- Closing 9/11 KSM et al. military commissions
press conference for March 2017.
I'd like to remind everyone to remove any badges
and silence any electronic devices.
Today we'll first hear from the prosecution
and then defense.
With that, I'll turn it over to the prosecution.
- Thank you Major Sakrisson.
I'm Brigadier General Mark Martins, I'm the
Chief Prosecutor of Military Commissions.
At the outset let me say, and I don't believe that they are
within earshot of this, but to the extent
they see a videotape of this at some future time,
I had the privilege of dining last night with
survivors of the 9/11 fallen, and with a
survivor first responder
who was here this past week
with the others, and I just want to say
to Marvina and Kashir Bosch,
to Deborah Borza and Christina Abbott,
to Dan deLaura and James Hall,
and to Carson Howell and Frank Favilla,
your determination inspires us and please know that
we will never ever forget
Michael, Deiora,
John, or Brady
and that we will be at this however long it takes
for justice to be done.
We had a full set of sessions this week,
it was originally scheduled to be two weeks.
We went through all of some 43 motions on the docket,
the judge and the parties
either dealt with in some way,
found the procedural posture, figured out
what the next step was, or resolved to the point of
submitting it for decision or actually getting a resolution
out of some 23 of those 43.
There were two hours and 19 minutes of
closed sessions amongst that.
For those of you interested, one was one hour 50 minutes,
the other was 29 minutes that we did today, this afternoon.
Overall some 93 plus percent of the
hundreds of hours of proceedings since 2012
when we arraigned these five accused.
Over 93% of that has been fully public,
that number will rise upon the publication of a
transcript of the unclassified portions of today's
and yesterday's sessions, closed sessions.
The accused are presumed innocent unless and until
proven guilty beyond a reasonable doubt by the commission.
With that, let me open it up to any questions.
You do have some written remarks there
that catalog our notes of what happened this week.
Ms. Rosenberg.
- [Ms. Rosenberg] General, it's Carol Rosenberg
with the Miami Herald.
Is there anything you can do or tell us about
resolving the problem that the judge brought up
about lack of court space and conflicting court space?
Or is that something you just don't have a role in
and somebody on high is gonna have to bring down
on the commission?
- I along with many others including
the Chief Defense Council is consulted.
I'm consulted on requirements.
We input our requirements into that.
I know there are a number of efforts afoot
to get more office space in the
expeditionary legal complex.
The judge's comments are heard,
and what was said on the record today is heard.
And our position of course was to
let's get a schedule.
A schedule is a schedule,
and if you have something written down that
you're working toward,
it then enables things to happen.
Resources to be arranged,
and if it's out several months,
there's much that can take place.
Yeah, I'm not the best authority on precisely
what's going to be done because that's just
not my role.
- [Male Reporter 1] But just following up on that
is there a possibility for trying to construct
another courtroom maybe one that's smaller
since the other cases have fewer personnel?
Has that been floated at all to you?
- Absolutely, there is a courtroom up the hill,
courtroom number one, that's previously held
commission proceedings.
It was used for the guilty plea of Ahmed al-Darbi
in 2014, John.
I'm not the most up to date on precisely whether
that's available and for what purposes.
Darbi is not a so-called high value detainee.
There wasn't a need to have that on a 40 second delay
and so forth under the protected orders of
that commission.
Again, our position is that
the judge sets the time, place, and manner of discovery.
He schedules the proceedings.
That's clearly part of the judicial function here,
and I'm certainly committed to ensuring that
requirements are known across the government for this
and that we support what the judge seeks to do.
- [Female Reporter 1] Hello, good evening.
Cawo Abdi from Metro One News.
I have two, three questions.
First one, what parameters define a session
to be closed?
And do you think it affects our right
as member of press to be there?
Can you answer why should not
we, members of press, be there at a closed session?
Okay, second question, has anyone in
Trump administration contacted Office of
Military Commissions after 21st January 2017?
And let's say tomorrow President Trump tweets,
"Speed up the trial of 9/11."
So what impact will that have?
And last but not least, the defense lawyers of
Ammar al Baluchi have requested a lot of time since
2014 full report of SSCI, that is Senate Select
Committee on Intelligence.
So has that been provided to them?
Thank you.
- Thank you, ma'am.
Our parameters on closure are contained within
rule for military commission 806.
