Report below from Thursday’s (Aug. 22, 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 this week’s other hearings, here (Aug. 19 hearing),  here (Aug. 20 hearing), and here (Aug. 21 hearing), BZ to Sparky for taking time from his summer to go to Gitmo.

KSM and al-Baluchi are the only two defendants present. Mr. Swann had the standard voluntariness discussion with [Lieutenant Commander] Massucco. [Lieutenant Commander] Massucco noted that Mr. bin al-Shibh will probably come in the afternoon. In addition, Mr. bin Attash had come from the camp to the holding cell, but didn’t feel well enough to come inside. Ms. Bormann asked for the same arrangement as yesterday—defense attorney, paralegal, and translator staying in the cell with Mr. bin Attash. Judge Pohl granted the request.

The hearing began with a lengthy discussion about what motions would be addressed today and tomorrow. There was considerable confusion all around about which discovery motions related to which substantive motions. The judge ended up asking counsel to identify every substantive motion that a filed discovery motion relates to when sending it to the clerk. (After lunch, the judge rescinded this on the clerk’s request, and told counsel to continue filing each discovery motion under the heading of every substantive motion it relates to.) Ultimately, even though CDR Ruiz had asked to take testimony on his Convention Against Torture (CAT) motion (AE200), and the prosecution had agreed even though they haven’t briefed the motion yet, that testimony will be delayed until the next hearing on Mr. Connell’s request. At the end of the discussion, Judge Pohl gave a short lecture on being prepared to argue the motions that are on the docket, even if they relate to motions not on the docket.

The first substantive argument in the hearing was a continuation of Mr. Ryan’s argument from yesterday for the government opposing the defense’s proposed changes to the legal mail order (AE018). First, he recapped the key points of his argument from yesterday about the District of Columbia District (DDC) protective order in the GTMO defendants case. Namely that the DDC order permits the privilege review team (PRT) to do content reviews, defines “related to the defense” exception to contraband information narrowly, and that the PRT reports security-related information directly to the Joint Task Force (JTF) without first consulting the defense attorneys.

Mr. Ryan further argued that there is a spectrum of appropriate materials defense attorneys might send into camps. For example, the 9/11 Commission Report is clearly case-related, and the PRT should review the content to make sure it’s what it should be, and then forward it to the defendant. However, there are also books that discuss acts of violence and exhort future violence against the U.S. Even if this is represented as case-related, the PRT should be able to prevent it from entering the facility because it is contraband. If the defense doesn’t like a decision that an item cannot enter the facility, it can seek judicial review.

Mr. Ryan characterized this issue as the parties missing the forest for the trees, or for the leaves on the trees. He emphasized three basic components of the broader situation. First, the detention facility has a right to maintain good order and discipline, and the government generally has a right to protect security. Second, the defendants are charged with committing acts of terrorism against the U.S. and killing nearly 3,000 people. When you’re charged with that sort of crime, your communication will be restricted. Third, despite all this, the prosecution’s drafted order is still reasonable and protects the defendants’ communication interests.

Mr. Nevin reiterated his point that no protective order in a criminal case in history had gone so far, and that Mr. Ryan had not identified one. He argued that the DDC order actually supports the defense position. That case is not one in which the detainees are presumed innocent, or where the standard is beyond a reasonable doubt. But even where these protections are absent, the order is still more broad than the government’s proposed order. The DDC order does not make information about the Rendition, Detention, and Interrogation Program (RDI) contraband, while the proposed order makes this information contraband despite its relevance to defenses.

Judge Pohl asked about the 9/11 Commission Report example. He asked if there would be any problem with the PRT reviewing the content in that case. Mr. Nevin said that would be a problem. He said that he might have highlighted certain portions. After PRT review in the proposed order, the prosecution could question KSM on the stand about having read it and what parts were highlighted. The judge asked what Mr. Nevin could send that would not be privileged. Mr. Nevin said that he sends volumes of unprivileged, nonlegal mail. Finally, the judge asked about the Inspire magazine issue. Should that automatically go in with a privilege stamp? Mr. Nevin pointed out that the prosecution is proceeding on a conspiracy theory with al-Qaeda in the Arabian Peninsula (AQAP), that the prosecution would put in evidence about what AQAP has said in arguing for KSM’s conviction and execution. In this context, he must be able to discuss those relevant materials with his client. So the issue of Inspire magazine was privileged because it is part of the defense. He said that if the prosecution isn’t willing to trust the professionalism of defense attorneys, they shouldn’t have brought charges against his client.

