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Robert C. O’Brien From Gitmo At The Trial Of Khalid Sheikh Mohammed

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HH: We have a lot to do today, because bad things are happening in Ukraine. Stuff is happening all around the world, terrible tragedy in South Korea. But I begin today by talking to my friend, Robert C. O’Brien, who you’ve heard here in studio many times. He joins us from the naval base at Guantanamo Bay in Cuba where he is a civilian observer at the trial of Khalid Sheikh Mohammed, or what was supposed to be the trial. Robert, can you hear me?

RO’B: I can hear you, Hugh. Greetings from Free Cuba.

HH: Well, that’s a great way to begin, greetings from Free Cuba. Tell us what is going on, because there’s a story in the Guardian at this hour that the families of the victims of 9/11 are just outraged at what is happening thus far.

RO’B: Well, these are the pretrial proceedings. General Martins, the prosecutor, has said that the trial will take place in January of 2015. But the idea this week was to get through a bunch of important motions to move the process along so we could bring the mastermind of 9/11, Khalid Sheikh Mohammed, and his co-conspirators to trial, and ultimately to justice for the crimes they committed. There was, there has been a bit of a hold up. The defense has claimed that the FBI has approached at least one of the members of the defense team and asked them to become a confidential informant for the FBI. That remains to be proven, but it’s obviously a serious allegation for defense lawyers. And Judge Pohl has slowed the proceedings down so that an investigation can take place to see if that did in fact occur, and if it did, if there was more than one member of the defense team approached by the agency.

HH: Now that would be, that would be a truly bollixed up situation. And some of the family members are speculating out loud that the FBI wants nothing more under the direction of Eric Holder than to throw this back into the civilian courts. But you’re at Gitmo for a reason. He’s a very dangerous guy. What’s the physical layout of these proceedings, Robert O’Brien?

RO’B: It’s very interesting, Hugh. Even though you’re on the naval base here on Guantanamo, and it’s not easy to get on or off the base, there are a few flights that are controlled by the Navy. Even within the base, there are rings of security around the courthouse. The courthouse is built on the tarmac of the old naval air station here. The new airport has been built over across the harbor, and you’ve got a brand new courthouse surrounded by concertina wire and fences, and barriers up to prevent snipers from taking a show. And within that, a ring of security you have to go through, another couple of security checkpoints to actually get into the courthouse. Once you’re in the courthouse itself, it’s a large, modern, fully-functional courtroom that would be familiar to anyone who has been to a federal court in America, except the back part of the courtroom is partitioned by glass, and the civilian observers, the media, and the families sit behind the glass.

HH: And what is the level of interaction during proceedings? Are you soundproofed so you can talk? Or is it the same as a federal courthouse?

RO’B: It’s the same as a courthouse. What is interesting is that there is a 40 second delay from what we watch happening in the courthouse and what we hear via audio. And the reason for that is if classified information is discussed in court, the audio feed can be cut during that 40 second delay. And so we have a TV screen that has the proceedings with the sound synched to it, but if you’re not watching the TV screen, you can look into the future and watch the judge and the lawyers getting up and standing at the podium and making their arguments to the judge. You can watch the defendants. And you get it all on a bit of delay.

HH: Now Robert O’Brien, you are obviously a veteran of the Bush administration Department of State over at the U.N. General Assembly as a delegate there, and you are the managing partner of the Arent Fox law firm in Los Angeles, so you’re a skilled lawyer and a diplomat. I’m curious if you think anyone could quarrel that KSM is getting due process.

RO’B: He’s getting an incredible amount of due process. The rules for the military commission are very similar to the rules in federal court. He’s represented by a team of lawyers, military lawyers and highly-skilled, well-known civilian lawyers. His co-defendants are in the same position. And I keep thinking as I look over at the families, and look, we believe in due process. We are different from some of our adversaries. We’re certainly different from Khalid Sheikh Mohammed and his ilk, where you would get no due process if they get a hold of you. And so that’s important as Americans that we have, that we make sure that they’re adequately defended. But I think it’s got to be tough on the family members to look across the courtroom and to see KSM with his beard dyed red. He uses berries and fruit juice to dye his beard red, sitting there in a turban, talking to his defense lawyers with a team of people attending to him. It’s got to be a little tough on the families, so I certainly understand their frustration.

HH: Now do you have a chance to interact with either defense or prosecutors? Or as a civilian observer, I don’t know if you’re kept at arm’s length, or if you’re in fact allowed to interact with them.

RO’B: No, we’ve had great access to them. For example, General Martins is the prosecutor who is just an incredible guy. He’s a Harvard Law grad, Ranger. He was General Petraeus’ JAG over in Afghanistan. He’s really a warrior/scholar. He spent an hour and a half with the NGO observers yesterday. And of course, I’m a little bit of an oddball here, Hugh. We’ve got Human Rights Watch and the ACLU and Amnesty [International], not the usual crowd that you’d see at a GOP event. And Martin sat and took questions from all of them for as long as they had questions. He answered them honestly and forthrightly. There’s been, and look, we’ve had similar experiences with the defense lawyers who have been very open to us and giving us their views. So it’s been a phenomenal experience on that front, and we’ve been pleased by the access, or at least I’ve been pleased by the access that we’ve had to both sides.

