10/23 Motions Session #3: CAT Wrap-Up

It’s Connell-time.  Al-Baluchi’s attorney picks up with argument on AE200, and on the nexus between international law and classification law. (Again, his premise is that the military commission’s protective orders may deem as “classified” only that which the executive branch also can properly deem classified---and that the latter category doesn’t encompass observations of the accused, during interrogation at CIA hands.) You know the venerable old Charming Betsy canon, whereby ambiguous laws generally must be construed not to violate international law, where possible?  The court ought to follow that U.S court doctrine here, with respect to classification law’s broad compliance with international laws against torture.  Which is to say, classification law should be read as not allowing the government to torture people, and then ban them from complaining about it to international investigatory bodies.

A word about alternative accountability mechanisms.  The prosecution has cited the Department of Defense’s own “robust” investigative procedures, for example, which are triggered by torture complaints.  In 2006 one was made by Connell’s client, apparently, to a doctor---who Connell has sought as a witness here.  Guess what Al-Baluchi’s protest lead to?  Nothing.  Records were generated, with no follow up.  That doesn’t strike Connell as “robust,” suffice it to say. The military judge picks up on one implication of Connell’s argument, but nevertheless is somewhat puzzled by it: a third party might validate a detainee’s torture claim, for example, and then demand compensation that the United States might not pay.  What then, asks the court.  For an answer, the lawyer cites the wide variety of remedies available under international law, while castigating the narrow view of those remedies described by the prosecution.  One such remedy, Connell observes, might be the provision of interrogation information to cleared members of Congress---something the lawyer has sought in a separate motion.

The lawyer next mentions his classified filing, which will explain how the protective order harms Al-Baluchi’s ability to seek medical treatment. Mention of things medical return Connell to a theme from yesterday, regarding the defense’s ability to compel the attendance of witnesses; he reaffirms that, as he argued yesterday, the prosecution’s delay has undercut his argumentation, despite Connell’s strict compliance with witness rules.   Connell says a few more words, and then finishes.  Anything from trial counsel? Nope.  

Judge Pohl poses a "way forward" question to both parties, beginning with Connell.  What, he asks, if the court limited some of the protective order’s “classified information” language to that obtained during the course of military commission proceedings?  The idea, seemingly, would be to remove some prior, independent observations and experiences of the accused, during interrogation, from the protective order’s coverage. Defense counsel and the court bat around some hypothetical examples, teasing out the operation of such a regime; both agree on its evidently high difficulty level.  The pair push on a bit, alternately trading competing interpretations of the existing protective order, all the while keeping close to the question of whether, in fact, the protective order sweeps more broadly than executive branch classification law.  The judge declares that his ruling only encompasses classified information, and goes not a whit farther.  If Connell and company interpret it otherwise, then perhaps the protective order should be tweaked, he says.  Again, the rule is: if not classified by the executive, then not subject to protection, period.

How does prosecutor Clay Trivett feel about the possible “prior to case/after the case” amendment to the protective order, which the court discussed with Connell?  He doesn’t like it at all, it turns out.  Observations of the accused during interrogation are classified, as the accused were exposed to sensitive sources and methods produced by the United States; they moreover remain under control of the United States.  The prosecution thus objects to a change in the protective order’s “classified information” regime.  The court confirms the implication, which is profound: the executive branch can force information on somebody, and then prevent that person from conveying it to third parties?  Yes, answers Trivett.  And bear in mind the context: all this took place in an armed conflict, and where the government needed to gather intelligence from law of war detainees.  The armed conflict context, moreover, goes the question of whether the accused had classified information involuntarily.

The prosecutor’s answer stuns Cheryl Bormann, Walid Bin Attash’s lawyer.  Equally stunning was Trivett’s argument, yesterday, that detainees have adequate means of redressing torture complains. Thus she asks the court to hear argument from an international law expert and consultant to the defense, Tony Kadman, about whether, under international law, the United States really can shield torture complaints through its classification system.  The court ultimately bats away Bormann’s request, reasoning that the rules don’t allow for Kadman’s appearance under the circumstances.

CDR Walter Ruiz firmly objects to Trivett’s suggestion that torture was justified, given the wartime context and the need to discover intelligence. That directly contradicts the CAT, Ruiz says; it is clear that national security never justifies a violation of the treaty. Trivett rises to clarify his remarks: so far as concerns voluntariness, he meant only to underscore that Al-Qaeda attacked the United States, not the other way around.

Some housekeeping back-and-forth follows, regarding one or more witnesses who will testify in support of the case’s long-pending motion to dismiss the case for defective referral.  The issue, broadly, is Mustafa Al-Hawsawi’s English language proficiency, prior to the case’s referral. Ruiz says this was limited, and that the lawyer was not supplied with a needed translator to assist Al-Hawsawi during the pre-referral phase; Trivett disagrees, while insisting that the defense’s ability to submit mitigating evidence prior to referral (among other things, by obtaining accurate translations of would-be mitigation testimony from Al-Hawsawi himself) has no legal significance.  At any rate, the prosecution will stipulate, for purposes of the defective referral motion, that Al-Hawsawi’s English language skills were insufficient to understand counsel.

So are we off to lunch break?  No, not yet.  J. Connell III has a few remarks on AE200, the CAT, and the keeping of secrets.  Remark the first: so far as concerns the universe of information that can be classified, he says, the standard is not whether a person is under the control of the United States, as Trivett suggested.  Instead the question is whether information is under its control---as the observations of the accused during interrogation must certainly are not.  Connell also rejects Trivett’s “sources and methods” claim.  Well, if that justifies secrecy with regard to these accused, than it might well have justified, say, gagging civilians who witnessed the Hiroshima bombing, and who also involuntarily acquired information regarding the once super-secret Manhattan project.  But we know that didn’t happen, though.  Connell sits.

The last word belongs to David Nevin. The lawyer says his client has been termed a “participant” in the RDI program.  Taken together with Trivett's comments, this suggests that KSM voluntarily subjected himself to torture.  Can that be the government's true position? If so, Nevin will need to be heard before the court makes a ruling.

Okay, now it's really chow time.