Mr. Nevin made two more points. First, the case is about people alleged to be at war with the United States, who are held in military custody, being tried in a military commission, and being prosecuted and defended by military lawyers. The notion that inflammatory language would threaten security in the facility is unreasonable. That is exactly what the case is about. Second, there is no problem identifying the detainees’ legal notes that come from meetings with counsel. [Lieutenant Commander] Massucco says that there are already a lot of legal notes, and that the guards are just stamping each page of legal pads. Rather, the problem is with following the rules after information has been identified as legal notes.

Ms. Bormann spoke next. She pointed out that books can clearly be privileged. The charges in the case have spurned hundreds of books, and some of the books’ authors will likely be witnesses. She pointed out that under the government’s proposed order, the only way for her to communicate with her client about passages in “contraband” books is to transcribe entire passages herself and send as privileged legal mail. If the court grants AE018, she will spend upwards of twenty hours doing this almost immediately. This is not the best use of her time. AE018 would also bar her from bringing books into client meetings. Same problem arises.

Mr. Harrington said that the underlying question lies with Judge Pohl. He emphasized that the prosecution bears the burden of convincing the judge that every restriction they request is ncesseary. They haven’t done that. Also, the government has previously represented to the court that it would not listen to attorney client meetings. This means that if Mr. Harrington had an amazing memory, he could memorize passages of “contraband” books and then recite them to his client without any problem. If the court trusted defense counsel, there would not be a “case-related” category for documents—only non-legal or privileged. Determining what is privileged is the task of defense counsel, not a PRT or the judge. Requiring defense counsel to justify its every decision is “abhorrent to our system of justice.” This is not like other cases. It is impossible to treat these defendants any more securely than they are already being treated. There is no language more inflammatory than what is already in the charge sheet attributed to the defendants. Inflammatory language is the subject matter of the case. Finally, the PRT is not part of the privilege. PRTs in other cases are also not part of the privilege. And defense attorneys in other cases involving PRTs would probably similarly say that they cannot adequately perform their functions.

LTC Thomas (counsel for Mr. al-Baluchi) took exception to Mr. Ryan’s statement that his only duty is to his client. He pointed out that the duty of military counsel includes defending the Constitution and discharging all the duties of an officer.

CDR Ruiz presented three envelopes that he had attempted to use for sending documents to his client. All three were returned to him after several weeks in various states of disrepair (one was sealed by empty). These problems make clear the need for an alternative to the USPS for delivering documents. Next, CDR Ruiz addressed the PRT. He pointed out that the PRT in the habeas case was created in order to provide guidance on classification. In this case, there is overwhelming guidance, including Defense Security Officers. He asked that the judge’s order include language on DVDs to the effect that whoever reviews mail should only inspect DVDs for the privilege stamp on the outside. The judge asked about when the DVD might include some privileged and some non-privileged material. CDR Ruiz said that this would be a rare situation, but that they could have a convention for naming files. Finally, he asked that the judge address client to attorney communications. He suggested that these should be treated as classified on the way out, and whatever is the standard treatment should apply when the come back to the clients.

Mr. Ryan had no further argument. On questions from Judge Pohl, he said that there is no evidence that the detainees are treated at the highest possible level of security, and that the prosecution would prefer if the judge addressed the DVD issue later. Mr. Ruiz then noted that there was a motion on the docket this week (AE032N) that did address the DVDs, and that he needs to get DVD material to his client as soon as possible

Some discussion ensued about whether a decision on AE018 would make AE032 moot. The defense attorneys made the case that the factual predicate underlying AE032 bears on other motions even if the relief would be moot. Court recessed briefly for Mr. bin al-Shibh to enter the courtroom. Some parties were late returning, and the judge, obviously frustrated, gave a short lecture about it. Discussion continued abut the relationship between AE032 and its discovery motions, and AE018. Defense counsel agreed to file future discovery motions under every substantive motion to which they were relevant, but insisted that argument on AE032 must include classified information and so a 505(h) hearing is required.

Mr. Connell next addressed AE133N, a motion to compel discovery about the courtroom audio session. Mr. Connell articulated four requests:

1. The prosecution should produce the individual who “pressed the button” to interrupt court on 28 Jan 2013.

2. The prosecution should produce any documents and technological information relating to what happened that day.

3. The defense should be allowed to interview audio tech staff in a sufficiently secure location for them to discuss aspects of the system they had previously refused to discuss.