HH: Now I’ve talked to a number of people who have been down there – Sinise and John Ondrasik and a bunch of people that have entertained there. But I am curious as to the feeling of remoteness or not at Gitmo this long into the war on terror. Obviously, we’ve got the invasion of Ukraine pending. It might even be underway as we speak. And we’ve got tragedy in South Korea. Are you getting a CNN news feed, not that that matters, because it’s all Malaysian Air 387. Or are you totally cut off?

RO’B: You know, we’re a little cut off. There is some television. We’re living in tents. They’re wood-floored tents. And the Army engineers or the Air Force engineers that built the camp did a nice job for us. But it’s somewhat rustic. It’s comparable to being out in Afghanistan. You really get the feel here that you are OCONUS as the military would say, or outside the continental United States. And Gitmo, you feel like you’ve traveled back to 1965. I’ll share some pictures with you when I get back. I mean, there are old abandoned machine gun nests and pill boxes. There are old aircraft hangars with peeling paint. Along some of the old docks where the battleships would come in, there are big rows of payphones, because the sailors would jump off the ship and want to get to a payphone and call their wife or girlfriend back home. So you feel like you’ve stepped back into 1965. It’s kind of in a state of arrested decay. And then within that cocoon, there is this brand new, very modern facility for a new mission. And the new mission is to provide justice for the victims of 9/11. And so you have the camps where the detainees are held. You’ve got the courthouses. And so you’ve got kind of this modern judicial infrastructure which is very different from the old mission at Guantanamo that you remember from A Few Good Men and the old days where there was a Marine armored brigade ready to repel the Soviets and Castro from invading the base.

HH: Now Robert O’Brien, we’ve been to remote places. I’ve been to Kosovo, which is a pretty remote base and not a lot of creature comforts. You’ve been to Afghanistan and Iraq and other places like that. But we forget, guys and gals at Gitmo, soldiers, sailors, airmen, Marine, Coast Guardsmen, they’re serving as well. How’s their morale? Do they hate this duty? Or is it good duty? Is it interesting duty? They must be glad to have you there and a bunch of people there.

RO’B: Well, I’m not sure if they’re glad to have me here, but I’ll tell you, every time I come to a base, and it doesn’t matter if it’s here or at Camp Edgars in Afghanistan, or I was at NorthCom last week in Colorado Springs, you know, you’re so heart-warmed by the soldiers, sailors, airmen, Marines, Coast Guardsmen. They’re young kids. These are 18, 19, 20 year old kids. And they’re the most professional, courteous young folks that you’d meet. They’re courageous. They’re ready to do their duty for the country. And it really makes you proud to be an American, especially when you spend time with the enlisted folks and the non-commissioned officers. They’re just fantastic young Americans, and you know, I think they enjoy being in Cuba. It’s remote. You know, it’s difficult to get cable. They’ve got two radio stations down here, one that plays country, and one that plays pop. It’s, so you feel like you’re in a different country, that’s for sure. But there are some comforts. There is a Subway and Pizza Hut, so there are some comforts for the soldiers and sailors and Marines, and a lot of them go scuba diving. There are workout facilities that you’d find at most bases. So I think they’re having a good time down here, and the weather is not bad.

— – – – –

HH: Robert, I told you that over at the Guardian, it’s being reported that the ten family members among them who came down to watch these proceedings, there are fears that the FBI secret approach to the classification specialists, one of the defendants’ lawyers, is going to throw the whole thing into a cocked hat. What do you make about that? And what difference does it make, because how are these proceedings at Gitmo different from what they would be in New York?

RO’B: Well, listen, I don’t want to ascribe any bad motives to the FBI, but I can’t imagine, I asked General Martins about this. He couldn’t talk about it because of the motions that were pending. I can’t imagine that General Martins and the prosecutors were happy to find out that the FBI had contacted a member of the defense team. And you know, to their, I certainly understand that the defense lawyers being concerned that there may be FBI informants on their defense teams. That’s a legitimate concern. It’s something that was raised with Judge Pohl, and the judge is looking at it. I don’t think that the FBI, is that this is some conspiracy to throw this into federal court. It’s interesting, because some of the human rights groups want these cases to be in federal court. I don’t think the FBI is purposefully trying to slow these proceedings. I can tell you that the protections that Khalid Sheikh Mohammed and his cohorts are receiving here from a due process point are substantial. I mean, they have learned counsel. They have top civilian death penalty lawyers that are paid for by the federal government, by you and I, our tax dollars. They have uniform military JAG officers who are familiar with military proceedings defending them. These teams have five or six lawyers on them. They have paralegals. They have experts. All of this is paid for by the government – the travel, the expense of coming here. They’re entitled to full discovery that you would get as a criminal defendant in a prosecution at an Article III or a federal court. Their lawyers are given security clearances. So they have an extra level of appeal of their convictions if they’re ultimately convicted. They can take an appeal up to the military appellate court. They can then to the D.C. Circuit, and then they can go to the U.S. Supreme Court. So in some ways, they have more protection and better rights than average American defending himself or herself in federal court.

