Report below from Tuesday’s (Aug. 20, 2013) 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.  As I said in the post for Monday’s hearing, here, BZ to Daniel for taking time from his summer to go to Gitmo.

9:02 am: 

Mr. bin al-Shibh is the only defendant present.

First the commission addressed the absent defendants. CDR Massucco testified that he had the read the standard form and obtained signatures from KSM, al-Baluchi, and al-Hawsawi. Per the discussion yesterday, Mr. bin Attash was read the form, and then was asked whether his reason for not coming to court was medical. He said, in English, “I want to sign the form. I already signed the form.” The government took that as a knowing and voluntary waiver and the defense did not contest it.

The first issue argued was from AE013DD, which concerns a proposed amendment to Protective Order One that would strike language requiring defense teams to turn over signed MOUs to the prosecution where the defense team members who signed are non-public members of the team. Mr. Connell argued that giving these MOUs to the prosecution gave them an unjustified and unbalanced window into the composition of his team. The prosecution’s concern was that they need to be sure that whoever they give classified information at the defense offices is qualified to receive that information. Mr. Connell countered that he and his team had been receiving classified information for some time without any verification that they had signed MOUs, including before the MOUs existed. Judge Pohl suggested a possible solution whereby defense teams can turn over MOUs signed by public members, and give the prosecution a list of individuals qualified to receive classified information. That way there is no window into the defense structure and the prosecution doesn’t have to worry about making unauthorized disclosures. Both sides seemed agreeable, though the prosecution maintained that any amendment to the protective order is unnecessary.

The next issue was AE013FF, which concerns how defense teams must handle potentially classified information obtained from public or “open-source” sources. The main problem arises from the fact that Protective Order One requires defense attorneys to handle as classified any information about the RDI program. This and other motions on similar issues were discussed primarily in terms of two hypotheticals:

1. The defense team reads something in the New York Times about the RDI program.

2. The defense interviews a non government-involved witness about his or her personal perceptions w/r/t the RDI program.

Mr. Connell stated that the prosecution and defense essentially had the same view—that open-source information is not classified and should not be treated as classified until a cleared individual discusses or comments or vouches for its truth. However, the OSS takes a contrary view. For example, the OSS has interpreted the protective order to require that that hypothetical 2 take place. Mr. Connell suggested solving this problem by adding language to the protective order to the effect that it does not interfere with counsel’s right to interview non-cleared individuals so long as counsel does not disclose classified information.

Ms. Baltes argued for the government that the amendment would be unnecessary, and that the prosecution doesn’t intend to interfere with any such interview. If the information is coming from an open source, like this sort of interview, then the protective order already contains provisions setting out the proper procedure. The defense is supposed to seek and follow guidance from the OSS. And despite some possibly conflicting interpretations, the prosecution is working diligently with OSS and the OCA to make protective order interpretations consistent.

Mr. Nevin pointed out that the protective order definition for what information to treat as classified appears to also cover information that has been officially declassified, such as the number of times KSM was waterboarded in March 2003. Another problem that arises is defense counsel’s ability to ask follow-up questions, where those questions would indicate their interest in a topic and so might imply its importance or truth. Under the protective order and OSS/OCA guidance, a simple follow-up question might be an unauthorized disclosure. Defense counsel should also be able to discuss interviews with their investigators over unsecure lines so long as they’re not confirming or commenting on the content—just like they should be allowed to discuss an NYT article on the street corner so long as they don’t confirm its content.

Ms. Bormann asked similar questions, and also asked what should be done when the commission and the OSS give her conflicting guidance on proper procedures w/r/t classification of information. She stated that the language in Mr. Connell’s proposed order would at least solve questions w/r/t interviewing witnesses in non-secure locations.

Mr. Harrington brought up a situation in which he might receive classified information that was unlawfully distributed (think Snowden). OSS/OCA guidance requires him to bring that to a secure location immediately. He called it the height of silliness to treat information this way when everyone knows it. He offered this observation only as that and did not have a proposed solution.

