Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Thursday, February 14, 2013 [corrected].
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The final day of this week’s session opened with a brief discussion of the allegations raised by the defense the previous afternoon. Defense counsel represented that several defendants’ legal mail bins had indeed been searched while defendants were in court this week,resulting in the confiscation of multiple pieces of legal mail that had already been reviewed for content,cleared,and stamped as attorney-client privileged material. Defendants were present in court,and each brought a shallow plastic bin presumably containing their legal mail. Bin’Attash refused to sit down for some time and eventually attempted to address the court,saying that he had something important to say to the judge. “You make us come to court…,” he began,a reference to the court’s standing order that defendants appear on the first day of a session,and perhaps an accusation that this requirement gave the guards the opportunity to search the bins without the detainees present. The judge cut him off and advised his counsel that if the accused wished to testify,he would have an opportunity to do so under oath.
After a brief attorney proffer about the facts as known,defense counsel for KSM, bin’Attash,and bin al Shaib urged the judge to take up the mail search issue immediately and postpone the witness originally scheduled for that morning (the convening authority for the military commissions,who was standing by via VTC to testify on other motions). The defense argued that the privilege issue had become a fundamental structural issue that must be resolve before anything else could be effectively addressed. Specifically,they articulated that the repeated and continuing invasion of attorney-client privilege was making counsel’s job of representing them next to impossible. One counsel noted the irony that while the detainees were in court listening to witness after witness testify that their confidences with their attorneys were — and would continue to be — respected,the guard force was at that very moment once again invading those confidences.
Certainly,the witness standing by to testify by VTC — who was the convening authority,a career judge advocate,and former TJAG of the Navy — would have understood better than most that court schedules are fluid and must sometimes be changed to address other pressing matters. The prosecution did not represent that the witness could not be easily rescheduled,and indeed it came as no surprise to anyone when his testimony was nowhere near complete by the end of the allotted time and he was advised that he would be recalled at a later date anyway. Nonetheless,the military judge elected to proceed with a portion of the admiral’s testimony first and to postpone the mail issue until the last few hours of the session.
The defense proceeded with the convening authority’s testimony on motions alleging defective referral (008) and unlawful command influence (031). The witness testified that he was appointed by the Secretary of Defense in March 2010 for a three-year term,and that he serves both as convening authority and as director of the Office of the Convening Authority. He reports directly to the Secretary of Defense. He stated that he had been “disgusted” with President Bush’s first attempt at military commissions,but that he was a proponent of “properly constituted” military commissions modeled after the UCMJ and wherein statements extracted through torture or degrading treatment would be excluded. Sometime after assuming his duties,he became concerned about the pace at which security clearances for commissions participants were being processed,so he appointed a colonel to work directly with OPM and DIA in an attempt to speed things up. The witness further testified that at some point during the relevant time period,his office’s security department was subjected to an investigation with respect to these issues.
The essence of the defective referral motion,at least from the perspective of the al Hawsawi defense (the only party to examine the witness thus far),is that the defense team did not have a meaningful opportunity to submit matters in mitigation before the convening authority referred capital charges. Specifically,al Hawsawi alleges that he did not have a cleared mitigation specialist before the deadline to submit mitigation matters and that he did not have a dedicated translator capable of traveling with the team. The prosecution concedes that al Hawsawi’s mitigation specialist did not receive his security clearance until after the deadline; however,it argues that a mitigation specialist is not an essential component of the defense team,and thus that the government’s failure to allow him to do his job does not render the referral defective.
Counsel and the witness also sparred on the issue of translation resources. The witness disputed counsel’s factual predicate that he was not afforded an interpreter,stating that his office had made eight to ten cleared linguists available to counsel,and that counsel had refused them and instead requested another individual who was ultimately unable to be cleared. (At a press briefing after the hearing,counsel for al Hawsawi stated that the eight to ten translator referenced by the witness comprised a pool of OCA translators generally available to defense teams to translate documents on an as-needed basis,but that they were not able to be assigned to a particular team or to travel with counsel to GTMO to assist in interactions with a client. He state that he would present evidence on this point at a later date in the motion hearing.)
