OPEN SESSION DISCUSSION OF FORTHCOMING PTA INQUIRY

January 8, 2025

It’s currently 4:00 PM and the Sun has approximately 90 minutes before begins sinking into the Caribbean Sea. VFM’s. I have finally returned to my room after another event-filled day at GTMO. Some VFMs left for breakfast at 7 AM, while others, myself included, preferred to remain in their rooms until the 8:00 AM pick-up to the VWAP Family trailors, in the Camp Justice complex to prepare for our first day in Military Commissions Court in this unprecedented first of two weeks set by the Military Judge for the entry of the Pre-Trial Agreements (PTAs) for Khalid Shaikh Mohammed (KSM), followed by Walid bin Attash (WBA) and Mustafa al Hawsawi (MAH).

At 8:45 AM, as part of a new ruling, VFM’s took their seats of choice, which then became their permanent seat assignments througout the week. An assigned Military-certified escort sat adjacent to us, monitoring VFM’s for signs of fatigue, distress, or erroneous chatter. At 9:00 AM, Military Judge (MJ) Matthew N. McCall entered the hearing room to go through questions set out in the PTA for KSM (aka AE955U) and to hash out the few substitutions, edits, and problems in the 107 page Stipulation of Facts in KSM’s PTA, set to be procured at 9:00 AM, this Friday.

Government (prosecution) Council members present in the hearing room were as follows: Lead Council Clay Trivett, assistant trial counsel Col Joshua Bearden, Superintendant FBI analyst Kim Waltz, paralegal Chief Trevis Howard, paralegal PO2 Matt Estes, Megan Gentry and two other support personnel, as well as one additional support team member in the Remote Hearing Room (RHR) in Washington, D.C.

Defense Council members present were as follows: Lead Counsel for KSM, Gary Sowards; AF Maj. Michael Leavy (Detailed Military Council); Maj. Elspeth Theis (Detailed Military Council); team support personnel Nicholas McCue, Gabriela McQuade, and Ms. Denny LeBoeuf.

Limited council team members representing four of the other defendants also present were as follows: Representing Walid bin Attash (WBA) were Detailed Military Counsel LT Austin Ridgeway and CPT Marian Messing. Representing Ali Abdul Ali (AAA, aka Ammar al Baluchi) were Ms. Rita Radostitz (in courtroom) and lead counsel James Connell from the RHR. Representing MAH was Sean Gleason and one support team member.

KSM and WBA were present in the courtroom, seated in their chairs at the left end of their team’s tables.

The Military Judge (MJ) announced that breaks would occur throughout the day as follows: For prayer times — 12:10 PM, 15:15 (2:15 PM), 19:40 (7:40 PM). Lunch break 12-13:30 (1:30 PM). The judge stated that he expected to finish procurement of all of the 107 pages of the PTA today and did not anticipate the need to add Saturday.

Purpose of today’s proceedings: To discuss with the government (prosecution) and defense, preliminary issues related to KSM’s providence (forthcoming) (plea) inquiry. The Judge stated we he will also confer with council for WBA and MAH providence inquiries if we ultimately are going forward with the PTAs.

The goal is just to get to trial

Military Judge AF Lt Col Matthew N. McCall

For AAA, the suppression hearing is currently scheduled for the third week this month.

AE955U Prelimlinary Issues in PTA Stipulation of Facts (SoF) Discussion:

1. MJ – “Do you confirm that KSM pleads guilty to all charges without concession?” Mr. Sowards (defense) – “Yes.”
2. MJ- “Do you confirm KSM’s admission to the government and presents a plea of guilty to all charges without a doubt?” Defense, “Yes.”

