had no authority to revoke the plea deals. Austin wants the death penalty. However, the prosecution is bound to work on an appeal for Judge McCall’s ruling because the prosecution works under the Secretary of State, a representative of the government. This is contrary to the plea deals that the prosecution has been supporting since 2008. They are constrained under bureaucratic policy. Mr. Trivett expresses, “the likelihood of winning is small because it’s not really an appeal, it’s an extraordinary Writ. People advising SoD Austin are not military justice personnel. If the CMCR (U.S. Court of Military Commissions Review) says the Writ is denied, or if they don’t respond in 45 days, then we will follow with Judge McCall’s ruling. Bottom line: The plea deals are happening.”

What is Writ of Mandamus? It is usually used in situations where a government official has failed to act as legally required or has taken a legally prohibited action. Judge McCall has ruled that SoD Austin’s action to revoke the PTA’s two days after the Convening Authority, Brigadier General Susan Escallier, had approved the PTA’s, was unlawful.

Family members asked, what stipulations are in the plea deal.

Unclassified: There are three main provisions in the three agreements:

1. If a breach of the PTAs occur for reasons other than listed in the PTA, then the government can’t pursue a capital case in the future. The reason for this deal is that they didn’t want to sit on death row endlessly nor sit in solitary confinement forever.
2. When the accused enter their guilty pleas we get: all the evidence we want; an appellate waiver; they plead guilty to all charges on the charge sheet; no limitation on what sentence they get and no guarantee of what is stipulated. They start at zero at a sentencing trial. We intend to ask for thousands of years for all of them. KSM—2,976+ yrs. The others are expected to get at least 1,000 years. The jury will hear all of the LHMs. No Appellate waivers—withdrawal of all their motions, waiving all appeals. The combined juried trial and sentencing phase will go through with certainty in a year or two, and they will be guilty forever. In contrarst, pursuit of the death penalty will have appeals going into infinity. The likelihood of going through a contested case, getting death, appeals, and ultimately execution while still alive, gets smaller and smaller over the years. We may get the death penalty, but they will never be executed. If they die before finality they will be found not guilty by law.

IMPORTANT: They are all found accountable and they create the historical record.

IMPORTANT: This doesn’t mean there won’t be a trial. With the deal, we have a guarantee that all of the evidence will come in. The prosecution wants evidence obtained from overseas, from bin Laden’s house, there are two important pieces of evidence tying Moussaoui and KSM from a desktop in bin Laden’s house. Mr. Trivett said, “We have a disc with all of this evidence that has been kept up until 2011. There is also a video of KSM and a video with the hijackers. Their motive, reasoning behind it, and principal reason for joining Jihad will come out pre-trial.”

• They will stay in their current conditions at GTMO until sentencing happens. Currently, they are in a communal custody situation. Once sentenced, the prosecution expects that they will be in solitary confinement. There is no ruling that they stay at GTMO. However, there is a provision that there are no government funds appropriated to move them. If that is lifted, they can be moved. Congress is preventing this based on Obama’s ruling in 2008 to prevent them from being transferred to Federal court. If moved to U.S. soil, they would have different rights. This is a law that is passed every year. There is nothing in the plea deal that guarantees they will remain at GTMO. These are non-binding recommendations. The PTAs give us finality awarded and executed in the next few years, predictably in 2026.

A family member said, “So what we are doing is negotiating with the terrorists!”

Regarding Ramzi bin al Shibh (RBS), there is some thought that he wants the same deal as the others. Likely, Ali as well, in the future. Ali has not entered a plea deal, waiting it out to see what the others get. “We are basically negotiating with terrorists,” says team counsel, Nicole Tray.

The lead prosecuting attorney and the team apologized to the families for the emotional whiplash we’ve all experienced with this.

After PTAs it will be a much shorter appellate process than what has occurred up to now. 1-2 years. The appellate process only applies to the terms in the 29-page PTA.