The witness testified that he had granted several extensions — over many months — of the deadline to submit mitigation matters,because he wanted each team to have at least 60 days from the appointment of learned counsel. Once that standard was finally met,he declined to further extend the deadline,notwithstanding the defense’s protestations that the slow pace of his office’s security clearance process had left them without adequate resources to provide a meaningful submission of mitigation matters. He noted that mitigation specialists are not required by law or the rules,and he stated that he did not consider a mitigation specialist to be an essential part of a capital defense team,particular where each team had cleared learned counsel with extensive experience in capital cases. Counsel asked why,if that were so,the witness had granted his request for a mitigation specialist in the first place. The witness repeated that a mitigation specialist was not required.
The witness stated several times that counsel could still submit matters for his consideration. Referral of capital charges has already happened,but the convening authority could dismiss charges if a submission were to change his mind. But now that charges have been referred,it would seem that the standard to deviate from that default and to shut down processes that have been in motion for nearly a year might be considerably higher. (Of course,the mitigation-matters issue is not merely academic. As the Khatani case shows,the possibility of a convening authority declining to refer charges against a 9/11 defendant on the basis of mitigation factors is not a fantastical notion).
The commission turn its attention back to the privileged-communications issue for the last few hours of the session. The day before,the prosecution had proposed asking the Joint Detention Group command to investigate what had happened with the search of the legal mail bins. That informal investigation presumably led to the witness that the defense called,a Navy lieutenant commander and assistant SJA who was assigned to deal with HVD matters. However,it quickly became clear to all parties that this individual was not the right witness,as he had no firsthand knowledge (and limited knowledge from other sources) about the search.
This witness testified that he had been told that in the course of routine security inspections on February 11 and 13 (the first and third days of this court session), members of the guard force had searched the detainees’ legal mail bins and had seized certain items from KSM,bin’Attash,and bin al Shaib. Most or all of the items seized had previously been stamped with a green square stamp similar to that used y the guard force to mark legal mail that had been properly reviewed and cleared. However,some of the green square markings were not as complete as the others,possibly as a result of insufficient ink or insufficient pressure being applied to the stamp. Certain others were lacking initials of the reviewing member of the guard force and/or dates of review. Defense counsel for bin’Attash inquired whether these inconsistencies were something over which the detainees could possibly have had any control,a question that the witness declined to answer based on his lack of knowledge of guard force procedures. He testified that one of the items seized was a photograph of the Grand Mosque in Mecca. Another item,seized from bin al Shaib’s cell,was a piece of toilet paper with English words written on it. He believed that these items,along with all of the legal mail seized,would be returned.
The witness further testified that in addition to the stamp inconsistencies,some of the items were seized because they were disturbing and presented possible security concerns. This material included a metal pen insert found concealed in a book binding in KSM’s cell, as well as multiple books that might be considered information contraband. The titles of which the witness was aware were “Black Banners,” which he understood to be a prohibited title,as well as “Perfect Soldiers” and two volumes of the 9/11 Commission Report. He was not sure how or whether books and other publications were stamped, although he thought it might have something to do with a “guan” number assigned to a particular title (such that any copy with that guan number possessed by any detainee would be permitted). The witness had heard that the 9/11 report books would be returned to the detainees,but he did not know for sure about the others.
When asked who had given him the information about the search over the past 24 hours so that more knowledgable witnesses could be called,the witness testified that it was members of the guard force,but he did not know which ones,nor how they could be identified. Later in the day,the government stated that the command was prepared to initiate a JAGMAN investigation into the issue of that week’s legal bin searches and seizures. The report will be prepared in approximately one week,after which the defense will have more information from which to conduct its own investigation,should it so choose. The judge and defense agreed with this proposal.
When the judge asked for a proposed remedy to the ongoing problem of the seizure of A/C privileged communications,the government argued that the court should implement –at least on an interim basis — the government’s proposed order governing mail communications (AE 018). The government noted that its proposed order was fashioned after the one that this judge had signed in the al Nashiri case,prompting the judge to caution both sides that just because he did something in one military commissions case, no one should assume that it would be done in another. The government’s proposed order had been vigorously opposed by the defense even before this latest issue arose, and here the defense challenged the idea that this order — which they consider to present an even broader threat to A/C confidentiality — could somehow remediate this new violation. Moreover,they argued,the proposed order would do nothing to address the actual problem at hand,because it would only govern the issue of who may conduct the initial searches and would not alter the fact that the government was now seizing A/C mail that had already been effectively reviewed and cleared at least once. Rather,the defense wanted the judge to order that all legal mail that was already stamped and marked not be subject to seizure or re-review,except for security searches for physical contraband. Additionally,the defense argued that making the disputed government version the default would put them at a disadvantage and would essentially put them in the position of moving for reconsideration of the existing baseline. Ultimately,the judge deferred the question,inviting both parties to brief the issue in the coming two weeks before he issues an interim order.