The basic rule is that proceedings, sessions
of the commission are public.
It's the same rule that we have in our federal courts
and in military courts marshal.
Public does not mean televised.
It does not mean simulcast.
It means that a public can meaningfully
gain access to and watch the proceedings.
Usually that's an open courtroom door
in the continental United States somewhere
even for very, very heavily publicized trials,
which of course you're familiar,
often render only an artist's drawing of what's inside.
That's the rule,
and that's the rule we heed to.
If the judge is going to close meaning
members of the media, members of the public
can't view the proceedings, there's a requirement
to have that be, as a result of a
compelling public interest in closure,
among the things that could make
a compelling interest, are national security,
considerations of national security,
invocation of the national security privilege,
and that's what occurred this week
is the government invoked national security privilege.
The judge then heard what was the
nature of the information,
what were the matters that were gonna be brought up,
and how were they going to be used
in argument or otherwise,
and he has an obligation to hear those,
try to limit the amount of closure.
He has to try to narrow it as much as he reasonably can
often by forcating the proceeding.
Sometimes by deciding that a matter is just not relevant.
That's one way to limit the amount of closure as well.
So we do a hearing to determine
the use relevance of admissibility.
That's not actually a session of the commission.
That's a discussion amongst council and
the commission and the judge about what's coming up.
And then he'll issue a ruling.
He's been calling these rule for military
commission 806 orders,
and he'll issue that, and he'll state the way
in which he's narrowing the amount of closure
to the public.
And this is consistent with the
famous case in our system,
the second Press Enterprise case that went to
the Supreme Court.
So those are the parameters, and we believe the judge
followed those, and we don't believe that
given those measures and the effort to make
the proceedings as open as possible that
in any way violates anyone's rights.
The public trial right is actually for
the benefit of the people to be able to
view their institutions.
The second comment had to do with
has anyone contacted the commission?
I'm not gonna comment on who I speak to
within the executive branch with respect, ma'am.
These proceedings are
under the presiding officer, who is the military judge.
He's an independent official.
Each of us in these proceedings has our function,
and we enjoy independence with regard to those functions
even while being accountable officers.
So I won't talk about or speculate about
what would happen in these different scenarios
that you painted.
On the third comment, we actually have some litigation
relating to the Senate Select Committee on intelligences
full study into the Central Intelligence Agency's
former rendition, detention, interrogation program,
and I'd frankly rather keep that in the
commission proceedings,
and we're going to be arguing that and so forth.
Again, we maintain that we are mindful
of our discovery obligations.
We certainly understand there are defense
council who disagree with our view of discovery,
and I understand that.
But we maintain that we are providing
the information that they need to make every legally
cognizable defense to rebut the prosecution's case
and to make a sentencing case,
and also to have those matters that are material
to the preparation of their defense
even if immediately they're not
immediately relevant at this time.
So in other words to comply with our
discovery obligations.
Thank you.
- [Carol] There is a follow up, General.
Can you say whether someone has put in a request
for the funding to build a second court,
and do you agree or disagree with the judge
on the notion that a seven pm to midnight, 9/11 trial
would be unseemly?
Or would you think that it would be okay to do it?
- I'm not going to comment on the judge's points,
and I'll defer you to Major Sakrisson on
precise plans, Carol, on what's happening.
I know there have been appropriate pulsing
for requirements and projections on what could happen
so that planning can be done.
Again our position is that we need to have a,
as we've stated in 478,
that a schedule is
a helpful addition to this in order to help plan,
and to start committing to being down here
for lengthy periods to get things done.
The judge has much experience and has practiced
in every theater that I know of.
He's practiced in combat zones.
We are prepared to do that.
We're also going to ensure that these proceedings
have the necessary emphasis
and appropriate dignity to the whole justice process.
- [Carol] And just to follow up,
the judge was very specific in one of his recent memos
in saying that he did not consider this a combat zone,
that he considered this a base.
- I understand.
I was simply making the comment that this is
an experienced trial judge,
and we defer to what he does in the area of scheduling.
Definitely was listening intently as I always do.
We have a record of this morning's proceedings,
and his comments are heard.
- [John] Can you just talk a little bit
about how the prosecution team came up with the
September 30 deadline for this year
forgetting the entirety of the already added
material to the defense, or that's the date where
everything approved to the defense.
