10/22 Motions Session #3: On the CAT, Part Two

And … we’re back.  Ever briskly, court and counsel discuss a recently reached factual stipulation regarding expected testimony from CDR Jennifer Strazza, whom the defense had sought in connection with several of its long-pending motions.  Judge Pohl explains the stipulation’s effect to the five accused; one by one, each agrees to the stipulation’s consideration by the military judge.  Stip-talk done with, we return to AE200, and to the Convention Against Torture’s (“CAT”) implications for this military commission case.  It’s a subject for CDR Walter Ruiz, who will argue the motion’s substance.

Ruiz’s argument proceeds in two parts, beginning with this: under the protective order, he cannot perform a capital case- sufficient investigation into allegations against his client. And the remedy, he says, is dismissal of charges or at least a downgrade of the case, from capital to non-capital.

Ruiz then turns to part two: my client has an individual, judicially enforceable right here, to protest his treatment under the Convention Against Torture. Judge Pohl: is the idea that the Convention Against Torture prohibits classified information restrictions of the sort handed down by the protective order? The lawyer answers that the "you can't tell what we did to you because it is classified" move cannot be made by any party to the CAT, in order to hide evidence of war crimes, or to prevent embarrassment. And, the lawyer goes on, Ruiz and company have repeatedly asked the CIA to declassify interrogation informed---but it has refused.

The court wonders once more about the practical effects of Ruiz's requested relief.  The latter again tells the military judge that he should either dismiss the case or take the death penalty off the table, given Ruiz’s inability to vindicate his client’s rights under the CAT.  He’s not seeking, for example, to file a complaint under the treaty, or to advance a CAT-based cause of action---though he surmises that, in fact, the commission could free up Al-Hawsawi to communicate with third parties, about possible CAT litigation.  (Ruiz has in mind a human rights group, which desires to assist Al-Hawsawi in advancing claims under the CAT.)  Again the court is confused: even if I remove commission-ordered restrictions on the accused, then others still remain in place, and those seemingly frustrate Al-Hawsawi’s ability to file Convention-based petitions.  Ditto for Ruiz; why would he want to empower a third party to communicate so liberally with his client, given his own obligation not to divulge detainees’ interrogation-related remarks with uncleared persons?  The move wouldn’t benefit Al-Hawsawi in this capital case.  The question hangs as Ruiz seeks and obtains a moment’s pause.  When he returns, he reiterates: dismiss the case, your honor.  Or downgrade the charges to non-capital, or re-tool the protective order, so as to remove unlawful protective order restrictions on the accused.  The latter must have a reasonable avenue with which to enforce Al-Hawsawi’s rights under the Convention---and to communicate with folks who might help him do that.  One more question to the lawyer: is the CAT self-executing?  No, answers Ruiz, who sums up some more, and then sits. 

One of Khalid Sheikh Mohammed’s lawyers, MAJ Jason Wright, adds two cents, the first regarding the CAT's status under U.S. law.  A defense witness, if called, would testify that a key CAT-based standard applies in U.S. courts, notwithstanding the absence of implementing legislation.  And the Supreme Court has, moreover, upheld customary international law standards, even in settings where treaties haven’t been signed by the president or approved by the Senate.  The court summarizes aloud: so, in the defense's view, the protective order must be modified so as to allow for communication about CAT claims, despite the absence of legislation giving Mohammed and company the right to do that? Correct, answers the attorney.  And we have to pursue that process, he continues, in order to discharge our ability to provide adequate representation, and to protect Mohammed’s rights under the Constitution.

These last two arguments return the military judge once more to his leitmotif: so you want me to enable your client to divulge classified material to third parties?  Okay.  But how would that affect counsel's non-disclosure obligations?  Wright parries a bit, and ultimately answers by highlighting his narrow focus: here, defense counsel is concerned only with this commission case, and not with the decisions of any original classification authority---who, in any case, shouldn’t be covering up war crimes by means of promiscuous classification decisions.  Eventually, Wright acknowledges that, no, he can’t disclose classified material to uncleared folk, protective order or no.  Still, that doesn’t take away from his side’s assault on particular paragraphs of the protective order, which, Wright seems to suggest, go beyond obligations imposed by virtue of defense counsels’ security clearances.  There’s a lot at stake here, Wright goes on.  Recall that an alleged 9/11 co-conspirator was not charged in this case, precisely because the Convening Authority received and credited evidence of that person’s torture.  A bit more, and Wright returns to his seat.

Cheryl Bormann leaves hers, and adopts her colleagues’ arguments.  Judge Pohl interrupts, to----surprise---remind her that modification, or even rescission, of the protective order won’t result in counsel’s liberal dissemination of classified material to third parties.  But Bormann presses on, first by pointing out some hypocrisy: the protective order gags defense counsel in a way that, say, the CIA very much hasn’t gagged the enhanced interrogation cheerleader and former CIA official Jose Rodriguez, in his book Hard Measures.  The court asks Bormann, do you think the protective order treats some unclassified material as classified?  It can, she answers, while noting a few protective order paragraphs that need amending.  Among other things, her revisions would conform the protective order to classification guidance, and make clear that Bormann’s execution of the order’s Memorandum of Understanding would not eviscerate rights afforded her client by the CAT.  (She finds the idea of doing that offensive.)  For Bormann, the gist is this: you can’t gag somebody from talking about torture, and then ask to kill them.  But if the government wants to to gag the accused, then the proceedings must be abated, or the death penalty must be taken off the table.  Of course the government can always make this a fair fight, and unilaterally declassify interrogation information---but we know it won’t.  A bit more, and then Bormann concludes.

Ramzi Bin al Shibh’s lawyer, James Harrington, offers up some remarks of his own.  The issue here, he says, is the validity of the protective order: does it violate the CAT?  That’s the way the question must be framed, in Harrington's mind.  The attorney sits, and J. Connell III opts to present his argument later, after the day’s Rule 505(h) session.