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 Friday October 19, 2012, none of the defendants attended the hearings.  Through testimony, the prosecution established that the defendants had all waived their right to attend the hearings. Highlighting the oddity of an unnamed witness, rather than asking the Commander to state her name, Mr. Swan, for the prosecution, asked “are you the same Commander who testified Tuesday, Wednesday and Thursday.”

The hearing really picked up steam on this last day. It seemed that more motions were addressed this last day than had been addressed all prior days this week. Hence this rare lengthy summary. Except as specifically indicated below, the Judge took the motions under advisement for future decision.

The first motion of the day was AE 0054, which was a defense request seeking additional information regarding the procedures for handling classified information. The defense counsel had asked the prosecution for this guidance, primarily in two forms. First, it was asking for guidance on how to handle several categories of information on a list created by the defense. Second, it was asking for a Classification Guide that the defense believes exists. Rather than voluntarily provide the requested guidance and Guide, the prosecution required the defense to brief the materiality of the information sought.

In opposing the defense motion seeking more information about the classification process, the prosecutor, Ms. Baltes, argued that the defense does not need to know why the disclosure of a document would be harmful to national security. It just needs to know that it has been classified because “if the government makes something classified, it is classified and that is the end of the story.” It does not seem this argument contemplates the balancing test that the parties and the Commission would engage in when determining whether to close the courtroom for the discussion of certain classified information. If you don’t know why something is classified, how can you weigh (a) the harm that would arise from its disclosure against (b) the rights that would be compromised by denying the public access to the proceedings?

Ms. Baltes also told the court that the Classificaiton Guide, Met-506 has nothing to do with the rendition, detention and interrogation program and is beyond the defense counsel’s need to know. The Judge pointed out that it had not seen Met-506 and asked “why should I believe you.” Ms. Baltes seemed truly perplexed by this question and said “because these are decisions the government makes every day.” The Judge’s solution was to instruct the prosecution to give him a copy of Met-506 for in camera, ex parte, review. Mr. Connell, counsel for Mr. Al Baluchi, also said that the NSA had created a guide governing the use of classified information at the Military Commission proceedings. The Judge asked Ms. Baltes if this was true and she said she did not know, but would find out. In an effort to paint the prosecution as uncooperative when it comes to providing information, Cheryl Bormann pointed out that even the abbreviated guidance document that the Court had referred to the previous day, and that the defense had attached as an exhibit to its papers, was dated September 23, 2011, but had not been given to the defense until March 2012.

Continuing with the defense request for guidance in handling classified information, Mr. Connell argued that there is information that is designated classified, but is accessible to him through open source generally, and the 9/11 Commission Report in particular, and that the goverment will not give him guidance on how to handle such information. He also argued that the punishment for treating unclassified information as classified is the same as the punshiment for treating classified information as unclassified and that the government’s alleged dismissive attitude toward defense counsel’s many requests for guidance has a chilling effect on the defense.

The Judge asked how the government could possibly provide guidance prospectively, and proposed that it would be best for the defense to check to be sure it is handling information properly as questions arise in the case. Mr. Connell said that he had no way to check and nobody to check with and that if he did, he would not have had been forced to bring this motion. In responding to the prosecution’s argument and the judge’s suggestion that no set of rules or guidelines could address all issues and circumstances prospectively, Mr. Cannell said “there is a difference between not being able to address everything, and not being able to address anything” and argued that the government should provide whatever guidance it could.

The Judge next turned his attention back to AE 0036, which was the defense motion involving the manner in which the defense attorneys can call witnesses and the government’s role in the process. It was now the prosecution’s turn to oppose that motion. The prosecution’s argument in opposition started with a list of names including President Bush, President Obama, Vice President Biden and Lindsey Graham. The prosecution then noted that if the defense had its way, these individuals would be in Guantanamo Bay waiting in a trailer to testify. (It turned out that these individuals had been on the defense counsel’s list of requested witnesses in connection with its unlawful command influence motion, but through stipulation, their testimony became unnecessary.)

The prosecution went on to argue that Rule 703 satisfies the requirements of the Military Commissions Act and that there was no need for the Judge to reach the 5th and 6th Amendment issues. Articulating a theme that Judge Pohl at times seemed to embrace, the prosecution stated “for over fifty years, our soldiers and sailors have been prosecuted under these same discovery and witness rules.” The prosecution also restated the proposition that when it comes to the defense calling witnesses, the only difference between Rule 702 and the Federal Rules is a difference of timing. Under Rule 702 the defense is required to share its information with the prosecution earlier.

With regard to expert witnesses, when the prosecution attempted to characterize the process for the defense as relatively easy and straightforward, the Judge challenged this proposition, causing the prosecutor to concede that 703 did not actually read the way he was describing it and that he was “reading into Rule 703 the legislative admonition that Rule 703 be compatible with the Federal Rules.” The Judge seized on this to ask “so you are saying that 703, on it’s face, is inconsistent with the statute.” The prosecution said, “no” but the Judge’s point seems to have been made.