How did you come up with that?
- Well you saw as Mr. Ryan mentioned, John,
the initial date that's in 478, you should
have a copy of that, right?
Do you have a copy of 478?
So you've got the list of milestones that
we submitted on 3 January as part of that.
And we looked at this and determined that in light
of January being, most of that two weeks we
were not able to address business.
We felt that moving all of the dates in that,
and we believe those are appropriately spaced.
Understand again, I know there are
defense council sees it in a much different light,
but we believe those are appropriately spaced
and that we can get after it and do it
as our basically exclusive duty
if we look at those dates and adhere to them.
30 September of this year then would be the date
on which we would deliver all of this material
including all of the material we gave to the judge
initially, understanding he has to do his part
as of 30 September last year.
In light of the pace at which this is going,
we do not control that by the way completely.
We can do the pieces we can do,
and we've been working to reduce the amount of time
it takes to deal with the changes that he directs,
but that's our best estimate, John,
is 30 September to now give to the defense everything
that we had provided to the judge last 30 September,
and then the other dates follow upon from that
for evidentiary motions, et cetera,
leading up to the seating of a jury panel
in June of 2018.
- [John] Can you say anything about how you
reduced the turn around time from when you get the...
- No, you heard Mr. Ryan speak.
We've learned some things about how to do it,
and these things can raise any number of different
types of equities, and we have the responsibility,
which we take on willingly, pleased to do it,
to coordinate that
and to seek to make it work or to come back to him on it.
- [Cawo Abdi] Two, three quick questions like
what's the nationality of Mr. Ammar al Baluchi?
What's his nationality on papers
and out of 41 detainees who are left at
Guantanamo now, so how many HVD, Commander,
high value detainee definition,
and what parameters define compliant behavior
so that they can be shifted out from
one camp to other camp?
- I see you ask your questions in threes.
(laughs)
Okay, Ammar al Baluchi is Pakistani.
You may want to speak to his attorney too
about any other questions you have.
Precise number of HVDs.
I'm going to defer to Major Sakrisson.
It's a fraction of that 41 that remain.
Compliance, your question again,
what is compliant behavior?
of the detainee?
Well we defer to the camp to tell us if someone is
complying, but it means somebody who obeys lawful,
appropriate authoritative direction
and complies, not to be circular there.
Use the term in my definition,
but somebody who takes direction and
doesn't create disturbances or issues.
- [Cawo Abdi] So I presume that all HVDs
do not have good behavior or..
- I would not assume anything, ma'am.
They are cared for under the Geneva Conventions,
and the guards who are trained and supervised
and accountable keep a log and enter into
a detainee information management system
the compliance with the direction,
the different things that happen with regard
to a detainee throughout a day.
And various reports that may be written on incidents
that come up or the way in which something
can either be proven or not confirmed
and that's what those records exist to do.
Sure, thank you.
- [John] Just one detail.
The judge seemed curious today about
what happens after he approves a series of
substitutions and summaries in a two week period.
Can you talk about at all about what happens
in that two week period before it gets to
the defense?
- Well, I'll leave it at what he said.
It's an administrative processing thing.
We've gotta distribute it with Bates numbers.
We put a unique number, which we can't apply
until we actually get an approved version from the judge.
That has to be a unique number in sequence,
in a coherent continuation
of Bates numbers
that we've done to date.
So we have to mark it all.
We have to get it ready.
We have to prepare certificates of service.
If it's classified, we have to put together the couriers.
This is voluminous material so doing all of that, John,
two weeks is our target to deliver it.
And everything that he has approved in that 308 series,
it's some 11-12 protective orders we now have
where he has made his ruling that
the substitute that we've created gives the defense
substantially the same ability to make a defense
as they would have had had they had the original.
When he's done that, we have now delivered all of that,
and we're finding getting the rhythm of this
and getting it together with this judge,
that two weeks is the appropriate target date to do that
for that part of the process.
- [Carol] So my question, General,
Carol Rosenberg of the Miami Herald, is in the
other capital case, the judge has ordered
for CIA employees, former employees, as witnesses
in the destruction of tape episode.
Has there been any progress on that,
and does the prosecution have the capacity to
challenge that, ask for reconsideration or appeal
the order to provide those witnesses?
