Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Wedenesday, Oct. 17th. The transcripts from Thursday’s hearings are available on the Commission website (here).  The defense’s supplement to their motion for an advsiory opinion on whether the the Constitution governs the Military Commissions is still not available, but additional coverage is available here and here from Thursday’s hearings. NIMJ’s observer this week is Kieran Doyle, a partner at the New York firm of Cowan, Liebowitz & Latman.

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The proceedings on Wednesday October 17, 2012 began with testimony regarding the defendants’ presence/waiver of right to be present. When the session opened, Mr. Al Baluchi (also known as Ali Abdul Aziz Ali) was the only defendant present. The anonymous (up to this point) Commander (who I just bumped into at the NX grocery store moments before writing this email) testified that at 5:10 al Baluchi had signed the waiver form indicating he did not want to attend the hearing, but at 5:50 said he changed his mind and asked to be taken to court. I could not ascertain the motivations of the defendants concerning their presence, or lack thereof. Perhaps they are trying to test the workings of the system, just trying to cause mischief, or sincerely vacillating as to whether they should be present. The commander also testified that Mr. Bin Attash had said that he did not want to attend, but said that he may change his mind later and choose to attend in the afternoon. The judge ordered that someone check with Mr. Bin Attash at 11:30, stating that since Bin Attash had already indicated he might want to attend, it would be appropriate for the government to follow-up. In the end, Mr. Bin Attash did not attend in the afternoon. The Commander also testified that Khalid Shaikh Mohammad had indicated that he wanted to come to court, and had been transported to the holding pen, but at 8:50 he said he did not want to come into the court room. At some point during this morning session, General Martins told the court that he had been handed a note stating that Khalid Shaikh Mohammad wanted to join the proceedings. During the mid-morning break he was brought to the courtroom wearing the camouflage vest. The question that came immediately to my mind was whether he looking to make a grand entrance in his new garb? Of course, we will never know. And other than a small stir in the gallery and the urgency with which the sketch artist began to draw him in his vest, nobody reacted.

Getting back to the substance, the argument by the ACLU attorney, Hina Shamzi resumed. She said that there were three problems with the prosecution’s proposed protective order: (1) it applies to the memories and experiences of the defendants, even those that have already been declassified by the government like the fact that Khalid Shaikh Mohammad had been water boarded 183 times; (2) it applies to all stages of the proceeding including trial (the prosecution later consented to a change in the language so that the a protective Order would not cover the trial) ; and, (3) it allows for prior restraint via the 40 second delay. Her calm and frank discussion of the waterboarding, void of all euphemisms, was both refreshing and chilling. Ms. Shamzi’s argument was really quite compelling and well delivered and included the following paraphrased statements: “It should go without saying, but I think the CIA may need to hear this. Thoughts, experiences and memories belong to human beings, not the government; the government can’t make someone a witness to its illegal conduct and then stop them from relaying their recollections in the name of secrecy;” and “the defendants are the authoritative source on the torture programs. Their witness to those programs will die with them, or stay with them as long as they are incarcerated.” She also argued that the legitimacy of our proceedings are at risk and that if any other country interrogated and prosecuted its detainees this way, we would condemn it.

Ms. Baltes argued for the government. She stated that Judge Kaplan’s protective order in Ghailani was very similar to the proposed order here, and that the 40 second delay strikes a fair balance and actually reduces the amount of time that the court proceedings would have to be closed absent the technology. The judge asked about the claim that the protective order prevents disclosure of the memories of the procedures that were used on the defendants and Ms. Baltes answered by arguing that the proposed protective order does not restrict any communications from the defendants to their attorneys. Ms. Baltes made what seemed to be a fairly odd argument. Specifically, she argued that “it is not as if the government is asking the defendants to sign an non-disclosure agreement (NDA), that would be absurd.” But it would appear that the government is, instead, asking them to honor an NDA they never signed. The prosecution also argued that the court should not engage in a determination of what information is classified and, in any event, cannot override the government’s classification of something as classified. This last point appears to be the view of the judge as well. The prosecution also argued against the defense being assigned a Defense Security Officer to communicate between the defense and the Original Classifying Authority.

James Connell, counsel for al Baluchi, addressed the court to further discuss the issue of the defense being assigned a Defense Security Officer. He stated that as of now, he has no way to fulfill his obligation to address with OCAs documents that are marked “classified,” yet they do not appear to be in any way sensitive. He said that has sent many emails to the Convening Authority asking how to address this problem, but those emails were met with silence. In addition to a way to communicate with the OCA, the defense asked the Judge to order the Government to provide a classification guide to help those given access to classified information the procedures as to how such information is to be handled. Later, David Nevin argued that despite its stated concern for the classified information, the prosecution does not follow its own rules. For example, according to Mr. Nevin there are guards who do not have sufficient clearance to handle the defendants, and therefore the defendant’s allegedly classified memories could be disclosed to those unauthorized persons. Also, the government assigns defense counsel offices to meet with the defendants. Yet, those offices are not Sensitive Compartmented Information Facilities (SCIFs). And Cheryl Bormann added that the Red Cross meets with the defendants and has free communications with no obligation of confidentiality.

The afternoon session brought an argument over who can make “need- to-know” determinations. This arises when on individual with clearance, i.e. “Authorized Person” wants to convey classified information to another Authorized Person with a proper clearance. The prosecution wants the OCA to make all need-to-know determinations for the defense, and the defense wants the Authorized Persons themselves to be able to make the determination, which apparently is the norm.

When defense counsel Kevin Bogucki began to share his views on the classification of defendants’ recollections of detention, the red light went off, the audio feed cut out and the gallery filled with very loud static. It turned up that Bogucki was offering a hypothetical which the censor thought was a description of actual interrogation methods. It was noteworthy that even though it was determined that this was not classified, the Judge admonished him, stating that Bogucki would be permitted to make a point with such a hypothetical that one time only. It clearly seemed to me, that the red light and its disruption, possesses the potential to cause a chilling effect.

Once the proceedings resumed, Bogucki posited “if I beat you, if I chain your hands to the ceiling, I am not providing you information. At most, I can give you a memory of my conduct, and that can’t be classified.”

Shortly thereafter, David Nevin told the Judge that Khalid Shaikh Mohammad wanted to say something, but he did not know what. The judge asked if it was classified, and Mr. Nevin said he did not know. KSM then said, “definitely not classified.” After a Short break, the judge said that he would trust KSM and let him speak and would rely on the 40 second delay if he tried to disclose classified information.

KSM then said: “in the name of God most graceful. The government at the end of the argument gave you advice. They told you any decision you issue, you need to keep in mind the National Security . . . and that nearly 3,000 people died. You have to keep in mind that the government is using the very definition of national security as it chooses. And that expression has a definition in the Military Commission rules. We have heard the term national security 10s of times. When the government feels sad for the killing of 3000 people on 9/11, we should also feel sorry that the American government has killed thousands of people. At this point, KSM corrected the translator in English saying “millions”]. It has killed, detained and tortured children under the name of national security. The President can throw someone into the sea in the name of national security and legislate assassinations in the name of national security. My advice to you is that you don’t get affected by crocodile tears because your blood is not made of gold and ours, water.”

There was no press conference after the October 17 hearings.

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