Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Thursday, Oct. 18th. The transcripts from all of last week’s hearings are available on the commissions website (here). Coverage and observations from last week’s hearings are also available at Lawfare (here) and the ACLU (on First A. issues, here). See also some interesting commentary (here) from David Frakt, a former lead defense counsel in the Military Commissions and NIMJ Advisor, on Hamdan and the military commissions. NIMJ’s observer this week is Kieran Doyle, a partner at the New York firm of Cowan, Liebowitz & Latman.
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On Thursday October 18, 2012 , Khalid Shaikh Mohammed and Mr. bin Attash were the only defendants present. The morning again began with the unnamed commander testifying that she advised the defendants that today was Thursday October 18, 2012, that there would be a court proceeding at 9:00, and that they had to the right to attend. She then testified that the three defendants not present had waived that right and had signed the waivers that were put into evidence.
After this housekeeping, the Court addressed AE 0014, which was a prosecution motion seeking a protective order for information disclosed in discovery that is not classified, but may be sensitive or may be personal information. This proposed protective order would apply to classification during discovery, not during motion practice or trial. Mr. Ryan indicated that discovery would involve the exchange of over 200,000 documents with much personal information, 911 calls, interviews with persons who saw the planes fly into the buildings, people who rented mailboxes to Mohammed Atta, and information about investigation techniques. The prosecution also asked the court to keep confidential the names of the jurors and argued that in organized crime cases this was not an unusual step. He then stated that discovery material should be used only to defend the accused, suggesting that the protective order focused on the discovery process would not have a harmful effect.
James Cannell, attorney for Mr. al Baluchi, argued that the proposed order reversed the presumptions of confidentiality in favor of the prosecution and constituted a prior restraint. As a practical matter, he said that the proposed order would inhibit his ability to investigate. For example, if the discovery material contained the name of a witness who has witnessed an event from his kitchen window, the order would prohibit him from going to that witness’ neighbor and saying, “John Smith says he saw a Ryder van from his kitchen window on June 1, 2000. Did you see it? Do you know if he wears glasses or has vision problems? Is he a generally honest person? Etc.”. As a compromise, Mr. Cannell suggested a framework whereby either party could designate specific discovery material confidential, and the other party would have the opportunity to either accept that designation or object to it and challenge it in court.
David Nevin was next, and he objected to his client Khalid Shaikh Mohammed’s not being able to see discovery material, noting that this is a capital case and Mr. Mohammed’s life is at stake.
Cheryl Bormann, for Mr. bin Attash, reiterated this point, saying that defendants in capital cases “have a unique interest in seeing the information the government intends to use to seek their death. To do otherwise would be to undermine what we in the U.S. call jurisprudence.” As an example of the effect the proposed protective order would have on the defense, she offered the following hypothetical. If the prosecution wanted to call as a witness a JTF guard from Guantanamo Bay, the proposed order would prohibit her from contacting others who may have had past dealing with this witness and asking about the witnesses background, etc.
Judge Pohl seemed interested in these defense concerns and asked Mr. Ryan if the proposed order made defense counsel’s jobs harder. Mr. Ryan said, no. He argued that the defense could approach whoever they wanted and say “tell me what you saw” without disclosing any of the information in the discovery material. The judge was unsatisfied with this answer and asked if it was true that the prosecution’s order would prevent the defense from going out and interviewing people about a prosecution witness whose name was disclosed in discovery. The prosecution said, “yes.” The court took this motion under advisement.
After lunch, the court addressed AE 0057, one of the seemingly most important motions in which the defense raised the issue of whether or not the U.S. Constitution applies to the defendants in these proceedings. James Cannell argued that under the test established in Boumediene v. Bush, where the court had held that Guantanamo Bay is not extraterritorial but is instead in the jurisdiction of the US, that the U.S. has de facto sovereignty in Guantanamo Bay; that the Constitution applies unless impractical or anomalous. From this he argued that the Constitution is presumed to apply, that the government bears the burden of rebutting this presumption and that the standard should be impractical and anomalous.
The judge did not seem well disposed to this argument and seemed to view the motion as one seeking an advisory opinion, seemed eager to address all issues as they arise, and then through statutory analysis prior to constitutional analysis, and suggested that Boumediene was limited to the suspension clause. Additionally, the court suggested that there is a distinction between “personal” and “systemic” Constitutional rights. This could be his way of laying the groundwork for a finding that the Military Commissions were constitionally established, while at the same time finding that the defendants don’t have personal constitutional rights. We will have to wait and see.
