Case Coverage: 9/11 Case

6/3 Session: The Rules Are the Rules

By Helen Klein Murillo
Tuesday, June 7, 2016, 11:40 AM

It’s Friday morning, and we’ve established that the defendants know their rights to be present but all save Ramzi Binalshibh and Ammar al Baluchi have declined.

And we’re off. First, Military Judge James Pohl wants Jim Harrington, attorney for Ramzi Binalshibh, to know that whatever documents he gave to the court information security officer (CISO) are too late. The CISO needs 24 hours to review the documents for classified information. Judge Pohl, stickler for the rules, isn’t saying that Harrington is trying to slip in classified information but the rules are the rules. Judge Pohl agrees to take a break so the CISO can review the unclassified documents for Mr. Harrington to use in his witness questioning, but he’s not pleased: “one minute to nine is not the time to give it to him . . . it just is not a very efficient way to run the railroad.” He reminds Harrington that “it’s not that hard to plan ahead of time.”

A short time later, we’re back from recess and although the documents have been cleared, Harrington wants Judge Pohl to know that it wasn’t really his fault: “normally in every court, including this court, is you don’t show something to somebody — for somebody’s recollection and have it published to the public and everybody else; you show it to the witness, and that document usually never gets into the record. It’s just used for the purposes of refreshing recollection.” Judge Pohl and Harrington are on the verge of bickering. The judge notes that the rule prevents display of the documents that haven’t been reviewed and “display also means it can’t be displayed on the monitors that the gallery can see.” Harrington: “But they wouldn’t be able to, Judge.” Judge Pohl is exasperated: “Okay. Okay. Okay.” But Harrington finally concedes that this was all just a big misunderstanding, no one’s fault: “I meant display to the witness. You obviously meant display in the broader sense.” Got it.

Now, we can get on to the witness, a U.S. Army “Current Camp Commander” (though, let the record show, now a former camp commander). Clay Trivett for the prosecution begins with the direct. Unsurprisingly, we’re still talking about the bird noises and vibrations, a subject we also discussed yesterday. The Commander knew about the order not to harass Mr. Binalshibh with the noises and vibrations and believes everyone followed the Judge’s orders. Mr. Trivett notes that GTMO is constructed from concrete and metal and asks if its heavy doors make noises when closed. The Commander describes these noises: “Like a pneumatic pop. Like a slight little pop or maybe even it would sound like a little bang.” The commander confirms that sometimes maintenance is done—replacing air conditioning units, fixing overheads in the outdoor rec areas—but that the detainees are always warned when the maintenance will occur.

As to whether Mr. Binalshibh would have any way to hear the guards in the control room or see them as he was being moved to and from his cell: no, not to the knowledge of the Commander. The Commander personally inspected the control room and did not find “a button . . . that controls machines that make noises and cause vibrations in Mr. Binalshibh’s cell.” No evidence of machines that can bang on the walls or shake the metal fences. The commander even spent some time in cells himself to determine there was no vibrating or shaking. Still, about 90 percent of the complaints he fielded as the officer in charge came from Mr. Binalshibh and were about these noises and vibrations. Various threats accompanied those complaints—“that he would have your personal information, that he would have people looking for you, and if you thought you were safe here you were stupid, and he would get you either here or somewhere else.”

Mr. Trivett wants to know about a particular interaction on March 3, in which Mr. Binalshibh apparently says the Commander told him he needed to follow only standard operating procedures and not Judge Pohl’s order. The Commander denies that he would say such a thing and acknowledges that Judge Pohl’s order would take priority over SOPs if there were a conflict—which there isn’t.

Mr. Trivett concludes with the not-so-subtle suggestion: "Is there a camp psychiatrist available to Mr. Binalshibh who may be able to prescribe him medicine if he was interest[ed] in taking it again?”

“Yes.”

“No further questions.”

Harrington takes over on cross. First, he asks the Commander about his experience in prisons. He’s been assigned to prisons in Afghanistan and the Disciplinary Barracks in Kansas, but never to facilities that house pretrial inmates. And he hasn’t had any special training with pretrial detainees, save for the standard SOUTHCOM training before being deployed. Before coming to GTMO, the Commander didn’t know that Camp VII housed the 9/11 defendants, nor that it was the most secure facility at Guantanamo. He didn’t know who was housed there until shortly before arriving. And when he got to GTMO, he met with some of the detainees—the tiers leaders, “an individual that’s kind of the spokesman for the detainees,” one on each tier.

Harrington presses the Commander on how many interactions he had with Binalshibh at Camp VII. “Off the top of my head, I don’t know.” But Harrington wants a best guess: “Two? Three? Five?” The Commander doesn’t want to speculate but estimates “several times.” “What does several mean? Is it five? Is it ten?” The Commander isn’t going to guess, though. Now Harrington suggests that the Commander isn’t prepared — he hasn’t reviewed Binalshibh’s DIMS entries (recordings that would indicate interactions with inmates, for instance) in preparation for testimony. No, he didn’t review the DIMS but he did review some letters written by Binalshibh.

The Commander acknowledges that he was not at the camp at night when Mr. Binalshibh complained about the noises and vibrations disrupting his sleep. He doesn’t have any personal knowledge about whether the guards were in fact making noise at night to harass Binalshibh and disrupt his sleep. Harrington asks what he would have done if he thought a guard was harassing Binalshibh and the Commander indicates he would have removed the officer and investigated if the allegation were credible. But when Harrington asks if he investigated on the occasions that Binalshibh accused a particular guard of harassing him with noises and vibrations, the Commander responds: “There was no need to investigate it. We didn’t deem it was credible.” He did, however, investigate complaints against the control room guards. Those weren’t credible, either, he says.

After a lengthy back and forth on whether the Commander investigated, Harrington gets to the heart of it:

Q: Major, do you consider Mr. Binalshibh to be your enemy?

A: I consider him to be a detainee.

Q: And do you consider Muslims to be your enemy?

A: No.

Q: Do you consider Islam to be your enemy?

A: No.

Back to the inspection of the facilities, Harrington wants to know about the commander’s educational background. “I have a graduate degree in business and organizational security management.” But no engineering degree? “No.” No mechanical engineering training, no electrical engineering training, no plumbing experience, no construction experience, no “sophisticated computer skills,” no experience with sophisticated software. He never asked for the schematics of Guantanamo, nor ensured that the place wasn’t built with the capacity for “the surreptitious making of noises, vibrations and sounds.”

After extended questioning on the specifics of air conditioning and electrical systems at GTMO and exactly how the commander investigated the noises, Nevin interjects: “You Honor, would a break be possible at any point?” Judge Pohl says he plans to stop at noon.

And speaking of air conditioning, Ms. Bormann wants the heat turned up: “It’s really cold here.”

Harrington clarifies that Binalshibh would be able to hear the control room if they kept their button pushed to respond to him. Yes. They discuss Echo II — the visitation facility where detainees meet with their counsel, where Binalshibh claims he was also subjected to harassing noises and vibrations. Finally, Harrington asks about the correlation between Binalshibh’s verbally abusive complaints and the times he complains about not being able to sleep: “And these times when he yells or curses, those are times when he has complained that he has not been able to sleep; isn’t that right?”

“He yells or curses usually when he’s complaining about the noises, or that he can’t sleep.”

Finally, “Would it be fair to say that those are made when he’s in a state of extreme frustration?”

The Commander responds, “When he’s angry, yes.”

Commissions break for lunch, to reconvene in a closed afternoon session.