2/18 Session: Trying to Finish Classification Review “Within the Lives of Living Men” and Zero Dark Thirty Discovery

The commission is called to order with four defendants present (Khalid Sheikh Mohammed, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa al Hawsawi) and one conspicuously absent (Walid bin Attash.) Judge Pohl begins the session by swearing in an unnamed Army Major to confirm that bin Attash voluntarily waived his right to be present.

After a brief moment of confusion related to Appellate Exhibit (AE) 408 - or is it 408A? – everyone gets on the same page and realizes that it’s just bin Attash’s waiver form for today, as opposed to the one from yesterday’s session.

Judge Pohl lets counsel know the “order of march” for February 18^th. He wants to spend most of the day on AE397, the government’s proposal to consolidate all of the defendants’ motions to compel production of information related to the CIA’s now-defunct Rendition, Detention, and Interrogation (RDI) program. Before getting to that, however, he has a couple of questions left over from yesterday’s discussion regarding the discovery of approximately 8,000 pages of potentially classified information.

To recap, the defendants want to use certain documents that are “pending classification review.” In other words, the government stakeholders of the information contained in these documents---typically, organizations within the IC and DOD---have not yet determined whether the information is classified, and if so, what level of classification applies.

For this subset of information, the real issue before Judge Pohl is whether the defense or prosecution is responsible for initiating the classification review decision, and when this must be done. The government wants to put this burden on the defendants, using the defense review process, since it is after all the defense that wants these documents. In that process, defense counsel looks at the universe of ‘pending review’ documents and submits the documents they need for trial to the government’s Office of Special Security. OSS asks the various government stakeholders who might have equities in those documents to determine their level of classification. The problem with this approach, according to defense attorney James Connell, is that this process can take “between weeks and months [and] on some occasions, years.” And there’s another issue in addition to the delay: the defense review process was set up to review documents generated by the defense, but this subset of “pending review” documents was generated by the government.

Prosecution counsel Clayton Trivett explains that the main reason for keeping potentially classified government-generated evidence in the defense review process is the “hope to get the case done during the lives of living men.” Given the volume and relative importance of these documents, it wasn’t worth the government’s time to do a document-by-document classification review on the defense’s behalf. He also hopes to make it clear to Judge Pohl in a classified session on 2/19 that all of this information is at least SECRET/NOFORN, and that the government had a valid reason for treating this subset of information differently from other classified material.

Defense counsel Cheryl Bormann thinks that the prosecution should take on this burden through the government’s review process in the interest of getting the case done during “the [life] of this living woman.” To her, the sheer length of time it takes to get a ‘pending classification review’ document through the defense’s review pipeline is inexplicable. Moreover, this situation has hobbled her team’s effectiveness since some members only have Secret clearance and therefore cannot look at the ‘pending’ documents, which are tentatively handled as Top Secret information. By way of example, one of her consultants has had a Top Secret clearance application pending for more than two years.

Connell also jumps in on the issue of clearance delays, first noting that attorneys and paralegals typically spend only 2-3 years on the defense team. If they only have Secret clearance when they show up, and it takes up to a year for them to get Top Secret, they are unable to fully participate in the case for a significant portion of their time on assignment for the defense.

Judge Pohl next turns to defense counsel Walter Ruiz. Ruiz takes issue with the prosecution’s argument that all of the information in these documents is at least SECRET/NOFORN, if not Top Secret. He says “[he] rarely does this,” but is confident enough in his position to say that he will “conclusively rebut” this prosecution argument during the next closed session. As a quick preview, he notes that “yesterday [the prosecution] said they had not looked at every page of this discovery before they made a determination that in fact it would all be at least Secret. I don’t know how they can do that.”

More to follow on the ‘pending classification review’ issue during the closed session tomorrow.

Now it’s time for AE397. Judge Pohl looks to General Martins to introduce the prosecution’s proposal to consolidate various defense discovery motions related to the RDI program.