There followed substantial back and forth between Judge Pohl and James Cannell during which the Judge was suggesting that the best approach would be to address the applicability of the Constitution on an motion-by-motion basis and Mr. Cannell advocated for addressing this up-front so everyone would know the framework in which motions would be litigated. Captain Wright, counsel for Khalid Shaikh Mohammed, argued that the Hamdan decision suggests that the Consitution does apply in Guantanamo Bay and James Harrington, counsel for Ramzi bin al Shibh, pointed out that it appeared the court was raising a standing issue.
When the prosecution addressed the motion, the judge asked “does the US Constitution apply?” The prosecution answered, “the Military Commissions are established pursuant to the Constitution.” The judge pressed the point and the prosecution responded “you are looking for generalities, we do not want to speak in generalities.”. The judge continued “does the government have a view on whether the Constitutional protections apply to these defendants.” The prosecution replied “Congress did not intend for every Constitutional protection to apply to these defendants. For example, there is no grand jury for them.”
We broke for lunch, and when we returned Cheryl Bormann advised the court that the night before she had been giving the emails she had been seeking since Monday with regard to the JTF’s handling of the health issues and that after she and the prosecution reviewed them, the government had agreed to remediate the health issues and bring in two experts to confirm that the problems are properly remediated and that no further litigation or witnesses on this subject would be necessary. (Query, what was in those emails to cause the prosecution to change course?) When Mr. Liebowitz for the prosecution was asked to confirm that this was the plan, he began to waffle, causing the Judge to express a strong desire for the government to fix this problem once and for all. David Nevin informed the court that when he went to the ER the night before with his own health problem, he saw five people from the defense team there. General Martins then stepped in and assured the court that they would see to it that it is taken care of. Cheryl Bormann then elaborated on the emails explaining that they made clear that the Chief Defense Counsel had been left out of the loop, that only the Office of Military Commissions and JTF were involved, that the emails expressed a government view that the issue was being created by the defense as a delay tactic, and that there was clearly no concern for defense counsel’s health. Later at the press conference, Ms. Bormann further elaborated that the emails evidenced undue command influence whereby an O-6 dictated to the original O-2 inspector what the results of his post-cleanup report should be. This mundane issue may have given rise to dynamics which, as documented in the emails, could be raised later in the proceedings to illustrate that undue command influence is not an off-the-wall conspiracy theory. We will have to wait and see.
Next up on the docket was AE 0036, a defense motion seeking to declare rule 703 unconstitutional. Rule 703 establishes the procedure by which defense counsel can secure fact and expert witnesses. In both cases, pursuant to rule 703, defense counsel must secure the blessing of either the Convening Authority or the prosecution. James Cannell used the courtroom computer and display screen technology to great effect here when he displayed a two-column chart contrasting the Federal Rules procedure with the Military Commissions procedure. It was a central theme to the defense motion that Congress had intended the Military Commission procedure to track Federal Procedure. Argument on this motion made clear that the judge, having a court-martial background in which the prosecution is apparently very much involved in reviewing and then approving or rejecting defense witnesses, had a hard time appreciating the autonomy that defense counsel enjoy in the federal system. The judge also seemed inclined to view this as a “timing” issue since the defense would have to make the “Government” aware of its witnesses eventually in order to get them transported to Guantanamo Bay. Defense counsel addressed this perception by pointing out that Rule 703 requires the defense to provide information regarding the subject matter of the testimony, not just the name and contact information that would be necessary to arrange for transport, and also by pointing out that coordinating transport with “the government” is quite different than seeking approval from the prosecution. (Note that the defense would be better served implementing a uniform procedure by which General Martins’ team is referred to as “the prosecution”, not “the Government.”
Cheryl Bormann addressed this motion by arguing that the Government should not be given advance notice of the defense team’s work product, namely its thoughts, impressions and strategies. She went to say that she was “appalled and shocked” to have to provide the Government with her rationale and strategy in calling a particular witness and that when she had told her defense counsel friends about this requirement, their response was “do you have to write their cross for them too?” She also noted that it was interesting to see the judge’s “amazement” when Mr. Cannell had said that in the federal system, defense attorneys issue subpoenas on their own, and that she could assure him that such a system works well.
Major Derek Potent, representing Khalid Shaikh Mohammed, argued that a requirement that defense counsel seek and secure the prosecution’s approval for defense witnesses results in self-censorship because there are witnesses that the defense may want to call, but the need to disclose that ahead of time could give pause which is particularly unjust in a capital case. Argument on this motion was scheduled to resume Friday, October 19.