- We are not appealing that
so I'm aware of the order, and we did not file
an appeal of that or seek reconsideration within
the time for that under the statute.
- [Carol] Is there any other move you can do?
- I'm sorry.
- [Carol] Is there any other move you can do
to not furnish them?
Not appealing, not seeking reconsideration.
- We comply with the lawful orders of the court.
We have remedies, and we take those as appropriate
if we see it as something that's in the interest of
the United States and its people.
On this occasion, we are seeking to comply with
the judge's order.
You can't force someone to speak actually.
There are different things that happen,
but we can use the process of the getting witness
testimony to the commission, which we will use
as you've seen this happen, Carol, before.
So we'll use the process to get the testimony
before the commissioner.
- [Carol] So you would subpoena them and send marshals
to bring them?
- I'll refer you to rule 703 and just use that process
and the implementing arrangements for that.
Thank you.
Let me again just, I want to thank all the soldiers,
sailors, airmen, marine, coast guardsmen, civilians who
make these things happen.
Although this was a shortened set of sessions,
we got everything done, and we did so because of
all the logistical support, which is just greatly,
greatly appreciated.
Thank you.
- My name's James Cornell.
Along with Alka Pradhan, Lieutenant Colonel Sterling Thomas
of the United States Air Force, and Major Jason Werm
of the United States Marine Corps, we represent
Ammar al Baluchi.
At the completion of this 22nd session
in support of the 9/11 military commission,
we would like to just take a moment to recognize
the suffering of those who died and who lost loved ones
and who were injured on September 11, 2001.
In the course of these proceedings, we know that we often
say things that are hurtful or
seem callous to their suffering.
We can do very little to ease their suffering,
but we hope that we never add to it.
Those victims and victims' family members are constantly
in our thoughts and our prayers and our meditations.
The one item that I would like to address
is that it became clear at this hearing
that the case is not ready to have a trial date set.
In the course of the discussion over discovery matters,
the judge as well as the parties explained that
despite the prosecution's hard work in putting
discovery together, the basic voluntary discovery phase
of the case is not complete.
That means that we are nowhere close to full discovery
because among the summaries that we have received
thus far, it is clear that further litigation
would be necessary to bring those to a state
where there would be an adequate substitute for
the original classified information.
That means that despite the enormous work on both sides
in this case, there is a lot of work left to do.
The government has chosen 30 September 2017 as its date
for voluntary compliance with discovery,
and no doubt there will be a number of discovery motions
filed after that seeking to compel discovery.
You've seen a few of those,
but you haven't seen any motions related to the
substitutions yet, which is what will come after
30 September 2017.
With that, I would like to open it up to any questions
you may have.
- [Carol] Carol Rosenberg, the Miami Herald.
When they announced in court today
that you were gonna get 1400...
- 14,300.
- [Carol] Pages for the RDI, was that a surprise?
- Yes, actually it was.
- [Carol] What did you think you were getting?
- The different elements of the 10 category construct
had been uneven so far.
Sometimes the government, where we would expect to see
a lot of evidence, the government has produced
a page or two.
Sometimes where we expected to see a relatively
limited amount of information such as statements
the government has produced a great deal of information.
So it's not clear to us what the relationship between
the number of pages that we see and the number of pages
that are responsive to any particular category is.
But yes, that is a larger number than I expected
given the government's original estimate,
which was somewhere in the thousands.
And 14,000 is in the thousands,
but that is a larger number than we expected.
- [John] John Ryan from Lawdragon.
A number of attorneys said it's not just getting
the discovery, then it's time to investigate
and pursue leads.
So if you're looking at September 30th of this year
for getting everything, can you give a sense of how
long it would take to start investigating
the details of past abuse that you want to get,
or how long could that be?
- So one thing should be completely clear.
I don't speak for other teams, but I'm sure it's true.
We have been doing the very best that we can
to investigate the information that we have right now.
And by its very nature, the government has taken
extraordinary efforts to cover its tracks related
to its use of torture against Ammar al Baluchi and others.
So that investigation is very difficult.
When we receive discovery, whether that is discovery that
the government has already produced or that which
it expects to produce over the next six months or so,
we fit it in to our ongoing investigative efforts.
So I want to be clear that the investigation
does not begin on October 1st, 2017.
Everyone is doing their best and
some countries are a lot easier to investigate than others.