Mr. Trivett was surprised that the judge granted his oral motion to move plea entries to after January 4^th. “The timing was janky.” One day after the election, legal teams only had 11 days to pull this together. “It doesn’t look good. If the CMCR hasn’t decided by January 5th, the judge has stated that he will proceed with the plea deals. Mr. Trivett will be required to request an emergency stay, leading us into the Trump administration. KSM will be separate, the other two will be together with their own cases.

There was a belief that the current administration supported the PTAs. “We positively endorse the PTAs, says Clayton Trivett. It’s the case call for judicial finality. The prosecution was ordered to appeal the judge’s ruling. We always felt this case deserved the death penalty. We were forced into this plea situation 27 months ago. This is not necessarily the prosecution’s path, we would have gone for the death penalty, however this is the best scenario for what was handed down to us.”

A family member asked about the risk of double jeopardy. Mr. Trivett explained that there are two components to the dual sovereignty doctrine of the double jeopardy clause in the Constitution:

1. You can’t be charged with the same crime by the same sovereign. The Military Court is the same sovereign as the federal court (same offense by same sovereign.)
2. There is nothing that says you can’t prosecute the same charge in the same sovereign (both state and federal government). Nor does it protect a person from being prosecuted by multiple states for the same act. Once tried in military court, they cannot then be tried in Federal court.

The CIA RDI program has had enormous consequences on our litigation. The government did it, but it has an impact on our case. The PTAs will be discussed at length with families once they are accepted when the case goes from trial to penalty phase.

Ramzi Binalshibh can’t plea while deemed incompetent. Though he may be exaggerating some of his symptoms, he has had consistent and persistent delusions and hallucinations for many years. He may turn around by the end.

KSM will not be a litigation case, it’s more of a justification case. The juried trial and sentencing will take place no later than 18 mos. from when a guilty plea is presented. The others are 22-24 mos. after their plea entries. Our asking of thousands of years is guaranteed for KSM. The others are expected to get no less than half of that.

After the briefing, lively discussions continued among family members. What we all share in common is that our case is complex. The murders of our loved ones is mired in political administrivia, capitalism, and forensic art. Guantanamo Bay Naval Base is a blurred cove in the Caribbean Sea where 9/11 family members soldier windward with those scripting our fate. To bear witness by presence. Bound by a shared event, our unique stories come together to form the collective narrative.

11/14/2024 (Friday, 1:30-4:00):

The Prosecution team conducted a briefing today primarily regarding the case of Ali Abdul Aziz Ali (aka Ammar Baluchi). A PowerPoint was presented with “controlled unclassified information” — imbedded evidence in the form of photos, documents, receipts, writings, D101 FBI interview confessions, and transcripts of the audio-video conversation between Ali and Ahmed Ghailani at Camp 7. The briefing was to aid the families in understanding the charging theory behind the case. Though riveting with brilliant displays, not all family members were able to remain through the entirety, due to the strong images and the volume of evidence and vehement declarations of hatred towards Americans.

The families were escorted into Courtroom 1 to take seats in the jury boxes, equipped with monitors for every person. Displayed on the screens:

USA vs KHALID SHAIKH MOHAMMED, WALID MUHAMMAD SALIH MUBARAK BIN ‘ATTASH, RAMZI BINALSHIBH, ALI BADUL AZIZ ALI, MUSTAFA AHMED ADAM AL HAWASAWI

The American flag displayed beneath.

The Principal Liability: If you aid, abet, counsel, or command you are guilty of co-conspiracy. This is the theory in trying the case. This is a capital case that is being filed under Criminal Code 18 USC (Prosecution under Law of War under Military Commissions Act).

THE CHARGES:

CHARGE I: VIOLATION OF 10 U.S.C. – CONSPIRACY

The accused entered into an agreement with leaders of al-Qaeda to aid, counsel, or command to murder multitudes of civilians. The accused knew the unlawful purpose. The accused knowingly committed an overt act in order to accomplish the same objective or purpose of the agreement or enterprise.

