Report below from Wednesday’s (Aug. 21, 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 and Tuesday’s hearings, here and here, BZ to Sparky for taking time from his summer to go to Gitmo.

Two defendants were present when the commission opened this morning—KSM and Mr. al-Baluchi. Commander Massucco (sp.?) again testified that the other defendants had knowingly and voluntarily waived their rights to be present using the standard form. Judge Pohl initially forgot to enter a finding to this effect in the record, but realized this omission and did so a couple hours later.

The substance of the hearing began with defense motions to compel witness testimony on AE008—the defense motion to dismiss for defective referral. The first motion to compel addressed was AE008BB, the motion to compel testimony by Mr. Breslin, who was legal counsel for Convening Authority (CA) Admiral MacDonald. The Military Commission (MC) previously denied a motion to compel this testimony, but that was before Admiral MacDonald’s testimony in the June hearing.

Mr. Connell, counsel for Mr. al-Baluchi, argued that the MC’s previous denial should be reconsidered on two grounds. First, the June testimony revealed that there was an investigation into the February legal mail seizure, which was overseen by the CA’s legal advisors, Mr. Breslin and Mr. Chapman. However, Admiral MacDonald wasn’t very familiar with the details of the investigation or the results. Therefore, Mr. Breslin’s testimony was needed to discover what sort of investigation occurred. This relates to the defective referral issue because AE008 argues that learned counsel did not meaningfully “represent” the defendants at the time of referral, since restrictions placed on legal mail prevented them from establishing a relationship. This also implicated counsel’s ability to submit pre-referral mitigation evidence, though it is a separate issue from whether defendants had a right to pre-referral mitigation.

Judge Pohl expressed concern about what remedy would actually solve the problems laid out in AE008 and other motions. Mr. Connell stated that the only way to solve the problems would be to both fix the mail problem and dismiss the referral as defective. That would give counsel the opportunity to meaningfully represent their clients at the time of referral, and to effectively argue for non-death referral. Judge Pohl pressed on whether there could ever be a sufficient referral if the mail problem remained. He expressed concern that finding a defective referral would remove the court from the situation entirely, and thus there would be no one to order that the mail problem be fixed. Thus, there may never be an adequate referral on defense’s theory of adequacy w/r/t the mail problem. Mr. Connell pointed out that the Joint Task Force (JTF) could change the mail policy immediately, or at any time, without a court order.

The second ground for reconsideration is that Admiral MacDonald said that Mr. Breslin was responsible for a policy draft that eventually became the December 2011 Woods memo on legal mail—the policy challenged as precluding meaningful representation. The CA cannot simply state its reliance on an investigation into an allegedly faulty policy when it created the policy to begin with.

Mr. Nevin, counsel for KSM, argued that Military Commissions (I think) Rule 601(d)(2) provides a “full-stop” prohibition on capital referral without learned counsel representing the accused. He emphasized that the rule says “represent” and not “appointed.” Whatever representation means, it must mean being able to communicate with the client. But under the December 27, 2011 order, some topics central to the defense are per se contraband and so cannot be discussed. This precludes “representation.”

Ms. Bormann argued that there are two issues w/r/t communications that warrant testimony from Mr. Breslin. First, the legal mail issue as discussed by other counsel. Second, that defense counsel was presented from bringing materials related to the defense into meetings with the accused. Admiral MacDonald testified that Mr. Breslin informed him this wasn’t happening. However, Ms. Bormann contends that it did happen.

The judge again asked whether the impediments to representation weren’t the real problem, rather than the investigation that would warrant testimony from Mr. Breslin. Ms. Bormann responded that her theory is that the CA was actively involved and knew about the access to counsel issues. Mr. Breslin was in charge of that issue. In addition, the pretrial advice to the CA contained no information about torture, despite its centrality to the case, particularly at sentencing. Mr. Breslin prepared that advice. Finally, the CA’s office (via Mr. Breslin) was responsible for clearing and granting access for the mitigation expert. If the expert had access, then counsel could have argued against a capital referral possibly to a different result.

CDR Ruiz argued that there is more to his position on the motion than mitigation as a right. He also argued that deprivation of counsel is a structural error, and so no showing of prejudice is required. He noted that Mr. Connell had asked to speak with Mr. Breslin about the issues in AE008 and Mr. Breslin had declined to speak with him. Therefore, it is difficult for defense counsel to attest to the relevance of Mr. Breslin’s testimony when they are not sure what he will say.