Everyone is doing their best to investigate
the information that they already have.
If the information that is forthcoming is like
the information that we have received thus far,
it's actually not that helpful to the investigation,
which is why there will be follow on motions to compel
because most of the specific information which would
support an investigation has been stripped out of
what we've seen thus far in the summarization process.
And I do want to be clear about one thing.
It's actually a multiple summarization process.
If these are cables, for example,
the cables themselves are a summary written by a person
with a specific desire to avoid prosecution
or professional misconduct or simply to please
those who are in Washington.
So the documents are a summary to begin with.
Then they get resummarized by the time we see them.
They don't have a lot of useful information
in them so far.
- [Cawo Abdi] Hello, good evening.
Cawo Abdi from Metro One News.
I have three questions.
Have you spoken in person with the full film producers of
Zero Dark Thirty?
And my second question have you been provided
as to date the full report on SSCI,
that is Senate Select Committee on Intelligence on torture.
And third, how would you define your client?
Nervous, confident, anxious, or scared?
- With respect to the first question,
we have reached out to Mr. Bowl and Ms. Biglow,
and they have declined to speak to us.
Sometimes through council, sometimes otherwise.
Have I personally, no, I have not personally
spoken to them.
But we have asked to speak to them, and they have declined
as is their right.
No, we have not been provided the SSCI report in full
or in anything other than what the public has.
The access that I have to the redacted executive
summary of the SSCI report is the exact same
access that you have.
We downloaded that off the SSCI website on
9 December 2014 just like everybody else.
Third, with respect to how do I describe Mr. al Baluchi,
I have to describe him as damaged.
He is a person who has suffered a great deal
over the past
14 years at this point,
and that damage affects his everyday life.
It affects how it interacts with his team.
It affects how he interacts with the guards.
It affects how he acts in his cell.
And so that's the characterization
that I would have to give.
- [Cawo Abdi] He's one of the most talkative
detainees I've seen.
- Yes, he is talking.
We have a very strong relationship with him.
That relationship came through enormous work
by both the legal team and Mr. al Baluchi.
From 2011 when Colonel Thomas and I were initially
appointed until 2013, he would not speak to us at all.
It was the visit to Camp Seven,
which changed that relationship
and he agreed that he would speak to us at that time.
Since that time, we've had a very strong team
relationship with him.
He does chat with us all the time.
And it's not just on casual topics.
He talks about the case all the time.
He talks about other issues all the time.
And I do want to point out he has a strong
relationship with both the male and the female
members of the team.
- [Carol] I'll do one quick follow up.
What do you think of the idea of a seven pm to midnight
trial schedule?
- The idea that the 9/11 case would be conducted
as night court is not consistent with either
efficiency, effectiveness, or dignity.
John?
- [John] Has anything happened recently...
What is your idea now of a trial date?
- So my idea of the trial date has been that
to which I've predicted for quite a while now,
which is 2020.
It seems that when the judge was talking about somewhere
around two years from now, which those dates often
slip a bit, a 2020 trial date seems pretty realistic to me.
Others may have different views.
- [John] With the litigation over the decommissioning
of the black site, you went through some of the
discovery this week in court about emails.
Can you just talk about where that is right now
and are we likely to see that argued on the merits?
- So where that is right now is that the
judge has ordered certain discovery.
He ordered the prosecution to produce discovery about
their efforts to tell the defense about the order,
which the judge issued ex-parte,
or their efforts to find out whether we had been
served with it or not.
The government produced that discovery in February
and that is what I was referring to in the court
when I talked about that that discovery makes clear
that their previous version of events was not accurate.
The remaining issue is that the military commission
has ordered for next Monday, 3 April 2017, that the
government either invoked privilege and/or submit
substitutions or provide us the discovery by that day.
The government has previously given notice that it
intends to seek substitutions.
The one thing that is opaque to us is that after that
notice from the government, the military commission
held an ex-parte hearing with the government in
the national capital region.
We don't know what was said at that,
and we don't know if it changed anything.
But after that, another order came out
requiring either production or invocation of
classified information privilege and/or
substitutions by 3 April.
- [Cawo Abdi] I have one question addressed to Ms. Alka.
Your presentation was very good on Camp Seven
versus Camp Six.
I have one question.
In Camp Seven, you said, "No reward for compliant
behavior" versus Camp Six, recreational benefits
for compliant behavior.
