Anxious to kick off two weeks of pretrial hearings in the case against Khalid Shaikh Mohammad and fellow 9/11 defendants, military judge Army Colonel James Pohl gavels us in at 8:59am.
Among preliminary matters, Michael Schwartz, counsel for Walid Bin’Attash, is withdrawing from the case. It won’t affect his team’s ability to argue anything today but is unclear what effect it may have as we proceed in the week.
First item on the agenda is a medical records discovery issue. The problem from the defense’s perspective is twofold: first, that they have not been provided all of the relevant records, and second, that the records they do have contain substantial redactions. The defense wants to be able to review the records directly and make relevant copies, not receive the material filtered through the prosecution. The prosecution has agreed to inspect the records and identify records that were not produced to the defense, but not to let the defense inspect the records directly.
The prosecution details its exhaustive review of the records in question and assures the court that the defense will get all missing records but they are “undergoing a process right now.” The defense is concerned that significant issues remain as to the records covering the period from 2003 to 2006, a period for which the defense has only summaries of records rather than the records themselves, as many of the documents refer to activity at CIA black sites.
The defense stresses that all of the records are potentially critical for the defense to paint a picture of the detainees’ circumstances: “X-rays are the kinds of things that reveal broken bones and changes in bodily structure. Dental records can be consistent with food manipulation techniques that were used as part of the torture program at an earlier time.”
Cheryl Bormann, counsel for Walid Bin’Attash, quotes from last week’s hearings in the Nashiri case, in which military judge Air Force Colonel Vance Spath noted that he had been assured that all medical records had been turned over in that case, only to have 1600 more pages produced later on. “That’s where we’re at,” she says. Further, Bormann is offended by the framing of Robert Swann, a military lawyer for the prosecution: “Mr. Swann gets up and talks about dermatology appoints, but that’s not what this is about. This is about determining to what extent these men suffered physical and other ailments as a result of torture.”
The defense wants the records with unredacted names, and has requested names with no answer from the prosecution. Swann says he’s happy to provide the unredacted names if the defense gives him a justification. Judge Pohl recognizes the specter of more delays:
Pohl: But my point being is what I’m hearing you say is that they’ve got to provide a justification for every name, and . . .
Swan: Just something.
Pohl: Well, you say something – but something has a funny way of becoming substantive.
. . .
Pohl: And then, of course, if they don’t give you enough something that you think is necessary, then we’re now litigating it name by name all the rest of the . . .
Swann: Yes, sir. I can’t say we won’t.
Pohl: Okay. I got it. Okay. Thank you. I understand the government’s position.
The defense reiterates the importance of access to all of the documents, including pre-2006 records—particularly given that the defendants may face the death penalty. Swann gets back up to rebut, but Judge Pohl throws him a lifeline: “Mr. Swann, you don’t really want to argue any more, do you?”
“No, I don’t,” Swann says. “I’m getting tired. It’s Monday morning.”
After briefly addressing a scheduling issue, the court takes a quick mid-morning break.
When we reconvene, Ammar al Baluchi’s attorney, Alka Pradhan, is up to argue a motion to compel discovery in support of Baluchi’s motion to remove his designation as a high-value detainee (HVD), which the defense views as a prejudicial vestige of CIA detention that impacts al Baluchi’s conditions of confinement at Guantanamo today. Because the designation affects his confinement, it likely affects his ability to participate in the trial, which may have due process implications.
HVDs are housed at Camp VII, while non-HVDs are housed at Camp VI. Attorneys who wish to visit their clients at Camp VII must have higher-level security clearances than those required to visit Camp VI. Camp VI detainees can make calls without a delay imposed for security. And in these death penalty cases where mitigation evidence will be relevant to sentencing, Camp VII detainees won’t receive the benefits of good behavior.
Pradhan stresses in particular that Baluchi has a completely clean disciplinary record from his ten and half years at Guantanamo. But Judge Pohl is concerned that if he’s being asked to remove the HVD label based on good behavior, then he’s going to be asked to order Baluchi moved to Camp VI as well: he doesn’t want to be in the position of running the detention center. Pradhan emphasizes that Judge Pohl could simply remove the label and then let the detention facility could decide for itself where detainees are held based on an affirmative determination of threat level.