Judge Pohl went back to his common theme throughout these arguments. If the referral is defective, then there is no independent authority (i.e., judge) to rule on the problems that created the deficiency (e.g., legal mail). So, if the referral is defective, there might never be a sufficient referral because these problems could persist. He noted this time that the ramifications of dismissing the referral don’t matter, because if the referral is defective that is the end of the issue. However, this concern was clearly important to him.

(This concern seems misplaced at best. The judge seems to think he is the only one who can solve the mail problem. It seems to me that if the judge ruled that the referral was defective for problems A, B, and C, then someone will immediately fix those problems and it will be immediately re-referred. The concept that this case will never come back to trial because the legal mail policy makes an adequate referral impossible is absurd. The administration has a humongous interest in bringing this case. I would imagine that the President himself could (and maybe would) call JTF and tell them to change the policy, and they would be more likely to heed that command than an order from Judge Pohl.)

CDR Ruiz argued that testimony from Mr. Breslin is necessary because ADM MacDonald’s testimony made clear that he wasn’t really running the CA office. CDR Ruiz compared ADM MacDonald to an absentee landlord, with Mr. Breslin and Mr. Chapman as his property managers who were really running the show.

Mr. Groharing argued for the prosecution that there is a substantial evidentiary record on AE008 already. He argued that the defense had not shown even a hint of what Mr. Breslin would testify to that would advance defense positions. The judge asked whether the prosecution might fall back on a theory that the referral was not defective because the CA acted in good faith reliance on the investigation conducted in part by Mr. Breslin. Mr. Groharing stated that the prosecution would not advance such a good faith argument. He reiterated that the defense has not established relevance of the sought testimony.

Judge Pohl suggested that perhaps the defense hadn’t presented the relevance of the testimony because Mr. Breslin has refused to talk to them. Mr. Groharing pointed out that Mr. Breslin had a right to refuse to talk to the defense, that there is no reason to believe his testimony would differ from ADM MacDonald’s, and that there has been nothing new presented on the motion since the court denied it.

Mr. Connell argued that the prosecution’s position means that the prosecution gives both the prosecution and the witness an effective veto over the defense’s ability to call witnesses, where the prosecution has no such limitation. That is, the prosecution can deny a defense request to provide a witness, and if the witness himself chooses not to speak to the defense, the defense is incapable of showing why his testimony would be relevant because they don’t know what he would say. The prosecution, on the other hand, does not have to seek defense permission to call its witnesses and can simply subpoena witnesses who don’t wish to appear. That is, when the defense wants a witness that the prosecution doesn’t want to provide, it must file a motion to compel to get him or her, and that motion can be defeated by the witness’ refusal to talk to the defense. When the prosecution wants a witness that the defense doesn’t want to provide, it’s the defense who has to bring the action in court as a motion to quash a subpoena.

The judge pointed out that in both cases, the question comes before the court and the party seeking the witness testimony must show relevance and necessity.

Mr. Nevin pointed out that Mr. Breslin is not a bystander witness, but in fact gave the legal advice that resulted in the capital referral.

The next issue that came up was about to be resolved by a stipulation by all parties to expected testimony. However, the judge pointed out that general court-martial practice is to have the accused sign all stipulations. This presented a problem because some of the accused had not come to court, and would not be able to sign the stipulation immediately. Mr. Connell argued that the requirement for the accused to sign a stipulation in military commissions only applies when the stipulation has to do with the merits of the case. Where the stipulation concerns a pretrial matter, there is no defendant signature required. Ms. Baltes for the prosecution disagreed, and stated that court-martial practice should apply. The parties agreed to discuss further and revisit the issue.

AE008M next. This is a defense motion to compel documents related to the investigation conducted by the CA referenced above, including the report produced after the investigation. CDR Ruiz argued that the investigation caused the CA to stop issuing clearances to defense team members, and so greatly affected defense capabilities. The same problem arose w/r/t relevance, in that the defense had not seen the report and so did not know what it said. CDR Ruiz argued that the defense should have the opportunity to view the report before arguing about relevance.

Mr. Groharing argued that this approach would “turn discovery on its head.” He said that the prosecution has the obligation to do a relevance review whenever the defense requests discovery. In this case, the prosecution concluded that there is no information in the report that advances the defenses’ interests. The only material issue is the timing of the clearances issued, which is before the court in other evidence. Judge Pohl asked if the report includes any information about the CA processed clearance requests from the defense. Mr. Groharing said that there was only non-case specific information about clearance process. He stated that he had a copy of the report in hand that he would gladly provide to the judge.

The judge then asked CDR Ruiz if in camera review would be acceptable. CDR Ruiz stated that in camera review is the very least that the rules require. The prosecution didn’t object to in camera review either, but stated their position that it’s unnecessary.

