9/11 PRE-TRIAL HEARINGS: BRIEFING WITH THE DEFENSE – GUANTANAMO BAY NAVAL STATION, CUBA

11/13/2024 – (Wednesday, 5-7:00 PM)

Members of defense counsel present: Gary Sowards (Lead Learned Counsel – Khalid Shaikh Mohammad/KSM); Maj. Mike Leahy (Learned Counsel, Air Force – KSM); Matthew Engle (Lead Civilian Learned Counsel – Walid bin Attash/WBA); Marian D. Messing (Mil. Def. Counsel, Army – WBA); Suzanne Lachelier (Learned Counsel – Mustafa Al Hawsawi / MAH); Capt. Patrick Tipton (Learned Counsel, Air Force – MAH); Tammy Krause (Defense-Victim Outreach specialist /DVO). Two other members of defense also present.

Eight Family members and VWAP support personnel gathered with members of the three defense teams active in the proposed plea deals (PTAs) in the conference room of the Navy Gateway Inns and Suites.

What does it feel like to commune with the people defending the rights of your terrorists? The American citizens whose duty it is to provide the best representation possible to their clients— the soulless extremists who murdered your loved ones for no other reason than ideologic spectacle, altering your history, entangling you with foreign conflict and international law— take position in a boardroom with their elbows on the table. Every maneuver is deployed with cunning syntax, ensnaring you in the burgeoning chain of administrivia and forensic art of due process for the interests of the most notorious international terrorists who murdered your loved ones, razed the innocence of your children, and waged holy war on America.

Following a roundtable of introductions, a Family Member asked each defense team member to briefly share their personal experience on September 11^th, 2001. The telling moved around the room like a sine wave, with a flattening of defense counsel accounts followed by a lengthening amplitude of Family Member stories oscillating with sharp infuriate peaks and tearful dips.

The over-arching slant was the telling of the defense teams collective remote memory of hearing the news, observing the towers hit and fall from screens, if they were old enough Reflecting distance. All, except for one who lived in Washington, D.C., were in different parts of the country. Each escaped direct loss. For two, there were no memories at all due to age, the ages of my own children 23 years ago. Spared by the shield of innocence, they relayed faint memories of their parents making phone calls, sending them outside to play: “We went to school and our parents went on with business as usual.” “I remember the emotion on the teachers’ faces.” “I was in high school, it was a disorienting time.” “You’re of two minds, my heart is with you.” One attorney said, “Assigned this case, I have empathy and sympathy for my client.”

The burgeoning chain of administrivia and forensic art of due process

The Families’ experiences echoed a prevailing contiguity, reflecting proximity. A plurality of blunt impact arousing rippling waves of heartache and fury: “Terrorism is mental warfare.” “I live with PTSD and lost my career. Moments before the first impact, my husband called his son (from Window’s on the World)—I am on top of the world! “It is the ceaseless death.” “My dad is dead. I lost both of my parents that day.” “My life is focused on taking care of my parents.” “How do you deal with a philosophy that only sees your demise?” “This case has only one solution!” “Our hopes were that we were going to find people alive…” “My children’s worlds came to an end that day.” “It shows how quickly our lives can change.” “The event that preceded this was the 1993 attack, killing six people.” “This war on terror is not over.” 

Mr. Sowards explained, “as his lawyer, my job is to defend him, to get him the best result. What I hope is that you understand that whatever it is I’m doing for Khalid Shaikh Mohammed, as a capital attorney, is to get to know the client as much as possible. I want to do what can cause you less pain. We owe this to you, to hear what you want to talk about, so we are aware of this. We’ve told the government in terms of negotiations and plea deals, we want to make sure that we have negotiated the deal that gets the most expansive result. It’s things like the poetry (extending his gaze and hand toward me) that puts us in touch with what has happened.”

Causality of less pain? What is the metric? A Year? A Decade? A Half century? Frequent Flyer miles? Units of Zoloft? Bone fragment count? Number of breaths… left?

I have empathy and sympathy for my client.

