9/11 Trial Officers Explain “Ransacking” of Legal Documents

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Some light was shed yesterday on the apparent “ransacking” of legal materials from defendants in the 9/11 trial.

Lt. Commander George A. Massucco, assistant to the Staff Judge Advocate at Guantanamo Bay, produced the materials, which he said were seized as part of Standard Operating Procedures to maintain safety at the prison facility.

Massucco testified that some of the materials had been confiscated because they were improperly stamped. Legal mail is marked with a stamp when approved, but the stamps need to be dated and initialed, markings which were missing from some of the documents.  He said other materials were seized because they “were disturbing,” and the staff was “concerned for safety reasons” the material would remain in cell.

Among the items in that category were three books in the possession of co-defendant Ramzi bin-al-Shibh: The 9/11 Commission Report, Perfect Soldiers: The 9/11 Hijackers: Who They Were, Why They Did It by Terry McDermott, and The Black Banners: The Inside Story of 9/11 and the War Against al-Qaeda by Ali Soufan.  Massucco said he could not account for three pages of legal material bin-al-Shibh’s lawyer, James Harrington, said were also missing.

Among the materials taken from Khalid Sheikh Mohammed’s cell was toilet paper with writing on it, and a metal pen refill hidden in the binding of a book.  All the items except Black Banners and the pen refill were to be returned.

This week’s controversy over the confiscation of materials from the defendants’ legal bins drew into sharp relief a key point of contention these hearings need to resolve: balancing the confidentiality of attorney-client communication with the need for security at the prison facility.  At the end of the day, the judge threw the problem to both teams to solve; he ordered the defense team to draft a plan for privileged communication to submit to the prosecution in one week.  The prosecution will have another week to respond with their own proposal, or one day to respond if they have no revisions to offer.  The judge will then issue an order based on the proposals.

Early in the day, Vice Adm. Bruce MacDonald (Ret.), the military commissions’ convening authority, took the stand and was questioned by Navy Cmdr. Walter Ruiz, the lawyer for co-defendant Mustafa al Hawsawi. Ruiz was arguing that his client had been improperly charged — in legal terms that the referral of charges against his client was “defective.”

As the convening authority, MacDonald — who answers only to the secretary of defense — is responsible for managing the entire military commissions process, including referring charges against he accused, as well as logistics and personnel.

The exchange grew quite heated, with MacDonald becoming angry and shouting responses at Ruiz, whose questions centered around a lack of resources he had been given to defend his client, such as mitigation experts and a translator.  “You were provided opportunities in March of 2011. We provided eight to 10 cleared translators to be dedicated to your team. You rejected those translators,” MacDonald barked.  “The person you picked didn’t have a security clearance.”

Adm. MacDonald’s testimony was cut short however, in order to give the court time to address the issue of the materials seized by the guard force.  His testimony about for the charge of defective referral, as well as a charge of “unlawful command influence,” will continue when the hearings reconvene in April.

There was one area of solid progress in court today.  All sides agreed to the removal of microphones made to look like smoke detectors that had been installed in rooms used by defense lawyers to meet with the accused.  “The sooner, the better,” Judge James Pohl said.  “That would’ve been my low-tech solution anyway.”

In this sketch by courtroom artist Janet Hamlin, the self-proclaimed terrorist mastermind Khalid Sheikh Mohammed, right, talks with a female member of his legal team, dressed in Muslim attire in respect of the detainee's cultural customs, during the pre-trial hearing of the death penalty case against the five Sept. 11 attack suspects at the Guantanamo Bay U.S. Naval Base in Cuba on Tuesday, Feb. 12, 2013. (AP Photo/Janet Hamlin)
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