CHARGE II: VIOLATION OF 10 U.S.C. – ATTACKING CIVILIANS

CHARGE III: VIOLATION OF 10 U.S.C. – ATTACKING CIVILIAN OBJECTS

CHARGE 1V: VIOLATION OF 10 U.S.C. – MURDER IN VIOLATION OF LAW OF WAR

CHARGE V: VIOLATION OF 10 U/S/C/ – DESTRUCTION OF PROPERTY IN VIOLATION OF THE LAW OF WAR

CHARGE VI: VIOLATION OF 10 U.S.C. – HIJACKING OR HAZARDING A VESSEL OF AIRCRAFT

CHARGE VII: VIOLATION OF 10 U.S.C – TERRORISM

3 Points to Prove:

1. Acts of War by al-Qaeda against the U.S. occurred before, during, and after 9/11. The U.S. has made efforts to counter their propaganda since 1998. We have been at war with al-Qaeda since Osama bin Laden (OBL) declared war against the U.S. in 1996. They clarified this with the 1998 Kenya and Tanzania Embassy bombings on American civilians. They had systematically launched attacks since August 1998 through September 11^th, 2001.
2. Establishing that 2,976 people were murdered because 19 al-Qaeda member hijackers intentionally crashed four airplanes into buildings in New York City, Washington D.C, and a field in Shanksville, PA. This is accomplished by identifying who the hijackers were and who financed them. This has to be proven: The planes that were hijacked, who hijacked them, and who witnessed them crash. There is one known video of a plane hitting the Pentagon through a grainy security camera. There is one video of the first WTC tower being hit by videographers who were on the ground filming a documentary. There is a cockpit data report recreating what happened on Flight 93, in Shanksville, PA.
3. Establishing guilt of the planners. The accused aided, counseled, or commanded the hijackers. This is illustrated through multitudes of documents.

The three hours of detailed commentary, displays of raw evidence presented to families, and details of the Q&A are too extensive and sensitive to expound in this narrative.

The prosecution has 133 recordings of LHMs which are getting suppressed. Evidence presented included: receipts, bank notes, boarding passes, credit card and wire transfers, passports and Visa applications, written notes, objects found in the home of Osama bin Laden, and semi-redacted transcripts of conversations between al-Qaeda operatives and 9/11 conspirators. The evidence presented to us, unequivocally drew a solid timeline of the planning and execution of the attacks, a clear intent to harm as many people as possible, and the enterprise of co-conspirators involved in planning, financing (and transfers of funds), and carrying out the attacks on September 11^th, 2001.

The perfidious, demoniacal acts of hatred and faceless edicts that ideological extremists have inflicted upon my life and that of my family, and continue to victimize people globally, is something I’ve had to shape my life around for twenty-three years. Now, the deepening exposition of the politicization and capitalization of the murder of my husband, of my son’s father, and our livelihoods has shifted how I feel about myself, yoked to this 9/11 life. I have always thought of my husband as the Victim of this murderous act of war, and myself and my son’s as Victimized. Today I left Courtroom 1 in Camp Justice feeling like a Victim for the first time. A Victim of Historical Meander. A Jumanji franchised by politicians and attorneys weaponizing and polarizing three generations of Victims and the Victimized in the ceaseless death.

For me, justice is redefined as FINALITY. Here’s what Justice means to the eight other people who attended the 53^rd Session of pre-trial hearings in the Military Commissions’ prosecution of the 9/11 case – the 23^rd year, 278^th month, 8,483rd day of American life support and justice serving the murderers of our loved ones, 2,977 innocent individuals from 93 countries, and the interminable sickening uncountable deaths.

* FINALITY * ACCOUNTABILITY * FINALITY * TRANSPARENCY * TRUTH * FINALITY * DEATH  * RESOLUTION * INEVITABLE

Featured in Cover Photo: Jack Ryan; Deborah Garcia-Me (WTC-1), VWAP Support Liaison, Grace Donegan (WTC-1), Julie B (WTC-1), Maureen Basnicki (Canada – WTC-1), Kevin Ryan (Rescue/Recovery), Colleen Kelly (WTC-1)

Photos by Deborah Garcia with permission of all VFM’s, U.S. Navy, OMC Victim’s Witness Assistance Program

© Deborah Garcia 2024, all rights reserved