Report below from Monday’s (Aug. 19) Military Commissions Hearing . NIMJ’s volunteer observer for this hearing was Daniel “Sparky” Abraham, a 3L at Yale Law School who is interning this summer at NIMJ. Kudos to Daniel for taking time from his summer to go to Gitmo.
All defendants were present as required in the first hearing day of each week. The first issue addressed was Defendant Mr. al Hawsawi’s presence. Commander Ruiz pointed out Mr. al Hawsawi’s neck brace and stated that he is experiencing pain from a neck condition. The pain is exacerbated when he must sit for long periods of time. CDR Ruiz requested that Mr. al Hawsawi be allowed to voluntarily waive his right to be present for the remainder of the day. CDR Ruiz also noted that JTF had denied his requests to meet with Mr. al Hawsawi’s doctor, and the prosecution had not responded to his request for medical records, and so he had no documentation of Mr. al Hawsawi’s condition or medication. CDR Ruiz asked that Mr. al Hawsawi be allowed to return to camp immediately.
Mr. Swann spoke for the prosecution. He said that he received a request for Mr. al Hawsawi’s medical records for the previous year. Those records are undergoing classification review and would be released to CDR Ruiz when available. He also said that he will make Mr. al Hawsawi’s doctor available to CDR Ruiz and the court today so long as the doctor’s identity is not disclosed. He agreed to the judge having a colloquy with Mr. al Hawsawi to determine if he wished to voluntarily waive his right to be present, and if so, to the judge excusing him for the day.
Mr. Ruiz largely agreed to these conditions but requested that a defense translator be present for the colloquy. While the court waited for the translator to arrive, the judge asked whether there would be any logistical problems returning Mr. al Hawsawi to the camp. Mr. Swann said it would be easiest logistically to transfer him to the holding area immediately, then move him back to camp at lunch. CDR Ruiz conferred with Mr. al Hawsawi, then stated that he is more comfortable in the courtroom than in the holding area, and so would prefer to remain in court until lunch. All parties agreed. When the translator arrived, the judge had a colloquy with Mr. al Hawsawi and confirmed that he wished to voluntarily waive his right to be present.
The next matter was a defense examination of FBI Special Agent James M. Fitzgerald in relation to his testimony in AE008C Prosecution Exhibit J, in which Agent Fitzgerald testified as to Mr. al-Hawsawi’s proficiency in English. After General Martins swore in Agent Fitzgerald, CDR Ruiz cross-examined him on his credentials to determine someone’s proficiency in English generally, and Mr. al-Hawsawi’s in particular (he had none except practical interrogation experience).
In the course of CDR Ruiz’s cross, the topic of Agent Fitzgerald’s interrogation notes arose because they are the only documentation of what complicated legal concepts may have been discussed in English. CDR Ruiz took this opportunity to hold up some present some pieces of paper to Agent Fitzgerald and ask him to verify whether they were his notes. The pieces of paper were completely blacked out. CDR Ruiz stated that he had received 80 pages of Agent Fitzgerald’s notes, all but two and a half pages of which were blacked out. It got a chuckle in the gallery but Judge Pohl was not amused.
The judge said that discovery complaints were not at issue here, as he was only hearing testimony on Agent Fitzgerald’s ability to assess Mr. al-Hawsawi’s language skills. The judge also noted that CDR Ruiz could obtain the statements of the accused by signing the Memorandum of Understanding on classified information and thereby agreeing to abide by the judge’s protective order issued in January.
Mr. Swann noted that the two and a half unredacted pages provided were the portions of the notes that bear on the issue at hand—language proficiency.
CDR Ruiz continued to question Agent Fitzgerald. After establishing Agent Fitzgerald’s proficiency determining qualifications (or lack thereof), CDR Ruiz asked about what was said during the interrogation. Agent Fitzgerald testified that he and the other interrogators spent approximately 10-15 minutes speaking with Mr. al-Hawsawi about his ability to converse in English prior to beginning the interrogation. Agent Fitzgerald also testified that he gave Mr. al-Hawsawi some legal admonishments, including that the had the right to end the interrogation at any time, and that he was in the exclusive custody of the Department of Defense. However, he did not tell Mr. al-Hawsawi that he had a right to an attorney, did not lay out what he was suspected of with specificity, and did not mirandize him.
Trial counsel’s questioning of Agent Fitzgerald focused on his long experience in law enforcement, his many interrogations of suspects with varying levels of English proficiency, and his past demonstrated ability to determine when suspects could sufficiently understand him. Agent Fitzgerald also testified that he asked open-ended questions, and that Mr. Hawsawi’s responses led him to conclude that Mr. al-Hawsawi understood the questions. Agent Fitzgerald also testified that he provided Mr. al-Hawsawi with a number of documents to inspect that were all in English.