Maj. Mike Leahy, Air Force Atty (KSM)

Stunned by Wednesday’s abrupt ending of the session following the prosecution’s questioning of the witness, we wanted to know why the defense team decided not to cross-examine Dr. Welner? Mr. Sowers said, “A lawyerly strategic decision was made. The testimony felt mundane and trite.” Here’s why:

1. “At the end of the day, Dr. Welner really didn’t offer much new information into the case. As we saw it, much of what he was doing was interpreting things. All other witnesses have been people who were boots on the ground. We want information from them that we don’t know. Welner is given the case files and told to read through them, watch videos, and offer interpretations. Many of the things he talked about regarding the treatment in the CIA program is many degrees removed from what happened — A summary of a CIA officer somewhere wrote their account of what Ammar (aka Ali / AAA) said. He (Welner) is so many degrees removed from what happened, that we collectively didn’t think it would benefit anyone to challenge his interpretation. At the end of the day, the raw information is what we want. What we don’t have access to.”
2. “We had a defense psychiatrist testify on Ammar’s (aka Ali/AAA) experience and health conditions. We’re really focused on the brain science: The brain impact of the experiences; on how they’re encoded in the brain; the science of the effects; PTSD, etc. Welner was a legally-minded brain scientist.”
3. The attorney’s continued to state, “We were observers. The prosecution’s default is to repurpose sites that were CIA black sites. What we have to recognize is that wanting flesh for flesh is a different issue than a legal issue. Mitchell and Jessen described things that were very unpleasant.”

Mr. Sowers recants, “I know that the world shifted into an existential threat. People were telling the CIA interrogators that we were facing nuclear holocaust, so they tortured people because they thought they had to get answers. Technically it’s illegal, but I understand why they did it. They crossed a line because they thought they had to do it to save (our) lives.”

I want to do what can cause you less pain.

Mr. Gary sowards, Lead Learned Defense Counsel (KSM)

I can’t help to question, What is illegal? What is the law? What is law for international terrorism waged by belligerent enemy combatants? If the principles and regulations are established in a community by some authority to create a system of rules, which is applicable to the people whether legislative or judicial, then who are the people? Define community. The attacks of September 11^th, 2001 on American soil were an unprecedented event that thrust the globe into lockdown. What is the law? It’s taken over 23 years for congressional and legal counsel to not only define the law, but to determine to whom the principles apply. This re-shuffling of the deck chairs on the Titanic has divided America, our communities, our allegiance. These mass murderers have divided the families of victims, conjuring our own government to further codify micro-divisions of the victimized within the manifold of the undulating footprints of 9/11. Are we repurposing the establishment of the principles of national protections to our citizens or to our foreign marauders? Who is re-shaping the law? The victimized or the victimizers? Who are the victimized in the War on Terror? The unfortunate innocents punching time cards or the vicious immorals plunging planes into the histories of 2,977 families in one blow?

We’ve over-thought this. The case has been over-thought. The law has been over-thought.

A family member remarked, “given the rollercoaster ride we’ve all been on, the writ (of mandamus), now that we are on the one-yard line, what’s your opinion that we’re going to get to the goal-line on the 4^th? With another mission coming in, based on the filing of the writ, more delays are added into a time-line of no resolution? The Judge picked January 4^th to give government a reasonable amount of time to seek CMCR review (U.S. Court of Military Commissions Review), to give the court time to issue a stay for the plea hearings. Did Secretary of Defense Austin have the right to revoke? Will the judge’s decision to reverse hold? I hope the CMSR will look at the 29-page plea deal and not delay. Unfortunately, Austin is pushing this ordeal. If they Stay it, the case goes into orbit.”

Members of the defense concluded, “the prospects are that the Secretary of Defense’s term is about to come to an end. Is the decision binding to Austin or does it get transferred to the next Secretary of Defense? He’s in the same bind. A new Convening Authority is also coming in. The problem is if someone says I want death then the case no longer is about how long it takes, it’s about how they might be in favor to continue the push ahead.

© 2024 Deborah Garcia, all rights reserved
Cover photo by Deborah Garcia, taken with permission by the Marine Corps, Guantanamo Bay, Cuba