General Martins begins by calling Judge Pohl’s attention to the ‘ten-category framework’ from his 2014 discovery order in United States v. al Nashiri. Like the current defendants, al Nashiri moved to compel production of information related to his detention in the RDI program. Judge Pohl’s framework provided for defense discovery of government records and documents containing ten separate categories of information. The categories included information related to the conditions of the defendant’s confinement, documentation of requests and decisions to employ enhanced interrogation techniques, statements and records made by the interrogators, the identities of people who had substantial contact with the defendants, and the like.

According to General Martins, the defense lawyers have requested documents in accordance with the ten category framework, but are also maintaining numerous other requests for information with the RDI program, many of which are “overbroad” and “far afield from any real issue” in the upcoming trial. He further notes that the prosecution has already provided vast quantities of information to the defense in satisfaction of its criminal discovery obligations.

General Martins next explains that the prosecution’s proposed plan has four essential components. First, the prosecution will provide information that is related to the defendants’ experience within the RDI program, based on the ten-category framework from al Nashiri. When the information is classified, the prosecution will first provide it to Judge Pohl with proposed unclassified substitutions. If Judge Pohl finds the substitutions adequate, the defense gets the information; if not, the prosecution and judge revisit the adequacy of substitutions later on, in an iterative process that takes months.

Second -- the government has invoked the classified information privilege for certain documents pursuant to MCRE 505(f) and 10 U.S.C. § 949. For these documents, the standard of discoverability is not mere relevance, but rather whether the information is “noncumulative, relevant, and helpful to a legally cognizable defense rebuttal of the prosecution’s case or to sentencing.”

Third -- the prosecution expects to be guided by the relevance rationales proffered by the defense counsel. These include relevance concerning the sentencing phase in a capital prosecution, to include mitigation evidence; relevance concerning the threat posed by the defendant if sentenced to confinement instead of death; relevance concerning a defense motion for appropriate relief due to outrageous government conduct; and relevance regarding the reduced reliability of statements made by the defendants after being subjected to EITs. Here, General Martins reiterates that the prosecution does not intend to introduce any statement from the accused that was actually taken during administration of EITs.

Fourth, and finally -- the government will seek to use substitutions, summaries, and other available relief in order to protect classified information, while still allowing the defendant substantially the same ability to make his defense.

At this point, Judge Pohl has a few questions. He wants to know about the procedures by which information delivered to an accused individual’s defense team will be shared with the other defendants. He learns that subject to clearance limitations (and much of the potential evidence here is now unclassified), information that goes to one defendant’s legal team can properly be shared with the other defense teams.

Judge Pohl also asks how the process works for handling additional defense discovery requests. It’s basically what he expected. The defense gives the prosecution a discovery request, and the prosecution sees if it is discoverable within the ten-category framework. If the government doesn’t think the request fits within the framework, or that the request is overbroad, it responds and the defense moves Judge Pohl to compel. In addition, General Martins makes clear that defense discovery requests need to “[have] some specificity” in order for the government to undertake a reasonable search for documents.

After a fifteen-minute break, it’s Mr. Connell’s turn to respond. He first notes that the government’s initial proposals on limiting defense discovery to classified RDI-related materials were far more aggressive than what the prosecution described in the hearing today. Mr. Connell is fine with that: “You know, people change their position . . . . A foolish consistency is the hobgoblin of little minds.” In contrast with the government’s earlier proposals, the process discussed by the commission and prosecution today makes perfect sense, at least as a general matter.

He also commends the prosecution for producing an electronic file and 891 pages of discovery related to the RDI Program already. This includes unclassified summaries of intelligence reports based on the defendants’ statements, summaries of medical records, and photographs taken of detainees when they were in the RDI program.

Mr. Connell, however, does take issue with the government’s “backtracking” from the true al Nashiri framework, especially with respect to information related to the identities of doctors, guards, and interrogators in the program. Instead of providing this information subject to the framework, he thinks the government is offering to contact the individuals and ask them if they would like to be interviewed by the defense. Mr. Connell submits, “with all due respect, [that] these two are not equivalent.” After a brief discussion with General Martins, it emerges that the prosecution will submit actual information to satisfy its framework obligation to provide the identities of relevant personnel, and not just contact those personnel regarding defense interviews.

