10/23 Motions Session #4: Ex Par-Tay

Under discussion this afternoon: secrecy rules.  The subject arises first in connection with AE73 D and G, defense bids to clarify or retract, respectively, a prior ruling.  This affirmed the government’s authority to make unilateral, ex parte submissions to the court, in matters concerning classified information.

David Nevin takes up the motions.  He relies on Section 4 of the Classified Information Procedures Act, itself the model for an analogue contained within the Military Commissions Act of 2009, Section 949p.  Here’s the problem, says Nevin: the civilian and military provisions are not identical.  And what’s missing from the disputed part of latter, 949p-4(a), is textual basis for the presentation of ex parte materials by prosecutors.  Thus his motion.  Sure, prosecutors challenge Nevin’s reading, but theirs goes well beyond the statutory text, which ought to control.  And in light of that text, any classified material---among them, declarations describing the basis for the invocation of a national security information privilege---must be provided not merely to the court, but also to the defense.  There’s a presumption of openness in any capital case, he intones, and all the more so absent clear statutory language.  He adds that, any ex parte procedure would be unconstitutional in a death penalty trial.

The court: suppose the government decides information is not discoverable.  Is it your position that I must review that determination?  Indeed you must, answers Nevin.  The answer causes Judge Pohl to bristle visibly at what, to his eye, seems like a massive surge in workload.  Where does that stop?  Doesn’t counsel eventually have to rely, at some stage, on the government’s good faith representations about providing responsive discovery?  Nevin clarifies: of course he’s not seeking judicial review of all concededly non-discoverable information, like lists of people on Social Security in Iowa.  No, he’s concerned instead with information implicated by the invocation of the classified information privilege, a process which is initiated by the government.  Only once it starts that process, and elects to withhold classified discovery, do court and defense counsel step in, under his reading of 949p.  That makes for much more modest position than the open-ended nightmare described by the court.  The point, Nevin goes on, is that ex parte submissions are a no-no, in the circumstances described by his motion.  Of course he acknowledges that ex parte showings can be made elsewhere, under different provisions of the statute---though he of course has separate problems with those, too.  A few words more, about the illegality of not providing ex parte materials to the accused, and ineffective assistance problems posed by ex parte procedures, and Nevin sits.  

Bin Attash lawyer Cheryl Bormann adopts Nevin’s claims, and makes a few of her own.   The defense’s proposal, she argues, would allow defense counsel to help the commission evaluate prosecution contentions about the classified information privilege.  She adds that all counsel have Top Secret clearances; if there’s no security risk, then why not involve defense counsel?   They are involved already, in fact, though in a scheme that doesn’t work especially well.  Under the status quo,  defense counsel furnish its theory of the case to the judge, so as to permit him alone to evaluate the prosecution’s proposed handling of classified discovery.  But that means Bormann has to fly blind, as she doesn’t yet know what the government’s approach will be; moreover, the current setup also requires her to reveal stuff she wouldn’t otherwise.  A more open system, with input from defense and prosecution alike, would improve greatly on the current one.  We can make a narrow argument, she says, and better inform the commission.

Ramzi Bin Al-Shibh’s lawyer, James Harrington, analogizes the defense’s motion to motions seeking exculpatory material under the Supreme Court’s storied Brady decision.  Before the fact, prosecutors always piously claim compliance with Brady, he argues---and yet in his experience, Brady material always, always comes out during trials, despite earlier pledges by the government.  Harrington is careful to emphasize that he is not, of course, alleging any bad faith by the prosecution here.  His point is, instead, that courts never sanction bad Brady behavior after the fact.  Thus the defense’s before-the-fact appeal here, and its attack on ex parte reviews under 949p.  Again, Judge Pohl expresses unenthusiasm for taking on additional discovery review obligations, over and beyond those elsewhere imposed by the statute.  Still, Harrington says he’s looking for as expansive a discovery universe as possible, and thinks the defense’s help would assist Judge Pohl, in making his secrecy rulings.

J. Connell III rises on behalf of Ammar al-Baluchi, and adds some context about 949p-4(a)(1)---that being a D.C. Circuit case construing the invocation of a classified information privilege, under the provision’s civilian counterpart in CIPA.  Such invocation, the court held, generally must be done publicly, save for situations when the mere invocation implicates secrets which cannot be discussed in the open.  Well, that’s not what we have here, he says, as all counsel are security cleared.  Another thing, about (a)(1)’s neighbor, (a)(2).  Under the latter, Connell underscores, only information brought to the court’s attention is at issue---as opposed to, say, the universe of all non-discoverable information out there in the ether.  The court: under part (a), the defense seeks access only to unredacted declarations needed to invoke the privilege?  Yup, Connell confirms.  Okay, then could you challenge these?  The lawyer thinks so, and describes a few examples of how.  Scope of classification decisions come to mind---like, say, the observations of an accused during CIA interrogation.  There are serious scope issues in play, in Connell’s view.

Rebutting the foregoing is a job for Lt. Kiersten Korczynski.  She trots out a bunch of cases, where courts have rejected defense attempts to amend CIPA by litigation, and to insert defense counsel into very sensitive secrecy decisions.  The court wonders about the textual difference here.  What about the disputed provision’s presence in CIPA, but its absence in the MCA?  Well, certainly not that Congress wanted commission accused to have greater rights than civilian accused in terrorism cases, answers the prosecutor.  She adds that in federal court, the invocation of classified information privileges is never litigated with defense counsel’s input.  The rationale is simple, too: the idea is not to spread a bunch of secret stuff around.  It is thus not enough for defense counsel to appeal to their clearances; they don’t have a need to know to go along with those, in every case.  She sits.

A reply from Nevin follows.  He says he appreciates the prosecutor’s position, which calls for CIPA to be applied at Guantanamo across the board, despite the absence of key CIPA language from the Military Commissions Act.  Of course that’s not what Congress said.  In fact, it omitted the language, and even went so far as to limit the application of court interpretations of CIPA in commission proceedings, to situations where the Military Commissions Act---wait for it---departs  from its civilian cousin.  So what’s up here?  In Nevin’s experience, policy arguments about what statutes really should say---as opposed to what they do say---fail in litigation before judges.   Nevin sits, and Cheryl Bormann adds only a word or three.

The AE73 series thus goes quietly into the night.  Or, at least, into the court’s inbox.