There was next a discussion of what information the defense would have to provide the Convening Authority or Prosecution and what the defense would have to establish in order for the prosecution to subpoena their witness for them. There was a discussion of the defense providing a synopsis of the proposed witnesses’ testimony, but it was never really clear how detailed it needed to be. What was clear, though, was that it is the prosecution’s position that the defense must provide enough information about a proposed fact witness to “convince” the prosecution that the proposed witness is relevant, material and necessary.

The Judge next asked whether it was the prosecution’s position that the Commission procedure for subpoenaing defense witnesses will be different than the procedure in courts- martial, and closer to the procedure set forth in the Federal Rules. The prosecution replied, “yes for expert witnesses, no for fact witnesses.”

When Cheryl Bormann addressed the issue, she reminded the Judge that the prosecution had suggested that the prosecution and defense were on equal footing since the prosecution would be required to provide a synopsis of its expert testimony if it was seeking funding for that witness. But, she pointed out, the prosecution has its own funding source in the DOD, so it would never be in the position of having to provide a witness synopsis in support of a request for funding. Mr. Bormann argued that the prosecution’s proposed standard of relevant, material and necessary was improper, and that the proper test, under the Rules of Courts-Martial is “would an attorney with a client who could afford it be expected to call such expert witness.” For his part, defense counsel Jim Harrington simply pointed out that the prosecution should not be the gatekeeper of relevance.

Mr. Trivett for the prosecution argued that as a steward of the government’s funds, the prosecution had an obligation to save money when possible and that the process by which the defense is required to preview its witnesses’ testimony for the prosecution could save time and money since it is possible that once the expected testimony is made known to the prosecution, the parties could stipulate and save the time and the cost of calling the witness. On one hand, the idea of the parties stipulating to facts in such an aggressively litigated case seems far-fetched. On the other hand, in keeping with the apparent theme of limitating testimony that could lead to embarrassment surrounding the black sites and the RDI program or the disclosure of sensitive information, the prosecution may offer to stipulate to some core facts to avoid the risk of witness testimony leading to the discussion of somewhat more peripheral but nonetheless sensitive facts.

Next on the docket were AE 0032 and AE 0018, both of which involved whether and to what extent written communications between the defendants and their counsel would be subject to review by the Guantanamo Bay military personnel. Prosecution and defense counsel and the Judge engaged in a discussion of how best to proceed given that (a) some of the documents supporting the motion may or may not be classified and, therefore, a 505h closed session would be necessary, and (b) the testimony of a witness, Captain Welsh, would likely have to be taken in part now, and the rest in December when the hearings resume. Ultimately, the Judge decided not to split that testimony but instead scheduled these motions for December. He also noted that the closed 505 sessions could occur in Washington D.C. since there was no need to conduct them in Guantanamo Bay.

AE 0010 was the next motion up. This was a defense motion seeking to have the closed, Rule 802, hearings transcribed. James Connell began by recounting the following. During the arraignment in the al Nashiri case in which Mr. Connell also serves as defense counsel, he had asked that his client be unshackled in the courtroom. There followed an off-the-record conversation among the Judge and counsel for the parties during which they discussed not only the classification issue (the proper and intended subject of the closed 802 hearing) but also the shackling issue (an issue Mr. Connell claimed should have been addressed in open court). After the closed hearing, the open session resumed with the shackles removed and the public to wonder why. He further argued that there are too many parties and too many interests to keep track of without a transcript. Next, Mr. Connell pointed out that the Nuremberg trials were videotaped allowing later generations to watch them and judge their fairness. He argued that rather than being a waste of money, transcribing the 802 hearings would be more efficient since there would be less room for dispute abut what transpires. He pointed out that the Judge had already ordered the transcription of the three 802 hearings that occurred so far in this case. Finally, in what may have been a thinly-veiled threat of boycott, he noted that 802 does allow off-the-record hearings, but does not require the parties to participate.

The prosecution opposed the motion, arguing that there is no right to transcription, that it was not required or necessary and that it would undermine the intended and worthwhile informal nature of an 802 hearing. The Judge refused to find that there was a right to transcription, or to hold that he would have every 802 conference transcribed, but he did acknowledge that discussions of scheduling can sometimes slide into more substantive discussions and that, as a matter of practice, he would have them transcribed but not made publicly available absent a successful motion on a case-by-case basis.

The next motion was AE 0022 and was argued by Jim Harrington and Major Hennessy for the defendants. As of now, there are 8 sites with closed circuit access, but Fort Meade is the only place in the Continental US where the general public can watch the proceedings, while first-responders and victims and victims families are able to view the proceedings in additional locations. Mr. Harrington argued that wherever the proceedings are shown via closed circuit TV, the public should be permitted to attend. Having a stake in this issue in particular, I would like to see this motion granted so I can follow future proceedings from Fort Greene. Major Hennessy had the unenviable task of trying to persuade the Judge that the proceedings should be broadcast for all to see on television. The prosecution argued that this issue was already addressed in the Masawi case and that the rule 806 allows closed circuit but prohibits broader TV transmission. AE 0033 is the prosecution’s motion on this same subject and was therefore addressed during the AE 0022 discussion.