Ms. Bormann stated that the CA’s failure to clear her mitigation specialist was a major problem for her mitigation submission and bears directly on the defective referral question. This investigation occurred concurrently with that failure and concerns the same subject matter. She pointed out that in an Article III court, the defense wouldn’t have to go through the prosecution to obtain a third party document (since this is a CA document), they would just subpoena it. Since the MCA requires a similar discovery procedure, the MC should allow the defense to decide what’s material to its interests—not the prosecution.

Judge Pohl stated that he would review the report in camera.

Next AE031V, the defense motion to compel testimony from CDR Massucco on the defense motion to dismiss for unlawful command influence. CDR Ruiz argued that CDR Massucco, as the Staff Judge Advocate (SJA) staff for high-value detainees (HVDs), was effectively the liaison between defense attorneys and their HVD clients and oversaw the search and seizure of the defendants’ legal mail in February. CDR Ruiz that since, under the MCA, unlawful command influence occurs whenever anyone interferes with defense relationships and decision-making, and since the mail seizures undoubtedly affected relationships and decision-making, CDR Massucco’s testimony is relevant and necessary to the motion. Though CDR Massucco previously testified on this motion, at that time it was not clear that privileged communications had been seized.

Mr. Groharing argued for the government that he has spoken with CDR Massucco about this and CDR Ruiz has not. CDR Massucco has the same knowledge as when he testified previously, and the defense has not articulated what relevant testimony he would have to give. CDR Ruiz pointed out that he couldn’t have had the same knowledge, because he since learned which documents were seized.

AE031F next, which is a defense motion to compel evidence from CPT Welsh on whether attorney/client communications were monitored and who was monitoring them, as related to the defense motion to dismiss for unlawful command influence. CPT Welsh previously testified about JTF’s combination of detention and intelligence functions, and an intelligence task force that was disestablished at some point in the past. CDR Ruiz stated that the motion seeks evidence of this disestablishment. On questions from Judge Pohl, CDR Ruiz stated that this goes to CPT Welsh’s credibility on other facts, but maybe not exclusively to credibility.

Mr. Trivett, arguing for the prosecution, stated that he had the documents in hand proving disestablishment of the task force. Judge Pohl asked why he didn’t just hand them to CDR Ruiz. Mr. Trivett said that he would consider it, but that the document doesn’t touch on what the defense alleges and there might be other reasons not to disclose the documents. Judge Pohl granted Mr. Trivett’s request for in camera review.

CDR Ruiz next argued on AE031M, a motion to compel testimony from the guards who searched and seized the defendants’ legal mail. Most of the relevance arguments up to this point were rehashed as related to the guards. Major McGovern argued for the prosecution that the timing is telling—the motion was filed in May 2012 and the searches occurred in February 2013. He also argued that the only relevant facts were addressed in CDR Massucco’s testimony.

Next was AE047, which is a defense motion to compel communications between the CA and the President’s office for the motion to dismiss due to unlawful command influence. (The motion was filed before the naming convention changed, and so has its own number even though it relates to AE031.) Mr. Connell noted that this request is more fully considered in AE168, and is critical now because the role of other agencies in the decisions about legal mail policy wasn’t evident until June. Major McGovern argued that there is a strong presumption that the CA performs his or her duty without bias, so searching through various communications is unnecessary. This is especially true given that ADM MacDonald stated unequivocally that no one influenced him in making his decisions as CA. The prosecution doesn’t think it should have to bother the White House with this concern.

Mr. Connell noted that the motion wasn’t just seeking potential communications, but seeks actual communications testified to by ADM MacDonald and CPT Welsh. CDR Ruiz noted that the case that the prosecution relied on for the statement that there is a strong presumption that the CA is unbiased concerned the right to cross-examine the CA on a claim of vindictive prosecution. These facts are distinguishable as the issue here is unlawful command influence, which makes whether the CA was biased as a result of influence a direct question.

Next some confusion ensued about whether there is a pending motion relating to AE144. The confusion seemed to stem from the naming convention change. AE144 was filed as a vehicle for addressing the legal mail issues, and so is effectively subsumed under AE018.

Judge Pohl then brought up three pending motions—AE032K, AE032N, and AE032E. CDR Ruiz noted that 32K is essentially the same as the previously discussed motion for compelling testimony from guards relating to seizure of legal documents. He also noted, though, that privileged materials he had submitted under seal had not yet been addressed. He said that 32N should stay pending, and that 32E contains classified information and so requires a 505 hearing.