CDR Ruiz pointed out that the CAT motion outlines a litany of difficulties faced by the defense teams w/r/t classification. He pointed out that the competing concerns at issue are possible national security implications and a full and fair capital trial. He said that in order to better vindicate the former, either the court or the prosecution could simply take death off the table. That might solve a number of problems. Alternatively, the government could simply declassify the info that is already in the public sphere and that is causing the defense the most problems.

Ms. Baltes agreed for the prosecution that protective order does not require declassified info to be treated as classified. She also agreed that defense can interview open-source witnesses about, e.g., RDI information, and then communicate the results of those interviews through unsecured means. However, she did state that follow-up questions in those interviews would be limited. For example, she said, defense counsel could ask “did you see anything else,” but not whether they saw a specific thing.

The next issue was AE013GG, which concerned whether the protective order should be amended to include a paragraph protecting ICRC material from disclosure outside authorized individuals. Mr. Connell’s position is that defendants and defense counsel are authorized individuals under the governing rule, and so adding this language would assuage government concerns and also preserve their acces to the information.

General Martins spoke in opposition to the motion. He said that they had been consulting with the ICRC since June on whether they could access the information and whether ICRC would waive its privilege in any circumstances. He sought a court order authorizing him to send a search request to the ICRC document custodians to establish if there is any information that is potentially discoverable. He would then bring that information to the commission in a MCRE 506 hearing. Thus the court could avoid ruling on the privilege issue, provide discovery where necessary, and protect the information.

CDR Ruiz did not join AE013GG because it adopts the government’s classification scheme. He also noted that this is the first time he’s heard argument on any use of MCRE 506, and wanted to ensure that the prosecution met its burden on invoking public interest and that the defense would have a chance to contest that invocation.

Next was AE013HH. This involved a fairly complex issue about OSS procedure for handling defense requests for classification review. The defense sought an amendment to the protective order that would ensure attorney-client privilege is protected at every stage. The primary concerns were partitioning the portions of the OCAs that receive attorney-client privileged defense documents for review, ensuring that OCA personnel are prohibited from disclosing privileged information, and ensuring that defense does not waive its privilege by allowing OSS to forward privileged information to the OCA. Mr. Connell argued for language in the protective order mandating compartmentalization, requiring OCA employees handling privileged information to sign non-disclosure agreements, and memorializing the results of classification reviews to protect defense from future liability. Defense also requested an order that privilege is not waived by engaging in the review process.

LT Kozinski (sp?) argued for the government that the privilege should attach and stay, but that the proposed changes go too far in constraining the authority of the OCAs and there is no authority for a court dictating how an OCA functions w/r/t its classification functions. When pressed on what is being dictated, she pointed to the proposed NDAs and memorialization requirements. She also noted that classification review personnel must be able to consult other components of the organization, so the compartmentalization could be problematic. Finally, the NDA requirement is outside the province of the court to order and is also unnecessary.

Mr. Connell said that he had no problem with reviewing personnel consulting other components of the OCA on privileged information so long as those components aren’t involved in the prosecution. He could also agree to an OCA keeping copies of his privileged documents with a proper compartmentalization order. But without such an order or an NDA, they could turn over copies of his privileged documents to the prosecution or to anyone without any repercussions.

AE013KK concerned an amendment to the protective order that would correct the classification status of filings after it has been determined by the OSS (which happens after they are filed with defense counsel’s initial determination as to their classification status). The government did not oppose the motion, but there was some discussion as to what exactly the problem is. (Clearly the judge does not use the docket tool on

After lunch, Mr. Harrington stated for Mr. bin al-Shibh that due to conflicts with the guards he wished to leave for the afternoon. The judge had a colloquy with him after which there was some doubt as to whether he voluntarily wanted to leave, or felt that his situation with the guards meant that he had to leave. He claimed that the guards were psychologically torturing him by disturbing his communications with his attorney and by only serving him food when he would be unable to eat it. After a short recess for Mr. Harrington to speak to Mr. bin al-Shibh, the colloquy repeated and he stated he would voluntarily leave. After he left there was some discussion of whether the judge could do anything about the alleged activity of the guards. Result: probably not.