AE 0060 was the next motion to be heard. This was a defense motion seeking the disclosure of (a) whether Judge Pohl lost money in the stock market as a result of the September 11 attacks and if so, the extent of those losses; and (b) the names of all judges on the Military Commission staff who were available to be detailed to this case after referral. Defense argued that such information may be needed for a motion addressing judicial bias. The prosecution argued that the Judge had already made financial disclosures during voir dire and that the requests made in this motion are unwarranted.

The next motion, AE 0047, was a discovery motion seeking information regarding alleged unlawful influence exercised by Presidents Bush and Obama, Vice President Biden, the White House Chief of Staff, the Attorney General, the Secretary of the Army, the Secretary of State and others. The defense had already made an unlawful influence motion (AE 0031) and a motion seeking the testimony of the above-referenced Executive Branch individuals, but this was a motion seeking the disclosure of the “referral binder” and the documents surrounding the selection of General Martins as the lead prosecutor and other documents potentially evidencing influence on the Convening Authority. The Judge asked if the defense had attempted to discuss these documents with the Convening Authority and the defense answered “no”. The Judge seemed troubled by this and noted that is was not at all unusual for the Convening Attorney to talk with counsel. Later, when Captain Ruiz was arguing for the defense, he explained that he had contacted Captain Murphy of the Convening Authority to ask if he would talk to the defense. Captain Murphy set conditions, defense made a motion, and the prosecution, in response, offered to facilitate the discussion between Captains Murphy and Ruiz. What resulted was a 35-minute meeting in which Captain Murphy invoked the work-product and deliberative-process privileges 25 to 30 times often in response to questions like “who was at the meeting”.

Major McGovern argued this motion for the prosecution. He stated that the prosecution was being responsive and responsible, would be providing the referral binder but needed the defense to help by being more focused in its requests. When Major McGovern argued that the defense was entitled to only that which is relevant and necessary, the Judge pointed out that Major McGovern was citing the standard for evidence admitted at trial, not the discovery standard. Major McGovern stated that the discovery requests were not relevant. The Judge asked if it was the requests that were not relevant or the underlying documents and followed up by asking if the prosecution had reviewed the underlying documents for relevance. Major McGovern answered that the prosecution had not. Later, Captain Ruiz pointed out that Major McGovern had never answered the Judge’s question, “if you came across an email that evidenced undue influence, would you produce it?” To this, the Judge responded “if you don’t look, you are not going to come across it.” Apparently the Judge was troubled that the prosecution had not reviewed the underlying documents requested by the defense to determine whether they contained relevant information, and this was how he expressed that displeasure.

Through the next motion, AE 0071, the defense sought discovery regarding agents Fitzgerald and McCain regarding Mr. Al Hawsawi’s ability to speak English as observed during their interrogation of him. The prosecution argued that the CV’s the defense sought do not exist and that the personnel files are irrelevant. The defense argued that the files were relevant to the extent they reflect any particular language skill or lack thereof. Captain Ruiz urged the Judge to consider the fact that as part of the defective referral motion, the defense had raised the fact that from March 2011 to June 2012, counsel was required to communicate with Mr. al Hawsawi without a translator, making the issue of his ability to speak English highly relevant, that in opposition to the defective referral motion, the prosecution had submitted an affidavit from Agent Fitzgerald regarding his interrogations of Mr. Al Hawsawi, and that since Agent McCain was present at those interrogations, his testimony and background were relevant too.

The Judge asked the prosecution whether it believed it had an obligation to look for credibility evidence and share it with the defense. Major McGovern stated that for Agent Fitzgerald, the prosecution had asked the FBI to review his file for credibility information and that it considered Agent McCain to be a a defense witness and, therefore, did not believe the prosecution had any obligation to look for or disclose impeachment material.

AE 0064, the next motion heard, also related to the ability of the defendants to communicate in English. Through this motion, the defense seeks approval and funding for their own language ability expert. The Convening Authority denied the request, and the defense briefed the request and the issues surrounding it for the prosecution. In response to this renewed request and briefing, Admiral McDonald of the Convening Authority agreed to provide a different language ability expert who would work with the defense and the defendants on a non-confidential basis. The defense agreed to accept the substitute expert offered by the government, but would not agree that the comminications with such expert would be non-confidential. The prosecution, for its part, said it would agree to confidentiality, but cautioned that it could not speak for Admiral McDonald and the Convening Authority. The Judge solved this by ordering that the comminications among the expert, the defendants and the defense counsel would be confidential.

The day ended with Judge Pohl indicating that the hearings would continue on either December 3 or January 28, that there would be additional proceedings for a week in February and a week in April and then one week every other month thereafter.

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