MAJ McGovern argued that in addition to 32K seeking cumulative testimony, the judge has already ruled on the factual predicate that the sought testimony would elucidate. Finally, to the extent that the testimony might address ongoing violations, there is an interim order that addresses the issue.

Mr. Swann argued that 32N is not ripe yet, and that a privilege review team (PRT) must review DVDs that defense counsel wishes to show to defendants as addressed in that motion. CDR Ruiz replied that the DVDs contain attorney-client privileged information, and so that resolving AE018 would likely resolve AE032N. He expressed concern for how deeply a PRT would look at the privileged content of the DVDs. Ms. Bormann stated that, w/r/t 32K, she takes exception to MAJ McGovern’s statement that the court should accept JTF’s findings about guard force interference with privileged information and communications. She said that after a blanket statement that no seized information was privileged, she saw with her own eyes that some of it was privileged. Without more testimony from guards, she doesn’t know what remedy to ask for.

Recess one hour for lunch. Return at 1404.

Mr. bin al-Shibh is now present.

Ms. Bormann requests that her co-counsel, translator, and a paralegal be allowed to exit to holding area, where Mr. bin Attash is currently held. He wants to participate in the hearing but is too sick to be in the courtroom. There is no objection from the prosecution and the request is granted.

Next the court considered the defense motion for reconsideration of AE018, the government motion for a privileged written communications order. Mr. Nevin stated that after the hearing in June, he submitted a revised privilege order suggesting changes. The prosecution filed a memo objecting to most or all of the changes. (Mr. Ryan for the prosecution clarified that he objects to all changes.) Mr. Nevin challenged some of the prosecution’s arguments, then methodically reviewed his changes. First, he challenged the prosecution’s contention that he misconstrued the attorney-client privilege. He explained that the privilege extends to any statement that facilitates representation, not just statements of direct legal advice. Therefore, contrary to the prosecution’s assertion, a letter written by KSM introducing Mr. Nevin as his lawyer (for Mr. Nevin to present to a potential witness) is clearly privileged and work-product, but the order contained in AE018 identifies such a letter as non-legal mail.

Judge Pohl asked what limitation defense attorneys would have in what they could declare to be legal mail in Mr. Nevin’s rewrite. Mr. Nevin stated that the attorneys are bound by their own good faith following of the rules. He emphasized how difficult it is to build trust with the clients, especially given cultural differences, previous treatment, and the attorneys working for the government. It destroys this trust when the defendants see that their communications with their attorneys are subject to government intrusion.

Mr. Nevin also noted that, in the scheme under the order, the PRT is only supposed to review documents for the attorney-client marking, not for content. So, under current scheme (theoretically but not in practice), defense attorneys are sole determiners for when something is legal mail.

Ten minute recess to address problem with audio feed.

Mr. Nevin continued that every protective order issued in federal court contains an exception to the informational contraband definition for information and materials related to representation. Mr. Nevin reiterated the impropriety of the SJAs or guard force determining what is related to the defense. He gave an anecdote of an SJA demanding to know what defense a document pertained to when he attempted to bring it into a meeting with his client. He didn’t think he should be required to say, but he told the SJA anyway. The SJA said “that’s not a defense.” This is clearly improper. Mr. Nevin argued that you must rely on professionalism of the lawyers to conform to the rules. This is the case in every criminal prosecution in America, and it is unavoidable if privileged information is to be protected.

On the privilege team, Mr. Nevin stated he has been of two minds. First, the PRT should be left out. Since they are only reviewing for the banner marking and not content, they are unnecessary as anyone can identify the banner. Second, keep the PRT but change the wording of the order to protect the privilege. The order currently states that the purpose of the privilege team is to protect the attorney-client privilege “to the fullest extent possible.” This is something less than protecting it completely. Mr. Nevin argued that this language should state that the privilege team exists to fully protect the privilege.

Judge Pohl noted that Mr. Nevin also marked out language requiring the PRT to consult defense counsel before approaching the JTF when it sees information in legal mail that presents a security concern. Mr. Nevin asked how they could see such information if they are only reviewing for the proper markings, and not for content, as the order requires. Judge Pohl thought that this provision only protected the defense from having the PRT take information directly to JTF when/if they came across it, even if they came across it improperly. Mr. Nevin stated that a better way to assuage this concern would be not to have a PRT.

Mr. Nevin conceded that defense attorneys couldn’t send anything to their clients without any sort of security review by marking it legal mail. He said that there would probably be an exception for any physical contraband.