Next the court turned to what matters it would consider going forward. The court stated that it would attempt to stick to the prosecution’s proposed schedule, but that it was not written in stone. Mr. Nevin, counsel for KSM, stated his desire to resolve AE018, about legal mail, then move to AE155M, about email, before addressing any other motions. His preference was based on defense counsels’ inability to adequately prepare their arguments on the other pending motions without being able to communicate with their clients by mail or each other by email.
General Martins responded that the prosecution does not want to push AE155M to the front because there are so many pending motions that were filed and briefed earlier. He said that since the motions were fully briefed and had been pending for some time, there would be no prejudice to defense on these motions from any difficulty in preparing arguments.
Judge Pohl said that he would not decide the order of motions immediately, but that there was something to be said for the older motions having been fully briefed already.
Mr. Nevin stated that to the contrary, the communication issues affect defense attorneys’ readiness to do any work on any motions, including those that are fully briefed. Mr. Nevin also pointed out that the discovery issues litigated are mostly meaningless until the IT issues (and attendant motions) are resolved, because defense attorneys aren’t able to use the discovery that the prosecution provides.
Ms. Bormann, counsel for Mr. bin Attash, agreed. She noted that the defense has not even been receiving judicial orders, and that the IT problems run through all of OMC. She said that Mr. Nevin understates the problem when he says its resolution is crucial.
Mr. Nevin added that AE018, about mail, is also critical because it is the only way that the attorneys can communicate with their clients when they are not on the island.
Mr. Connell, counsel for Mr. al-Baluchi, noted that he had not been able to file a motion by email and so requested to file it by hand. The judge paused in apparent frustration before allowing Mr. Connell to file the motion.
General Martins argued that the sophistication of very recent defense motions about the IT problems belied their ability to effectively prepare. General Martins did not want to halt proceedings due to an “email glitch.” He requested that the court stick to the prosecution’s proposed schedule to be sure to address the important long-pending motions.
The court recessed for 15 minutes, and returned to hear testimony from Agent McClain of DoD CITF on the same issue that Agent Fitzgerald testified on. Agent McClain was also present for three of the four days Mr. al-Hawsawi was interrogated. He was similarly (un)qualified to judge language proficiency. He had interrogated at least 12 Arabic speakers before and had used a translator for all. Agent McClain testified, though, that he believed from Mr. al-Hawsawi’s answers to questions and conversation that he understood clearly everything that was being said. Agent McClain believed the interrogation might have been video taped, but was unsure. (Agent Fitzgerald testified that the interrogation was not taped.) Agent McClain testified that he did not recall anyone giving Mr. al-Hawsawi an opportunity to make a written statement.
After Agent McClain’s testimony, the court turned to the MOU issue. Judge Pohl pointed out that attorneys Connell and Thomas (counsel for Mr. al-Baluchi) signed the MOU, but no other defense attorneys had signed. As a result, Mr. al-Baluchi’s team had resulted some classified discovery, but not much (discussed later). The judge suggested that all defense counsel have an obligation to sign, and that failure to sign without a legal reason is obstructing the prosecution from providing discovery. The issue has nothing to do with what the prosecution has provided, so the counsel should not argue about discovery problems.
Judge Pohl also brought up CDR Ruiz’s recent challenge to the protective order and MOU based on the Convention Against Torture. The judge was obviously displeased with CDR Ruiz’s filing the motion nearly seven months after the protective order was issued. CDR Ruiz emphasized that he was not delaying things, but had been genuinely occupied with the other legal, practical, and ethical problems the defense counsel face. CDR Ruiz explained that the protective order and MOU present delicate and complicated ethical concerns for him and that he was not able to draft a sufficient motion explaining those concerns before last week.
Judge Pohl stated that the MOU only tracks the protective order and so does not classify anything unclassified. Therefore it does not change any duties of defense counsel. Mr. Ruiz stated that Mr. al-Hawsawi has independent rights under CAT, and so the MOU affects what advice CDR Ruiz can give him on those rights. Judge Pohl pointed out that Mr. al-Hawsawi hasn’t litigated those CAT rights. CDR Ruiz countered that he can’t due to his inability to communicate outside the island. Judge Pohl asked, then, if Mr. al-Hawsawi can’t litigate his CAT rights, what does the MOU change? Judge Pohl reiterated that the protective order had been issued twice, and that he cannot keep reconsidering it while defense counsel ignores it. He asked CDR Ruiz if CAT was the only impediment. CDR Ruiz wouldn’t say that it is the only impediment, but did state that it was the major impediment.