4. The prosecution should provide as-built schematics for the audio system, which witness testimony established were being created months ago.

This information would allow the defense to determine if a motion is warranted.

Judge Pohl said that the defense isn’t supposed to file motions in order to develop factual predicates. Mr. Connell responded that the defense only needs enough information for a good-faith basis to file a discovery motion. The defense has a good-faith basis for a backward-looking challenge to the courtroom audio system. The motion seeks the documents and information necessary for the potential motion.

Mr. Trivett argued for the prosecution that they had given the defense access to the schematics it had. The prosecution is not required to create discovery for the defense. Also, the defense hadn’t shown the relevance of the discovery. Judge Pohl asked Mr. Connell if he is asking the prosecution to create something that doesn’t exist. Mr. Connell said that the prosecution’s claim is superficial. Even if the as-built schematics don’t exist, the information that would constitute them does exist and the prosecution has access to it. For example, the programming code for the system. On the relevance question, Mr. Connell said that the request should be judged on the general discovery standards, and the information sought is clearly relevant for a backward-looking challenge.

The commission recessed for lunch and returned at 1416 with Mr. bin Attash present in addition to the other defendants.

Mr. Nevin continued the argument on AE133N. He said that the information sought is necessary to resolve AE133, and so only the discovery motion is ripe. He said that all the information that the prosecution had so far provided has come with limitations and omissions.

Mr. Ruiz informed the court that Mr. al-Hawsawi is now present in the holding cell and requested a recess to speak with him. Judge Pohl said that the court has been accommodating of detainees’ requests to be present or absent, but if their movements end up causing delays he will require them to be present in court every day. He granted the recess, and the commission resumed at 1436.

Mr. Connell next argued AE091, which is a constitutional separation of powers challenge to the MCA on the grounds that the CA mixes prosecutorial and judicial functions. Mr. Connell listed all the ways in which the CA behaves as a prosecutor (e.g., referring charges, deciding whether capital, deciding witness immunity, receiving legal advice from the prosecution supervisor), then as a judge (e.g., detailing panel members, processing and maintaining transcripts, reviewing and modifying findings and sentence, and suspending sentence). He presented a hypothetical to show potential conflicts, which involved the CA granting immunity to one defendant for testimony against another (presumably on his or her belief that the witness is credible), then reviewing the findings of the court partly on the basis of witness credibility.

Even though these are substantially the same as the CA functions under the UCMJ, Mr. Connell argued that the different context is relevant, and that ruling the MCA unconstitutional would not apply to a CA under the UCMJ. This argument is grounded in the factors from Curry v. Secretary of the Army that justify the CA’s mix of functions under the UCMJ, which factors do not exist under the MCA.

Judge Pohl asked if the CA had different significant functions under the MCA, rather than just operating in a different context. Mr. Connell said that though the powers are the same, the roles of the CA in the two systems are different. The role was the important test in Curry. Under the UCMJ, the CA’s purpose is maintaining good order and discipline, not purely punitive. The UCMJ CA has more roles than just being a CA, such as duties as a commander, whereas the MCA CA has only one role in the system. The driving role for the CA under the UCMJ is combat-readiness. Finally, the CA in the military system is in the same service as the accused, whereas in the MCA this is clearly not the case. Mr. Connell’s overall point seemed to be that the MCA system would not survive scrutiny if a party exercised the functions of the MCA CA in an Article 3 court, and Curry suggests it wouldn’t survive under the UCMJ either given the relevant differences.

Judge Pohl asked what the exact constitutional violation is. Mr. Connell said the system violates the due process clause and the define and punish clause. Since the motion is a facial challenge, the only solution is for Congress to fix the statute.

The prosecution rested on its brief.

Next LTC Thomas argued AE106, a constitutional challenge to the MCA grounded in the equal protection clause. He argued that the MCA created the only MC in American history that discriminates based on alienage, and the only other governments that had set up such a system are Nazi Germany and Imperial Japan. LTC Thomas argued that the commissions may only discriminate based on alienage if the result of not doing so would be impractical or anomalous. But trying citizens in MCs is not impractical or anomalous as a matter of law because the Supreme Court said so in Ex parte Quirin. Similarly, it is not impractical or anomalous as a matter of fact because the U.S. has tried citizens by military commission before (at least 86 times in the Mexican-American war). The MCA creates a system that is “separate and unequal,” given that citizen combatants are tried under the UCMJ or in federal court.