In discussing a remedy,the judge also acknowledged the underlying structural problem that unlike in a typical court-martial,the convening authority here does not own or control the camp commander,the guard force,the intelligence function,or other relevant assets aboard NAS GTMO that may be involved in inspections and searches. Nonetheless, the judge asked the prosecution to convey a “message to the stamping authority” that if he issued an order that mail be stamped a particular way,it had better actually be stamped that way,or else there would be another order that the Joint Detention Group would not like. Precisely what this means,or by what authority he could enforce any such order in this fractured command context,is not clear.
At the very end of the session,in discussing housekeeping and docketing matters for the next session in April,the judge advised that the “emergency motion to abate” potion of AE 133 was denied. He stated that he was open to hearing the merits of 133,including presentation of additional evidence as well as arguments for prospective relief and any remedies for past wrongs,during the April session,but that he would no longer consider it to be prioritized over all other matters.
The parties further discussed the fact that the defense counsel still had not signed the outstanding memorandum of understanding (MOU) regarding treatment of certain classified material,such that the prosecution may not produce classified discovery to the defense. The defense counsel have thus far refused to sign the MOU on the theory that because it prevents them from sharing evidence with their clients,it may require them to violate their ethical obligations. The judge stated that if defense continued to resist signing the MOU,thereby effectively opting out of classified discovery,he might have an independent duty to consider whether counsel could consider to competently represent their clients in this case.
The import of the A/C privilege issue was evident at a press briefing conducted after the week’s session had concluded. The frustration of defense counsel was palpable,with four of the five lead counsel speaking at some length about the tremendous strain that they feel these developments have placed on their ability to effectively represent their clients. Counsel for bin al Shaib stated,”every time this happens,it makes it more and more difficult for us to tell our clients that there is any legitimacy to these proceedings.” Counsel for bin’Attash agreed,stating that,”I cannot explain how detrimental it is to tell my client that everything he says to me goes no further than me,because that’s how the rule of law works in America,and then to turn around again and again to see that this just isn’t true. It erodes his trust in me. And if my client can’t trust me,then why should he bother having a lawyer?” Counsel for KSM stated that during 3.5 years of torture,the government instilled in his client ‘learned helplessness” — the concept that he has no ability to control anything in his life. Counsel observed that within that framework,even the appearance that the government was invading the last sanctity of his relationship with his attorney makes it virtually impossible for the client to have any trust in the process,or in his lawyer,who is then put in the tenuous position of vouching for the government and the commissions system. He further tied these difficulties to the commissions system as a whole,noting that the federal courts system has — over the course of more than two hundred years — painstakingly build a framework of precedents and doctrines and principles pursuant to which any conceivable obstacle may be addressed,while the commissions system is devoid of any such structure and must thus make it up as it goes along. Finally,counsel for al Hawsawi opined that the judge had placed an impossible burden on the defense. He stated that even in the face of compelling evidence on multiple fronts (review and re-review of legal mail for content by persons not properly walled off from the prosecution,courtroom sidebar conversations between clients and attorneys potentially broadcast to the original classification authority,concealed listening devices in attorney-client meeting rooms) suggesting that the government was indeed monitoring privileged defense communications,the judge had placed on the defense the onus to find “fingerprints of the invisible hand” of the most sophisticated clandestine agencies on earth. He further noted that if those intelligence agencies wanted to hide their surveillance of these high-value detainees,they could certainly do so without being detected by a bunch of lawyers with no counterintelligence training or resources. Thus,in his view,charging the defense with finding some higher level of proof presented an obstacle that was likely insurmountable.
The chief prosecutor spoke to the press after the defense. His remarks also dwelled largely on the privilege issue,and he appeared to take the defensive (perhaps anticipating the skeptical questions that followed his remarks). He repeatedly stated that the court had diligently and appropriately postponed other matters this week while listening to five witnesses and substantial argument on this topic. He noted that it was an important issue and in no way a distraction,but that nothing had come of it and it was time to move on to other things. When asked if he was absolutely certain that no government monitoring of confidential communications had occurred,and if it could happen without his awareness, he repeated that he did not believe that any government monitoring had happened,but he acknowledged that anything is possible.
The next hearing in the case is scheduled for April 22-26, 2013.