Next was AE013II, also addressing how to handle open-source information that must be treated as classified on at least one reading of the protective order. Mr. Connell’s testimony mainly concerned the NYT example. He asked that the protective order be modified to allow him to access and print open-source information on his computer, regardless of whether it is about RDI. He also asked for an unauthenticated OCA (CIA) memo provided to him without date or author, which articulated that open-source information need not go through classification review until it is included in a pleading, be incorporated into the protective order. The government argued that the protective order was already consistent with the OCA memo, and that the protective order incorporates OCA guidance so the defense can already save public-source information per OCA guidance no matter what the protective order says. Defense only needs to seek OSS/OCA guidance on a specific document if there is reason to believe it may be unlawfully disclosed or otherwise classified.

Mr. Connell asked what happens when info is contained in both classified and unclassified sources. He pointed to a case in which the DC Circuit held that the Army was wrong to revoke someone’s clearance where he relied on open-source information in making a disclosure, even though he was cleared to access the same information as classified from the government source. (677 F2d 131—didn’t catch the name). Ms. Bormann expanded on this with a real-life example where she was unable to receive information from her investigator because she didn’t have access to the right security procedures, and it was information from an open-source, but that she already knew from a classified source.

Next was AE013JJ, a defense motion to allow client participation in the defense. This motion seeks an amendment to the protective order that would allow defendants access to classified information where it is being used against them. Mr. Connell argued that the protective order already allows review when the information is the defendant’s own statements, but that the defendants are also entitled to see all the information presented against them, including classified information. This entitlement arises from the MCA, which states that all evidence admitted by any rule or procedure must be provided to the defendants.

The judge and counsel had substantial back and forth on whether evidence can only be admitted on the merits, or whether evidence in pretrial hearings (e.g. attached to motions) is also admitted for the purpose of this MCA provision. Mr. Connell argued that since this provision of the MCA was inspired by the Hamdan I ruling about the Geneva Convention Art. III requirements, it does not directly track an explicit federal court requirement. Still, at least twelve federal courts have issued protective orders giving defendants full access to classified information against them, including that used in pretrial hearings.

The judge was skeptical that a defendant in an Article I court could have more rights w/r/t classified information than a defendant in an Article III court, especially where the basis is the Geneva Convention. Mr. Connell reiterated that the basis is the MCA, and that the MCA provision is consistent with the general principle that defendants get access to all information to allow them to mount a defense. Mr. Connell also pointed out that Mr. al-Baluchi has so far been denied access to even his own statements, presumably due to classification.

Lt. Kozinski countered that there is in fact no federal case where a terrorism defendant got blanket access to classified evidence against him. Other protective orders at least use “as necessary” language, and many of the defendants in the cases the defense cites didn’t ever get to see classified evidence. Mr. al-Baluchi’s statements are currently undergoing classification review. Lt. Kozinski also stated the government’s position that “admitted” evidence in the MCA means evidence on the merits, and does not mandate disclosure of classified evidence used in pretrial hearings.

Mr. Connell reiterated the statutory basis for his argument, and noted that one of the two cases relied upon in in re Terrorist Bombing permitted disclosure of classified evidence to the accused where it was used in pretrial hearings.

Mr. Nevin argued that “admitted into evidence” in the MCA applies both to evidence on the merits and evidence considered in pretrial hearings. He argued that “any procedure” must include procedures such as today’s. If the judge didn’t want to allow the defendant to access classified evidence used in a pretrial hearing, he could simply decline to consider it if it was attached to a motion. The judge asked whether this is a determination better made on a case-by-case basis. Mr. Nevin stated that substantially all of the classified information in this case is about the RDI program. That information is central to both phases of the case, but especially to the sentencing phase. Therefore, especially in a capital case, all the evidence should go to the defendant. Ms. Bormann made similar arguments.

The judge then asked trial counsel if it thought accused should have access to their own classified statements in pretrial hearings. Lt. Kozinski said generally no, but the defense can still seek access through the court per the protective order.

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