Mr. Nevin addressed the MOU next. Mr. Nevin argued that signing the MOU constitutes a promise to adhere to the protective order. But in a capital case, according to Langford v. Idaho, a defendant in a capital case is entitled to know every outcome-determinative rule before making decisions affecting their rights. This ruling requires the question of whether classified information can be provided to defendants to be resolved before defense counsel can bind himself or herself with the MOU.
The judge responded by again pointing out that he had ruled on the protective order twice, and asking when the reconsideration ends. Attorney Nevins stated that the reconsideration ends when there is no more doubt about the rules. The judge asked who determines that, and Mr. Nevins responded that all parties do collectively. The judge pointed out that he is the ultimate decision maker.
Mr. Nevins drew a distinction between the protective order being final and him signing the MOU. He argued that signing the MOU has additional consequences for his client. Signing the MOU means that he is agreeing as his client’s representative that the prosecution can withhold evidence from his client by providing it only to him, even when the government intends to kill his client based on that evidence. Mr. Nevins will not make that deal and the protective order doesn’t require him to do so. The protective order only says that if he doesn’t sign, he won’t be entitled to receive classified discovery. For all of these reasons, Mr. Nevin must know the resolution for other motions, including AE013GG (motion to amend protective order). So Mr. Nevins needs resolution of the CAT issue and AE013GG before he can decide whether to sign.
Ms. Bormann echoed these concerns. She also stated that the MOU was superfluous as to the protective order, and the protective order has additional legal problems. Principal among these is that the OCA has been stating that its classification policy conflicts with the protective order and that defense counsel must follow OCA guidance and ignore the protective order where they conflict. The OCA was also unaware that the presumptive classification issue had been resolved, and so had recently read-on Ms. Bormann and included the provision that she may not disclose anything her client says, including what kind of sandwich he wants for lunch.
The prosecution stated that it was unaware of these conflicts. The prosecution stated that the protective order should guard defense counsel from criminal liability for violating OCA guidelines, and that defense should come to the prosecution with these problems sooner.
Mr. Harrington, counsel for bin al-Shibh, stated that defense counsel vouches for the system by representing their clients in it. He emphasized his difficulty explaining to his client that he can be trusted with secret evidence, especially with so many other systemic problems eroding that trust (e.g., email). He also needs AE013 and the CAT issue resolved before making a decision about the MOU.
Mr. Connell stated that he signed the MOU, but has so far only received 411 words of classified discovery, and those 411 words weren’t material to the case. The judge drew a distinction between summarized and unsummarized classified discovery, and pointed out that much summarized discovery is still awaiting his review. Ms. Baltes for the prosecution weighed in that the vast majority of the classified discovery is summarized, and so awaiting review by the judge.
Ms. Baltes also stated that the defense attorneys have an obligation to sign the MOU, and that there should be consequences for not signing. Also, pending changes to the protective order don’t bear on the MOU, because the MOU incorporates the protective order changes at the time they are made.
The court took recess for lunch as Mr. bin Attash was feeling ill.
(On our return, defendants entered the court room and began doing prayer. The observers watched from the gallery for a few minutes, but then an internal guard force supervisor came in and yelled at some soldiers apparently for failing to make the observers leave until prayers are over. We were escorted out.)
The remainder of the day after lunch concerned Mr. bin Attash’s health, and what constitutes voluntariness for waiving rights to attend the proceedings. I will write about this tomorrow, as it’s late now and the problem is likely to be discussed further in the morning.
Due to Mr. bin Attash’s inability to attend, the court recessed for the day. However, the judge stated his intention to have a closed 502 session on AE052 after the recess. Mr. Connell asked to make an argument about the closed session. The judge told him he could not do that in open court, but Mr. Connell insisted that he had worked out an argument that did not present any classified information.
Mr. Connell argued that in re Terrorist Bombing established that the need for closed hearings must be decided on a case-by-case basis, and should be governed by a four factor test. Here, the factors weigh against a closed session. First, having the information presented in open court would not jeopardize any lives. Second, the government would retain its ability to control the transfer of information. Third, attorney participation would be the same either way. Fourth, defendant input in this case could be very valuable, and so leans in favor of an open session.
Mr. Connell made a three-part layered request. First, he asked for an open session on AE052. If not that, he asked that other interested parties, such as the press and NGOs, be given an opportunity to be heard on the closure. If not that, then the prosecution should articulate what damage it will suffer and which information is classified, so that the session can be bifurcated into both open and closed portions.
Ms. Baltes responded that there is no authority to force the government to articulate which information is classified or why, and that it had already done so anyway in AE136.
Judge Pohl summarily denied all defense requests and adjourned open court for the day at around 3:45pm.