The Guantánamo Trials: No End in Sight - Buchalter Nemer

by Buchalter

Buchalter Nemer

From May 30 to June 3, 2016, I represented the Pacific Council as an official observer at pre-trial hearings for Khalid Sheikh Mohammed (KSM) and four other alleged masterminds of the World Trade Center and Pentagon attacks of September 11, 2001.

They are charged with war crimes under the Military Commissions Act of 2009. After false starts and the failure of an earlier military commission, the current proceedings began in May 2012 and almost immediately became mired in procedural, discovery, and other pretrial issues. Since then delays, postponements, and countless incidents sidetracking the proceedings have kept progress painfully slow.

As Guantánamo hearing weeks go, this was an ambitious one. The court heard 42 motions covering a wide variety of issues. Most involved the scope of discovery and the appropriate treatment of information deemed to be classified or otherwise sensitive. At this stage efforts appear to focus on evidence that may illuminate mistreatment of the prisoners—medical records, detainee statements, CIA oral-history-program interviews, and the like. Other motions sought to safeguard confidential communications between the accused and their attorneys. Several appeared to involve longstanding controversies yet to be resolved. Judge Col. James L. Pohl took all motions under advisement for later ruling.

Specific motions argued during the week included the following:

  • Defense requested an expert to examine potentially cancerous contaminants discovered in the soil at Camp Justice where the courtroom is located (and where NGO observers live for the week in tents).
  • Defense sought to establish secure phone connections between their clients at Guantánamo and their offices in the United States.
  • Defense teams argued for the United Nations Special Rapporteur on Torture to gain access to Camp 7 to assess conditions there. They also sought additional information on the CIA’s spying on attorney-client meetings (discovered in 2013), and schematic diagrams of the courthouse reflecting installed electronic monitoring devices that were discovered and subsequently ordered to be removed.
  • Ramzi bin al Shibh sought to hold detention camp authorities in contempt of Judge Pohl’s November 2, 2015, order “not to subject Mr. Bin al Shibh to disruptive and harassing noises and vibrations.” In support, Somalian detainee Guleed Hassan Dourad testified to sounds, vibrations, and strange smells emanating from his cell at night preventing him from sleeping. “We have mental torture in the Camp 7,” Guleed testified in English. He was captured in 2004, turned over to the United States and, since 2006, detained at Guantánamo. To date he has not been charged with an offense.
  • In a last minute upset, the court postponed what was to have been the world’s first glimpse of a notorious War on Terror prisoner known as Abu Zubaydah, whom the CIA subjected to some of the most brutal known interrogations of the post-September 11 era—waterboarding, forced nudity, confinement to a coffin-sized box—and concluded that he should be kept incommunicado for the rest of his life. Zubaydah, who was to testify in support of bin al Shibh’s allegations, made it all the way to the war court door but never stepped inside to testify about conditions in Guantanamo’s clandestine Camp 7. Before he could do so, his Navy lawyer, Cmdr. Patrick Flor, announced in court that he would object to any questions that might incriminate his client, risking Zubaydah’s entire testimony being struck from the record and prompting lawyers to postpone the testimony until July at the earliest.
  • KSM sought approval to send a letter he had prepared to President Obama, claiming a right of confrontation. But first, he had to get the letter back from the authorities to whom it had been presented to approve its dissemination (JTF GTMO, DOD, etc.). In a typical GTMO result, each agency had declined to authorize dissemination on what sounded to me like narrow bureaucratic justifications, but refused to return the letter, claiming it might contain information too sensitive or otherwise inappropriate for disclosure to KSM—its author.
  • At one point in the argument, KSM touched off a shouting match with Judge Pohl by announcing inexplicably in Arabic, “This is a nuclear bomb in the world.” Before he could elaborate, Judge Pohl shouted him down and threatened to eject him from court, adding that he would not tolerate defendants talking without permission in court.
  • An imaginative argument that took up the better part of a morning session was defense counsel James Connell’s claim that U.S. domestic law incorporates various international laws and treaties on the treatment of detainees, which he argued must be applied in this case. One of the forces slowing these proceedings appears to be a lack of clarity on the procedures, jurisdiction, and laws that should be applied in the context of a military commission sitting in Guantánamo.

As is his custom, Judge Pohl made no substantive rulings from the bench, promising them at unspecified later dates after further consideration.

Chief Defense Counsel Brigadier General John Baker said he expects the focus of the 9-11 hearings for the “next period of time” to be on discovery of classified information, a process he said was “in its infancy.” Despite defense lawyers joking on occasion that “peace may have broken out” with the prosecution team, Baker said there have been few instances of the parties coming together to resolve matters outside of the courtroom. “The way litigation has unfolded,” he said, “there’s virtually no getting together and working it out.” According to one defense team member, the trial is not likely to begin before the end of 2019. Another predicted a start date “between 5 and 10 years from now.”

The military commission hearings were intended to provide a fair trial within a legitimate judicial framework. The painful delays and seemingly endless pretrial procedures threaten to erode perceptions of legitimacy and fairness, and they must be addressed if the United States hopes to restore its standing in the international community as a champion of human rights.

I believe these delays stem from a variety of sources, including the following:

Systemic inadequacies. The system itself may be flawed. New twists in the case seem to occur frequently, functionally shutting the process down until the controversies can be resolved. The military court has few legal precedents to go by, so nearly every issue that comes up causes another delay, breeding issues to litigate. Also, delay may further a defense objective in these capital cases for as long as possible to keep their clients from being executed.

External influences. Although it is difficult to resist concluding that government prosecutors are unduly uncooperative, one must also appreciate the difficult task they have trying to conduct a trial with their every move scrutinized by outside agencies like the CIA, FBI, and NSA, all of which have a say in withholding or redacting potentially confidential or merely embarrassing discovery materials. Working through their objections is proving a daunting and massively time-consuming task. Also, the Joint Task Force Guantánamo, which operates the detention facilities, does not appear to be subject to many orders by the military judge. This makes it difficult for the court to influence prison conditions or ensure defense counsel access to their clients.

Judicial temperament. Judge Pohl is doubtless a capable jurist in many respects. He clearly is intelligent, has a firm grasp of the pleadings, and understands the issues. His reluctance to rule on motions in a timely manner, acceptance of prosecution recalcitrance in turning over documents, and possibly over-cautious navigation of admittedly uncharted legal waters, however, all add to the perception that this trial may never end.

The Pacific Council has recommended several means by which to re-establish legitimacy of the military commission process and, beyond that, our nation’s credibility on the world stage by expediting and bringing transparency to these proceedings, most notably by appointing a federal district court judge to preside over the military commission trials. This recommendation should receive more attention.

This article was originally published by the Pacific Council, click here to view.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Buchalter | Attorney Advertising

Written by:


Buchalter on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.