So I would like if you could quote me two examples
of any recreational benefits as per your client,
Mr. al Baluchi, has he ever received any
recreational benefit?
Thank you.
- Okay with respect to your first question.
So, yes, what you heard me talk about in court
are the differences between Camp Six and Camp Seven,
and of course prior to the closure of Camp Five,
we had Camps Five and Six and then Camp Seven.
And the point that I was really trying to illustrate
during that argument was the fact that
prior to the closure of Camp Five, detainees in
Camp Six were moved back and forth based on their
status as compliant or non-compliant.
And so when they were held in Camp Six, they had
various recreational benefits, which included for example
group recreation.
There had been times in the past when they've had
soccer balls.
They could play together.
They have been able to take the occasional
language class.
They have been able to take the occasional art class.
The Department of Defense has of course marketed this
as all sorts of resume building activities for
the detainees, which was not the case at all.
But they have had opportunities far more than
in Camp Five and in Camp Seven certainly to
engage with each other and
basically socialize, which were not available in
Camp Five, which is where they were moved when
they were judged to be on non-compliant status.
My point was really that the detainees at Camp Seven
have no ability even through good behavior,
even through continued exemplary behavior,
to be moved to a facility where they can have
further recreational privileges,
and not just recreational privileges
but more contact with their lawyers.
This is a death penalty case.
They should be able to phone their lawyers.
We should be able to speak to them on secure lines.
They should have further contact with their families,
which is a right and a privilege under the
Geneva Conventions.
This is supposed to be a law for court,
and that is a privilege that detainees on the
so-called habeas side do have.
So that was really the point,
and with regards to Mr. al Baluchi,
he has had as you heard the government acknowledge today,
he has had an absolutely spotless record here
at Guantanamo for the past 10 years.
He has never threatened at the guard force.
He has never once been forcibly extracted from his cell,
which I think I said this in court as well,
which is unheard of.
I have had clients on the other sides be forcibly
extracted a thousand times
in their times here at Guantanamo.
So it is astonishing and really
sort of unprecedented to have a facility in which
the detainees or the prisoners are not able to
reap any sort of reward for continued good behavior
particularly when we're talking about
indefinite detention.
- [Cawo Abdi] And what's his favorite activity?
Mr. al Baluchi's?
- That's a good question.
Ammar is very engaged in the case.
He is eager to learn about a variety of subjects,
and as you can probably tell from the discussion
just this week, the case touches upon a variety of subjects.
We talk about torture.
We talk about surveillance.
We talk about hostilities.
We talk about the law of war,
and so Ammar is constantly engaged in learning about
all of those subjects so that he can actively
participate in his defense.
Now as Mr. Cornell said, he is of course damaged
from his time in CIA custody, and the torture that
was visited upon him.
He has a traumatic brain injury,
which he struggles with every day,
which affects his cognitive abilities.
And so every day is a struggle for him because
he wants to learn.
He has a great deal of reading material that
we provide to him that pertain to the case
and pertain to case related activities
and investigation.
And so he struggles through each day to be able to
educate himself on those topics.
- [Cawo Abdi] How often does he communicate with his family?
- Very rarely.
Yes, my understanding, and Mr. Cornell can correct
me if I'm wrong, but my understanding is that he
has been able to correspond ....
He corresponds with his family by a letter,
and I believe they're allowed to have two letters
each month according to the ICRC.
- [Cawo Abdi] Can't he make a phone call or Skype
with his family?
- No.
- [Cawo Abdi] Because he's a HVD, that's why?
- That's precisely the point is because
no Camp Seven detainee has phone privileges.
No Camp Seven detainee has Skype privileges.
The ICRC does provide
a video communication system
that I believe he's been able to use once.
- [Mr. Cornell] More than once.
- More than once, okay.
On several occasions
where he can sort of record messages for his family,
and his family can receive it on the other side.
And they can record a message and send it back.
But there's nothing approaching simultaneous
communication with his family members.
He can not pick up the phone and call his family.
He can not even schedule a phone call with his family
as detainees in Camp Six can do.
- [Cawo Abdi] So he's allowed as per my understanding,
he's allowed two conventional letters,
which go in the drop box.
We had a look outside the detention facility
so just two letters and who does he communicate with
like his mother?