HH: How would our friend, Erwin Chemerinsky, respond, though? What would he argue and point to as being deleterious to their cause?

RO’B: Well, there are some differences between the commission and federal court. I don’t think they’re huge, but they are important. So for example, the military jury, which will be made up of military officers and not of civilians, will hear, and that’s one difference, will be able to hear hearsay evidence. Now that’s important, because a lot of information that we found was either in documents that were picked up in caves, or where we took care of Osama bin Laden and picked up the intel as part of that raid, or from witnesses that can’t leave Pakistan or can’t leave Afghanistan, but have spoken with investigators or lawyers. And those statements can come in. Now the court has to judge their credibility, because the witness isn’t here, but it is hearsay that can come into court. Second, if the defendants made admissions, voluntary admissions before receiving their Miranda rights, so for example, if our soldiers or Marines pick up these bad guys in Afghanistan, they don’t necessarily, they don’t give them their Miranda rights. It’s not a criminal situation. It’s combat. And so if these guys blurt out that they violated the law of war, that they were involved in some terrorist activity, that can come into these proceedings as well, even though they didn’t receive Miranda rights from the Marine corporal that caught him when he was on patrol in the Hindu Kush. And then last, the venue is different. I mean, the venue is not in Lower Manhattan or downtown Los Angeles or Washington, D.C. The venue is down here in Guantanamo, and there’s a reason for that. It’s a reason that it’s for safety and security. And so those are the differences, and those are the things that Erwin or Professor Chemerinsky or the folks here at Human Rights Watch or the ACLU would point to as being unfair. But there are very significant safeguards built in to protect these defendants.

HH: Robert O’Brien, my last question goes to the most aggravating circumstance. Khalid Sheikh Mohammed wanted to enter a guilty plea. And everybody knows that. And his defense counsel know that, I assume. What do they think about representing someone who wanted to admit to the guilt of 9/11, but somehow has ended up now playing the procedural puppet master?

RO’B: Well, my understanding is that that plea would have been in connection with a life in prison term and not a capital…I guarantee that he wouldn’t be, I don’t know, I guess the Navy doesn’t hang people from the yardarm anymore, but that it wouldn’t be a capital case. So I think that’s one of the things that caused the plea to go away. But I’ll tell you what’s interesting is that he’s got very, very learned counsel, very sophisticated lawyers, and they’re doing a great job procedurally to protect these defendants. But ultimately, when they get to trial, the rumors we’re hearing, and this is, you know, and the implications from some of the filings, although the defense has not come out and said what their defense is going to be, it’s not that he had an alibi, it wasn’t him, it was another Khalid, and he got caught up in a dragnet, apparently, the defense is going to be that this was self-defense on behalf of the Muslim ummah, the Muslim world, and that because they didn’t have an air force, they had to go hijack these planes to create an air force. So you know, if in fact that turns out to be their defense, I don’t think it’s going to go very far, and it’s going to, you know, the procedural process will end with a trial. And if that’s the defense, then my guess is that he and his co-conspirators will be convicted and punished.

HH: We’ll debrief a little more when you get back, Robert O’Brien. A quick question, Edward Lucas, who’s a columnist for The Economist, an editor at The Economist, a columnist for the Mail, I hope I’m wrong, but historians may look back and say this was the start of World War III. They’re looking at Ukraine. I don’t know how close you’re following, but all the news out of Ukraine is bad. Your reaction?

RO’B: Governor Romney said Russia is our number one geopolitical foe. We’ve talked about on your show how American weakness is provocative. Vladimir Putin obviously wants to put his name on the big board with Peter the Great and Stalin and others as a Russian leader who conquered his neighbors. And I think he’s in the process of doing so. Unfortunately, it couldn’t come at a worse time for us with cuts to our defenses, and ending two wars in Iraq and Afghanistan, and with a leadership that believes, this is the White House characterization of their national security policy, that’s leading from behind. You’re not going to stop Vladimir Putin from rolling through Eastern Europe if we’re leading from behind.

HH: I hope on the flight back, you’ll download the book HRC by Jonathan Allen and his co-author. I am going to spend three hours with him talking about the foreign policy of the Obama administration and Hillary Rodham Clinton tomorrow and Friday, and I think you’re going to find it is absolutely terrifying in its ineptitude as I did. Robert C. O’Brien at Gitmo, thanks for calling from Free Cuba.

End of interview.


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