Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Tuesday, Oct. 16th.  The transcripts from Wednesday’s hearings are available on the Commission website (here), but the long-ishly titled “Supplement to Motion of Mr. Mohammad, Mr. bin al Shibh, Mr. al Baluchi, and Mr. al Hawsawi to Recognize that the Constitution Governs the Military Commissions,” filed yesterday, is undergoing security review and is not available yet.  NIMJ’s observer this week is Kieran Doyle, a partner at the New York firm of Cowan, Liebowitz & Latman.

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When the commission commenced at 9:00 a.m., only defendants bin Atash and Ramzi bin al Shibh were present. The other three defendants had waived their right to be present. Consequently, the day began with testimony and evidence regarding the procedure by which the defendants communicated their waivers. It is clearly important to the prosecution and Commission to make a clear record regarding the waiver of the right to be present. Prosecutor Swan questioned the Commander who had spoken to the absent defendants and secured the waivers and also offered the signed waivers into evidence. Unlike General Martins, Mr. Swan comes across as thorny and impatient. Most noteworthy is the fact that when David Nevin crossed-examined the Commander and started by asking her to state her name for the record, the prosecution objected and ultimately the Commander was not required to state her name for the record. Over defense objection, a page with her identifying information was placed in a sealed envelope pending a determination as to whether her identity should remain secret. Also worth note is the fact that Khalid Shaikh Mohammed indicated at about 5:00 a.m. that he wanted to go to court, but at 9:00 after he was transported from his cell to the holding pen outside the courtroom, he indicated he wanted to remain in the holding pen and watch the proceedings on closed circuit TV in the pen. Like everything else down here, this process took longer than one would expect.

Next up was AE 38, a motion regarding the defendants’ courtroom clothing. Counsel for the defendants started by acknowledging that most of the issues raised in the motion appeared to have been resolved, but the one remaining issue was Khalid Shaikh Mohammed’s right to wear a camouflage vest in the court room. Jason Wright handled this argument for the defense and began by noting that the room was filled with US military personnel in uniform. The judge cut him off and asked whether Khalid Shaikh Mohammed belonged to a military organization with a uniform dress. Captain Wright stated the Khalid Shaikh Mohammed had been a member of the US-backed and financed Mujahadeen fighting the Soviets in Afghanistan in the 1980’s and as part of that army had worn a camouflage vest. There followed some discussion of the government’s security-based objections that the vest would allow KSM to blend in with the U.S. military personnel in the courtroom and that the pockets in the vest posed a security risk. It was pointed out by defense counsel that the defendants’ hair and beards clearly distinguished them from the military personnel. As to the pockets, defense counsel agreed to remove them, or sew them shut, but also noted that Western style suits, the typical attire worn by defendants, have many pockets. There was also discussion of whether a camouflage vest was proper courtroom attire. The judge altogether rejected the idea that the security force is the appropriate arbiter of proper courtroom attire. In the end, the Judge said that he would be issuing a written decision whereby the defendants would be free to wear their clothing of choice with three exceptions: (1) if defendants choose to wear prison garb which indicates a confinement status, such garb must accurately reflect the defendant’s actual confinement status; (2) defendants cannot wear all or part of any current U.S. military uniform; (3) defendants may not wear any items that the Joint Task Force can state present a legitimate security risk.

Before the next motion was addressed, Cheryl Borman, attorney for bin Attash, asked the prosecution to provide her information identifying the witnesses that they would be calling to address her motion regarding the mold and rodent infestation in defense counsel’s offices and to also provide her the notes of those witnesses. The prosecution agreed to do so.

Next up was AE 009 which was a motion focused on the handling of classified information, but seemed to boil down to “presumptive classification.” Intertwined throughout the discussion of this motion was AE 013, the motion directed to the prosecution’s proposed protective order.

Before addressing the argument on this motion, some discussion of terminology will be helpful. Presumptive Classification refers to the procedure whereby anything the defendants say will be presumed classified until there is a determination otherwise. This springs from the government’s interest in preventing the defendants from testifying about torture by the CIA in Black sites. A 505 session is a closed court session that would include the judge and attorneys, but not the defendants. It can be initiated by any party, but since the motion focused on the ability of the defense to effectively advocate for the defendants, I will lay it out from the perspective of the defendants. Essentially, the defense would notify the prosecution and the court that there is potentially classified information that it anticipates introducing. The court and the attorneys would then confer to determine whether there are alternate ways for the defense to accomplish its goals without that evidence, perhaps through what is called substitute evidence. If no alternatives are available, and if the introduction of the evidence would seem to dictate that the proceedings would have to be closed, the commission would then hold an 806 hearing to weigh the government’s interest in keeping the classified information secret against the defendants’ and the public’s interest in open proceedings.