- Four postcards, excuse me.
- [Cawo Abdi] Okay, four, and who does he
communicate with like the letter from?
His mother, brother?
- A variety of his family members.
Thank you.
- All good, okay, thank you.
- Thank you.
- To Mr. al Hawsawi.
- [Carol] Carol Rosenberg with the Miami Herald.
Two questions, Commander.
One is did you say light years away?
- I did.
- [Carol] So that's question one.
What do you mean by that?
- I mean that I can't even see it anymore, Carol.
And the reason I say that is not to be overly dramatic
or alarmist, but when I sit through a hearing
like I sat through this week, and I watch the
prosecution dance on the pinhead of a needle
about medical records and giving us medical records
that are not classified but they are treated as classified
where they then redact information,
where they have to have an entire huddle every time
they have to determine if they can actually
give us a copy of TS records when we have TS clearance
as the judge asked.
When I watch the endless litigation surrounding
something as simple as the fake number and the dates
on the detainee information management records
and I watch how much time and energy we put into this,
it's incredible how much time and energy we've expended
on these issues.
And then I think about thousands of pages of discovery
that apparently are in the mail,
and they're headed our way.
And that's why I wanted to make the key point to the judge
when I stood up to say, "Judge, it's not just when they
hit send, and it's not just when it comes into our inbox
that that discovery is complete."
Cause then that kicks into gear a whole other analysis
review on our end and then litigation.
And if that past litigation is any indication of
what's to come, then that's why I look at it, Carol
and say hey, I just don't see the end of that tunnel
because of the past indicators
and the way we've been litigating.
Just what I think are relatively simple discovery issues
or ought to be relatively simple discovery issues.
And actually Carol told Bob Swan that at one of
the recesses.
I said, "Look, you're a fairly practical prosecutor
at times and the issue is why don't you go back there
and why don't you make the case strongly for just
providing us the dates."
It would alleviate so much of this endless litigation
and it would help us move along those lines.
And the impression I get from him, and which he said was
don't assume it hasn't already been asked,
which means to me that I don't think, maybe,
but I don't know that they're in control.
So all that goes into that comment, Carol.
- [Carol] And then my other question was
you were there when the rain began.
I don't remember rain on the roof of the elk
ever shutting down a hearing.
Can you just describe what happened
and how bad that was?
- Yeah just the sound progressively dimmed,
and as it continued to rain harder and harder,
it just basically drowned out the voice of the person
who had the lectern speaking, who I think was Ms. Borman
and then the judge.
I was sitting at the back table so
I have even further to hear, and I actually asked if
they could turn the volume up on the mics.
I also talked to some of the court personnel
afterwards, and they said we can't actually do that.
So the sound just drowned out to the point
where I couldn't hear what was being said.
- [Carol] Has that happened before?
- If I can recall, there was one other session where
it rained kind of hard, and it was difficult to hear,
but it didn't get to the point where we couldn't
hear completely.
This time, it did.
I don't know if you will see that,
or you can take that as a sign from above
or whichever way you want to take it.
But the timing was unbelievable.
- [Cawo Abdi] Hi, good evening.
- [Carol] I do have one more.
I'm sorry.
Why is the timing of the rain?
What did it signify?
- Well the timing was right when we were talking
about the infrastructure of Guantanamo
and whether the actual infrastructure could handle
the trial itself, and we had been talking
about all different kinds of aspects of why
the infrastructure was not usable.
And just in that point it starts to,
pouring rain, pounding rain on the roof,
that causes us to shut down the hearing
because we can't hear.
Exactly on the point on the issue,
which was the adequacy of the infrastructure.
Can the courtroom handle this kind of proceeding?
How many courtrooms do we have?
And it was almost as though somebody else was weighing in.
- [Cawo Abdi] Okay, good evening.
- You have three questions, right?
(Cawo Abdi laughs)
I'm thinking you have three questions.
- [Cawo Abdi] Okay, it's just a coincidence.
My question, you just described your client's medical
condition so is he getting any special diet for it?
- There is a special diet that I think is available to him
where they liquefy the food, and it's basically a mush.
I've actually tasted some of it, and it's horrible.
It really is bad, it is.
It tastes badly.
The consistency is bad, but it's liquified so
everything basically put it in a blender
and give it to them.