Without going into detail regarding tedious translation questions, vocabulary clarifications and syntax edits, I will highlight the most poignent Stipulation of Facts (SoF) points:

1. Re. Principles of Liability: MJ – “The Military Commission understands that KSM pleads guilty that he has committed, aided, abetted, commanded, counseled, procured, and directed a principal liability for causing the actions of another, one who is liable in actions for subordination as a superior commander?” Defense, “Yes.” The word “Procured” is agreed as irrelevant.
2. MJ – “Does KSM plead guilty in causing the actions of anohter?” Defense – “He does your Honor.”
3. Government – “The maximum punishment for causing death statute, authorizing maximum “Life” confinement, also authorizes the Secretary of Defense (SoD) to set the maximum for intentional bodily harm happening afterwards.”
4. Defense – Ask to omit the Convening Authority (CA)
5. Defense – With a plea of “Guilty,” there will not be a trial attributed to criminal responsibiity. (In other words, criminal responsibility is admitted in the plea entry of the PTA and does not require a trial to determine guilt to each charge.)
6. MJ – “Is the defendant pleading to the “cause.” Defense – “Yes, the defendant is pleading to the “cause.”
7. Defense – “While KSM is preparing to plead guilty to all charges on the charging sheet, due to heroic attempts of a Pennsylvania plane crase caused by passengers on board, KSM is prepared to admit that he intentionally crashed four planes, however the one that crashed in a Penssylvania field was not something he “intended.”
8. Government – “The World Trade Center killing was intentionally carried out with the civilian objects (buildings) of attack. The Trial Guide attempts to reflect the charge sheets, defining crimes and Stipulation of Fact that KSM plead guilty and admitted to. Is that a violation of the Law of War?” MJ – “This element is valid by KSM’s willingness to accept.”
9. Government – “The attacks are a violation of the Law of War because the defendants faked being civiians themselves to fool passengers on the planes to carry out the attacks. This was done in violation of the Law of War. We want KSM to agree this was in violation of Law of War, and used buildings and civiilian objects to carry out the attacks.”
10. MJ – “Anything KSM says involving co-conspirators cannot be used in any other case involving those co-conspirators. These “overt acts” will not be used in another case.”
11. Defense – “When the PTAs were put together by the government (prosecution), the defendant signed the agreements. KSM is assured use of three passages from the Koran in both English and Arabic; All of our faith be in the hands of God / Only Allah will choose the land in which you die.” and one other not noted.
12. The serious bodily injury charge offense was clarified and agreed upon.
13. (P. 107) – Admission of documents to be included in the Stipulation of Facts are to be used in the sentencing exhibit.

This ends discussion of preliminary issues related to KSM’s providence inquiry.

The Solicitor General office is telling the D.C Circuit Court that what the Military Commissions is trying to do is shut down a public trial. This is not True. It’s the opposite!

Gary Sowards, Lead defesnse Learned Council for Khalid Shaikh Mohammed

10:00 AM – 15-minute break.

Important note: There are two separate charges in the PTAs.

1. Violation of Law of War to attack civilian objects
2. Violation of Law of War to attack civilians.

Government (prosecution): “Most objects in the PTA have to be carved out in the sentencing hearing.” Regarding Victim Impact Statements, “hundreds are listed as interested in giving Victim Impact Statements. It will take until September to decide who and how Victim Impact Statements will be entered.” MJ – “I’m not putting out deadlines now. The goal is just to get to trial.”

Defense – “The defense envisions giving the option to give witness statements to who wants to be heard, should be heard. It is important this vision is sent to the D.C District Circuit about the scope of this trial we’re all committed to. The Solicitor Generals office is telling the District Circuit (appeals court) that what the Military Commission is tring to do is shut down a public trial. This is not true. It’s the opposite! Can you expedite this statement to the District Court?” The Military Judge did not think he could expedite anything at this point.

Regarding Scope of the stay request:

Lead defense council for AAA (defendant not filing PTA, only re: suppression hearing), James Connell asks, “If the emergency stay request is ruled to be for the entire case (not just the 3 PTAs), how will it affect Ali’s suppression hearings of the LHM (Letterhead Memoranda) scheduled to be continued and summarized beginning week 3?” MJ – “Should AAA’s be severed from the case? It’s not clear. It will be terrible to drag this on.” Government (Prosecution) – “I don’t recommend severing until we get a decision from the Solicitor General.”

10:37 AM – Recess called until Friday.

© Deborah Garcia 2025, all rights reserved.
Feature photo property of Deborah Garcia, taken with permission from the Victim Witness Assistance Program