LTC Thomas argued that strict scrutiny should apply. Rational basis for discrimination on the basis of alienage only applies to statutes regulating immigration, government benefits, or government service. This case is none of these, and Mr. al-Baluchi’s situation is identical to that the Supreme Court rejected in Wong Wing.

Judge Pohl asked if this is a challenge based on a limitation on Congress or based on a personal right of Mr. al-Baluchi. LTC Thomas said it is both. He further explained that the MCA fails on rational basis as well, since Quirin says it’s not necessary and Americans are tried for the same crimes in federal court. The jurisdictional provision is not severable, and without it the MC has no one to try. Congressional testimony makes clear that Congress would not have passed the MCA if it had jurisdiction over citizens. Finally, even if the detainees can’t be transferred to the U.S., federal court could come to GTMO. Since the MCA discrimination is not related to a legitimate interest, it fails rational basis.

Gen. Martins argued for the prosecution. He argued that Congress established a robust system for trying noncitizens that would survive a due process challenge if the detainees are determined to have due process rights. The prosecution’s position is that the commission does not need to decide whether the detainees have individual rights relevant to the motion. There is an entire chapter of the U.S. code that applies only to noncitizens. The defense is unable to distinguish cases about differential treatment of noncitizens in FISA courts. Those cases were decided on a rational basis and though they didn’t concern criminal trials, they were in a criminal posture. It was rational for Congress to decide that noncitizen enemies will have fewer contacts with the U.S., making collection of evidence more difficult, and so it is rational to create a separate system.

Gen. Martins also argued that the strict scrutiny cases are distinguishable. Wong Wing didn’t get a trial at all, and here the defendants are getting a robust trial. And here, the defendants “opted-in” to jurisdiction. Judge Pohl questioned this opt-in point. Gen. Martins said that the defendants could have chosen not to fight illegally, and thus avoided MC jurisdiction. Judge Pohl asked if Gilani opted-in to federal court jurisdiction. Gen. Martins said no, but his point is that the defendants put themselves at risk.

LTC Thomas argued in his reply that Wong Wing says aliens cannot be held for capital crimes without indictments. Judge Pohl pointed out that accused under the UCMJ are not indicted. LTC Thomas again pointed to Yick Wo and Wong Wing, to the differences in context between a MC and a court-martial, and noted that the court must rule out strict scrutiny before applying a rational basis test.

Mr. Nevin argued that Gen. Martins’ opt-in argument denigrates the presumption of innocence. Judge Pohl expressed doubt that any defendant opts-in to any jurisdiction, but he doesn’t think the remark or the question are particularly significant. Ms. Bormann said that when the government prosecutes someone in a criminal trial, all personal rights attach regardless of citizenship. Gen. Martins responded that since the MC ultimately decides the question of jurisdiction, there is no problem for presumption of innocence. He then pointed to Eisentrager for the proposition that the citizenship distinction is very important in the context of hostilities. Congress can make different rules for noncitizens so long as the system remains fair, and the robust MC system is fair.

Court recessed and returned at 1600.

Mr. Connell argued AE104, a motion to dismiss because the MCA exceeds Congress’ power under the define and punish clause by limiting jurisdiction to noncitizens. Mr. Connell started with Eisentrager. He noted that Eisentrager is about individual rights, and the define and punish clause imposes a structural restraint on Congress. Mr. Connell made five points:

1. Congress’ power to issue the MCA clearly comes from the define and punish clause.

2. Congress’ power is limited to violations of the law of nations, and Congress cannot authorize law of nations trials in a system that violates the law of nations.

3. Geneva Conventions Common Article 3 is part of the law of nations, and it requires MCs to follow court-martial rules unless deviations are justified by practical needs.

4. Here, there is no practical need for deviating by restricting MCs’ jurisdiction—there can be any sort of MC trial at GTMO.

5. Therefore the MCA violates the define and punish clause on its face.

Judge Pohl asked if UCMJ Article 10 would also need to apply to MCs using this argument. Mr. Connell replied that there might be a practical need to deviate from the speedy trial provision, but there is clearly no practical need for the citizenship distinction.

Gen. Martins responded for the prosecution, arguing that the Geneva Conventions require a “regularly constituted court” and that Hamdan countenanced deviations from court-martial practice without finding specific practical needs. A regularly constituted court means one “set up in accordance with recognized principles” that apply in the administration of justice, which requirement the MCs satisfy. Geneva Conventions Common Article 3 allows flexibility, only requiring “regularly constituted.”

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