So in terms of the consistency of it,
it's something that is good for him,
but in terms of if you're talking about the
actual quality of the food, it's really bad prison food.
Actually worse than County Jail food.
- [Cawo Abdi] Do you think he's going to make it
through the trial or something like
his condition might deteriorate.
- No, there's no might in that.
That's clearly the case.
His mortality I think is on his mind.
He's asked us a number of times about what would
happen to his property if he dies here in Guantanamo,
and he's actually asked us to help him prepare
some documents that would account for his personal
belongings and his legal documents.
So he himself is questioning whether he will live
to see a trial date.
Of course, we don't know that because we always
talk about his rectal injury,
but this is a man who has a number of other
physical ailments.
Now his blood pressure is extremely high now
as well as he's got consistent
chronic excruciating migraines.
The quality of his sleep is really bad.
His hearing has deteriorated, and he's lost much of that.
So you heard Mr. al Baluchi's counsel describe
Mr. al Baluchi as being damaged.
Well Mr. al Hawsawi is even more damaged
if that could possibly be the case.
And the remnants and the fruits of that torture
are evident every day when he tries to make
it through a day.
So yes, I think I have that and that's a question for me,
and it's certainly a question that
I think weighs on him as well.
- [Cawo Abdi] And how often does he communicate
with his family and has OMC informed his family
about his medical condition?
- I don't know if he has informed his family
about the medical condition because I try to
be very respectful of the privacy of his
communications with his family.
My main concern is to make sure that he has access,
and he's able to talk to them.
And I know that most recently he had one telephone
communication, not telephone communication.
Excuse me.
It's a VTC communication that is actually,
what's the accurate?
It's the what?
Yeah, it's got the built in delay
so it's not a real time communication
so I know that for the first time, he had what he
considered to be the best communication
with a built in delay was 30 minutes.
And that was the first time that it really worked for him.
Other times it hasn't actually worked.
His family, I think there were some brothers
and sisters, but again ...
- [Cawo Abdi] Where are they now?
- Saudi Arabia.
- [Cawo Abdi] Which city?
- I don't know which city it came from.
But it's really the first time that's happened for him.
Sure.
- [John] At some point, and this has come up in the past
when the surgery was scheduled whether his waiver
is voluntary so what happens in the future
when plausibly from your point of view,
he's not voluntarily waiving his attendance?
- He's forced to come to court as he was before
and sit in court in whatever condition he's in.
So the procedure builds in the perverse incentive
as I said before for him to lie about
the reason for not coming to court.
If he says, "I just don't want to go to court,"
even though he may be feeling really badly
and that's why he's not coming, if he just says,
"I'm not coming to court," he gets to stay back.
But if he happened to write in that waiver,
"I'm not coming to court because I only slept
two hours last night, or I had a couple of
bowel movements and that was really painful,
and I'm just really drained from that,"
he's coming to court
because at that point the judge says,
"Well it's not voluntary and I need to assess
the voluntariness of it."
So what really exists is a system that forces
a sick man to come to court,
but in order to avoid that, to basically lie by
extension in terms of coming to court.
- [Cawo Abdi] You just spoke of that due to his
condition, he is making property documents
so is anyone in Saudi government helping you
or cooperating with you on that?
And how many properties he has like rough value?
- Actually this is a really important
question I think.
The Saudi Arabian government has for many, many years
tried to gain access through Mr. al Hawsawi
to have members of the government come and see him,
check into his welfare, see how he's doing,
and assist him very much the way our government
would ask for citizens that's in prison or
is being detained overseas.
Our government has denied them the ability to speak
with Mr. al Hawsawi, has not provided them
any access to him, which of course our government
would never, ever accept.
- [Cawo Abdi] So how can we sitting here making
documents when his property is in Saudi Arabia?
- Oh no, we are referring to his belongings here.
So the mere things he has in, for example,
his Quran, his prayer rug, the legal documents that he has.
Those sort of few basic items that he calls his property.
He doesn't own property.
He doesn't have anything in Saudi Arabia
that's of value other than his family.
But when we talk about his property, we're talking
about things like his Quran, his prayer rug, prayer beads.
Things that are of significance to him and would be of
emotional significance to his family.
Those kinds of things.
And then the second piece is just the legal document
of records.
That's the only thing I was referring to.
Okay, great.
Thank you very much.
Appreciate it.