Further, the defense wants Judge Pohl to ban the use of the term “high-value detainee” altogether, arguing that it is an arbitrary and prejudicial label in the commissions.
Swann is up to argue for the prosecution. He begins with a note about labels: “our law punishes people for what they do, not who they are or what they are labeled. But I suppose when you commit a mass murder of 3,000 men, women and children, you earn the definition as a mass murderer. And in some instances, you also earn the definition of a widow maker and an orphan maker.” The defense makes an immediate objection, which is sustained. Judge Pohl urges Swann to “just address the issue before” the court.
Swann turns to the motion, arguing that the defense must show that production of the witnesses “is warranted by a preponderance of the evidence.” The prosecution contends that the information they seek from the witnesses isn’t relevant to an action, that it’s beyond Judge Pohl’s jurisdiction to order this of the detention facility, and that this is just another waste of the commission’s time and resources.
Next up is a motion to modify the rules on designation of pro bono witnesses and experts to make coordination with the defense more convenient. Currently, in order to retain an expert, the defense has to physically take even the unclassified general discovery to that potential expert to sit down and then determine whether the expert can be helpful. The defense wants to be able to send the information electronically to avoid the transaction costs.
Turning to a motion specific to Mustafa al Hawsawi, his defense team reminds the commission that the issue stems from the seizure of materials from Hawsawi’s cell at Guantanamo in 2015. It turns out some of the materials seized were attorney-client privileged. Though they were returned to Hawsawi, it isn’t clear who exactly reviewed them to make the privilege determination. Some of what was seized was even taken from his legal bin, though not specifically marked attorney-client privileged. The defense asks that the government be sanctioned.
According to the government, the problem here is that the defense failed to mark privileged material, not that there was an intentional attempt to chill Hawsawi’s communications with his attorneys or gain access to privileged materials. The defense counters that not everything that is privileged can be stamped as such because Hawsawi produces privileged attorney-client material sitting in his cell and writing in some instances.
Moving right along, we’re onto a motion that goes to whether the defense must return a classified document when requested by the government and whether that presents issues under Brady v. Maryland, a Supreme Court case that requires prosecutors not withhold exculpatory evidence from criminal defendants. If the prosecution has to go to the judge to get the material back, that’s known in the trade as a clawback issue.
According to the defense, the first question depends on who in the government asks for the information back—is it the proper authority? If so, the defense concedes it would be required to return it. In the underlying facts of the motion here, the government actually produced the material as Brady material originally.
The defense’s position is that if the government wants it back, the commission should skip unnecessary steps and just determine whether it’s Brady material. If it is, the defense doesn’t have to give it back; if it’s not, they do. The alternative is for the defense to be required to give back the material and then come to the commission with a Brady motion to get back everything they already had.
Chief Prosecutor Brigadier General Mark Martins is up to argue this one for the government. According to Martins, the defense is clearly required by the Classified Information Nondisclosure Agreement that they all signed to return the information. The proper course, Martin argues, is that the defense promptly complies with their obligation to return the material and then separately make a Brady request.
Because of the classified nature of the specifics here, Judge Pohl decides we need to save this for a classified session. The court takes a ten minute break before moving on to another motion on security classification—the order on the subject says the defense will have access on a need-to-know basis as determined by the government. The defense’s position is that under the rules, if a defense attorney has the need to know, they can then determine who else within the particular defense team has a need to know.
Relatedly, the defense teams don’t have classification information guides so their defense security officers aren’t able to properly mark and submit material that the defense produces. The prosecution responds that it believes it has provided adequate classification guidance, and that the actual classification guides contain information the defense does not need to know and that doesn’t bear on this case.
Judge Pohl calls recess. We’ll pick up tomorrow by giving the defense an opportunity to respond to the government’s argument on classification guidance.