AE 009 can be broken down into at least two issues.

The first issue is whether all statements made by the defendants will be presumed classified until determined otherwise. The second issue is whether the defense will be provided with a liaison Defense Security Officer to act as a conduit to the Original Classification Authority to enable the defense to efficiently and accurately determine which of the client’s statements are classified and which are not.

Presumed Classification

According to the defense, the prosecution has, over time, taken various positions on the status of statements made by the defendants. At one time the prosecution’s position was that “all statements of the accused are presumed to contain information classified top secret.” The defense has interpreted this to mean that if a defendant said “I want a tuna fish sandwich for lunch” defense counsel would not be permitted to repeat this statement in open court.

It is worth note that in response to this example the Judge suggested that the defense was being unrealistic and pointed to the fact that the previous day’s statements by the defendants during the discussion of their attorneys and the waiver of their appearance had not prompted the red light to go off and the audio feed to be cut off by whoever has their finger on the red button. In other words, the defense teams’ concern that everything their clients say is classified is undermined by the fact that they spoke in court without being censored.

Getting back to the argument over presumed classification, the prosecution seemed to say that it does not advocate an approach whereby all that the defendants say should be presumed classified, and instead advocates an approach whereby defense counsel must treat as classified information that which it knows or has reason to know has been designated classified. Even if the court adopts this standard, the fact will remain that the defendants’ memories of their experiences during their post-capture detention, i.e. the approximately three years when they were in custody at a black site, would remain classified. The theory is that those who participate in interrogations are not permitted to disclose any information about those interrogations and the defendants as “participants” are not permitted to share their memories of those interrogations. Throughout the hearings, this proposition was eloquently challenged by defense counsel and by the ACLU as wrongfully laying claim to the thoughts, memories, perceptions, observations, experiences and minds of individuals, particularly when the information that the government seeks to protect was imposed on the defendants against their will.

A Defense Security Officer?

The second main issue raised in AE 009 is whether the defense will be provided a Defense Security Officer to help them determine whether information uncovered in their representation of their clients is classified. The DSO would act as their go-between with the Original Classifying Authority to whom the defense is not given direct access. To illustrate the difficulties defense currently encounters, Kevin Bogucki, attorney for Ramzi bin al Shibh, explained that in another case he is handling, another High Value Detainee had given him a note and he endeavored in June 2012 to secure a determination from the Original Classifying Authority whether the note, being a statement made by a detainee, was classified. Two months later, in August 2012 the note was retuned to him stamped “unclassified.” The note read, “Labron James is a bad man. He should apologize to the city of Cleveland.” The government opposed this application, arguing that the defense already had on its team an expert in the handling of classified information. A humorous exchange about the proposed Defense Security Officer occurred when James Cannell, counsel for al Baluchi, pointed out that the Navy provided such personnel and then said to Judge Pohl (an Army Colonel), “maybe it is an Army/Navy thing, your honor” to which the judge replied “No, the Navy may know what they are doing” with the emphasis on “may.”

As we returned from lunch, we learned that the Hamdan decision [by the U.S. Court of Appeals for the D.C. Circuit] had come down. Someone secured a copy and a group of NGO representatives (ACLU, Brennan Center, New York Bar, Seton Hall, National Association of Criminal Defense Attorneys, and NIMJ) sat in a group passing it around page by page. We expected it would come up as soon as court resumed since it seems to require the dismissal of the Material Aid charges against at least one of the defendants. But the day passed without its being mentioned.

During the afternoon session, the court heard arguments from an attorney representing several intervenor news organizations and from the ACLU attorney, regarding presumptive classification and closed proceedings. The ACLU argument was particularly noteworthy for the frankness of its comments, observations and accusations. For example, the claim was made that the presumptive classification framework and the 40-second delay in the audio feed of the proceedings was all about keeping the American people from hearing about torture, detention and black sites. Also, the argument was made that the case against prior restraint is stronger here than in the Pentagon Papers case, since here there is an ongoing death penalty proceeding, the public has the dual interests in knowing what was done in its name and knowing that the trial of these accused is fair. While in the Pentagon Papers case, the information was taken from the government, here the government inflicted the actions on the detainees, and much of the information about the treatment of these defendants has already been disclosed to the public.

Court ended at 4:00 on Tuesday with the ACLU to resume argument and with the defense and prosecution continuing argument regarding the protective order on Wednesday.

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