Mr. Nevin reiterated that despite prosecution assertions to the contrary, the legal mail procedures do violate the rights of the defendants. The mail procedures “define without exception elements of our defenses as contraband.” For example, all discussion of the history or context of terrorist attacks, such as discussion of American military presence in the Middle East, is defined as contraband. This evidence, which goes to motives and perspective of the defendants, is critical to the case and normal to present in any criminal proceeding. Defining it as contraband here is a violation of the defendants’ rights. Mr. Nevin noted that the the memorandum of understanding governing the administrative review board includes a contraband exception for information necessary to the defense, which defense counsel is allowed to define.

Mr. Nevin contested the prosecution’s claim that the contraband definition is comparable to other government provisions. None of the provisions the prosecution points to define defenses as contraband. Further, the definition of contraband in AE018 even covers some paragraphs in the charge sheets. So, under AE018, Mr. Nevins argues that he is not allowed to send the charge sheet to his client because it discusses jihad.

He challenged various other prosecution claims. He stated that defense counsel doesn’t use the legal mail system not because it’s not important, but because it violates the defendants’ rights. He stated whether the prosecution is involved in reviewing legal mail is irrelevant, since any third party review outside the privilege destroys the privilege. Finally, he challenged the prohibition on “propaganda materials.” Propoganda is a loaded term, and a thinly veiled reference to information about historical context. It is not the government’s or prosecution’s role to define propaganda. If information relates to a valid defense—and historical context does—then it must be accessible by defendants. Otherwise Mr. Nevin is exposed to an ineffective assistance of counsel claim.

Mr. Nevin stated that the markings of privilege should be on the back of the pages of documents, so that they are easier to see and present less of a risk of exposure to privileged content. In addition, he stated that defense counsel should not be required to initial every single page of multi-page submissions, and that defense counsel should be allowed to directly deliver non-legal mail to the JTF instead of being required to send it by USPS. He said that the SJA should seal mail from KSM to Mr. Nevin in front of KSM and then deliver it directly to a defense courier. KSM shouldn’t be required to retain attorneys himself—other organizations should be allowed to retain attorneys for KSM so long as they can get proper clearance. Disciplinary status should not affect KSM’s ability to speak with his attorneys. Finally, the guard force should not review meeting notes of either KSM or his attorneys.

Mr. Ryan argued for the prosecution on AE018. He argued that there must be a robust security process in place. The security concerns are not idle. Evidence was presented in June that the defendants were found in possession of a pen refill and an “Inspire” magazine marked as legal mail with an article about bomb making. Other al-Qaeda cases show the extent of security threats from detainees. The defense attorneys aren’t required to think about security. In fact, they only have to think about loyalty to their clients. But the judge must balance communication concerns with the security of the guard force. The defense’s proposed order offers no balancing at all.

Mr. Ryan poined out that the government’s drafted order is identical to the one Judge Pohl issued in al-Nashiri, which was significantly less restrictive than the order the government sought. Judge Pohl cautioned Mr. Ryan not to rely on al-Nashiri as each case is unique. (He effectively said that he didn’t want to hear about al-Nashiri.) Mr. Ryan next pointed out that first the defense demanded “unfettered access” to the defendant. That was patently unreasonable. Only five months ago did they propose revisions to the government’s drafted order at AE018.

Mr. Ryan next began to review reasons for concern with Mr. Nevin’s specific changes. He noted that Mr. Nevin’s definition of contraband allowed the defense to decide that something is not contraband only on the “subjective reasonable belief” that it is relevant to a defense. Judge Pohl asked if the prosecution’s drafted order was over-restrictive in that it prohibits defense counsel from discussing historical context with the defendants. Mr. Ryan conceded that it might be over restrictive, but it should not be amended to give the defense all the authority.

Mr. Ryan pointed out that Mr. Nevins changes would allow whole books to be marked attorney-client privileged, even though neither the attorney nor client wrote the book. Then, the guards could only search the books for physical contraband, and not review for content. This could mean that some very “inflammatory and incendiary” material could come into the facility.

Mr. Ryan noted that Mr. Nevin submitted a D.C. District (DDC) protective order on a GTMO case that substantially undercuts the defense position. This order doesn’t forbid the PRT in that case from reviewing the content of communications. Further, the contraband exception for case-related material is very narrow. Finally, the DDC order allowed the guard force to approach JTF with any security concern, while the prosecution’s drafted order requires the guard force to approach the defense first.

The judge interrupted Mr. Ryan to ask if he could stop there and pick his argument back up tomorrow. This seemed abrupt as it was only 1625, and most of the gallery expected to stay until 1730 or 1800. Court was adjourned for the day around 1630 without explanation.

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