The next issue concerns the discovery of RDI-related information that is cumulative. As the prosecution previously mentioned, the applicable legal standard for discoverable classified information comes from United States v. Yunis. Yunis requires production of information that is “noncumulative, relevant, and helpful to a legally cognizable defense rebuttal of the prosecution’s case or to sentencing.” Of course, this interacts with the more broadly applicable standard from Brady, which generally requires disclosure when information is favorable or exculpatory, and material to the defense.

Mr. Connell uses a Powerpoint diagram to explain how a classified document that would be discoverable under Brady, but for its classification, can potentially be withheld from the defense if it is cumulative. In other words, an issue will arise when the defense requests information that is material and exculpatory, but the government believes is cumulative. Unsurprisingly, Mr. Connell’s definition of cumulative is substantially different from the government’s definition. And while the prosecution, who possesses the information, must make the initial call on producing documents for discovery, the court makes the ultimate determination as to whether information is cumulative.

Mr. Connell illustrates this point with an example. A request for all copies of a document that was sent to multiple individuals might be considered cumulative, but in certain cases, a defense theory depends on knowing who received a certain document (say, the August 2002 torture memo that may or may not have been read by the CIA general counsel) and when they received it. Mr. Connell explains that if additional copies of a document contain information on how the document was distributed, those copies would clearly not be cumulative. He asks Judge Pohl to keep this in mind as he reviews the government’s submissions, and reiterates that it is the judge, not the prosecution, who makes the decision on what is cumulative.

Mr. Connell moves on to the subject of the Senate Select Committee on Intelligence (SSCI) report on the RDI program. It seems the government has stipulated that the facts contained within the SSCI report’s executive summary occurred. General Martins jumps in to ensure it is clear that the stipulations are to the underlying facts, not to the SSCI’s conclusions (such as their conclusion that CIA intentionally misled congress about the use of certain EITs.)

Judge Pohl now turns to David Nevin, the attorney for Khalid Sheik Mohammed. Nevin is in basic agreement with Mr. Connell but just wants to make a few additional points. First, he emphasizes that the Brady doctrine doesn’t contain any exceptions for information that is cumulative, so to the extent the government thinks it can withhold a cumulative document that is exculpatory and material, the government is wrong. Second, he makes clear that the defendants are entitled to all of their prior statements that the government has in its possession. Third, he notes that much of the information related to the RDI program has now been declassified under superseding classification guidance issued by CIA last year---Judge Pohl swats this last point down, saying that “[he’s] been doing this too long” to believe that the new classification guidance simplified the process in any material way.

Cheryl Bormann now adds that she would like the unclassified substitutes and redacted documents that are given to the defense to indicate whether they were reviewed by Judge Pohl. Judge Pohl doesn’t think this is viable and instead directs the defense to first ask the prosecution if they have questions on redactions, and to take it up with him if they are unsatisfied with the prosecution’s response. Ms. Bormann then argues that the ten-category framework “may be a mistake,” and that its use could cause the government to overlook information that is properly discoverable. Judge Pohl counters that the framework is merely a starting point, and that the defense is free to request additional information at any time.

And with that, it’s time for lunch. The commission recesses until 1:35.

When everyone returns, Ms. Bormann gets back to the issue of cumulative discovery, specifically as it relates to a potential defense argument of outrageous government misconduct. Recalling her public defender days, she explains how if a defendant is accused of shooting someone in front of twelve witnesses, the testimony of eleven of those people could potentially be characterized as ‘cumulative’ of the first witness’s testimony. Of course that would be incorrect, though, since the weight someone attributes to evidence of an event is naturally correlated to the number of people who saw it. Before she can continue with this metaphor, Judge Pohl interrupts and asks, “Does the government misconduct become more outrageous the more people that know about it?” To which Ms. Bormann replies, “It depends on what it is.” If a large number of people know of war crimes committed by CIA and DOD, and those people “stretch into various components of the U.S. government, I would say that makes it more outrageous.”

Ms. Bormann later asserts that this is by far the most restrictive discovery regime she has ever seen in her career, and that in her previous defense experience (notwithstanding a couple instances of prosecutorial misconduct) she had far more access to the government’s information. She strikes a more conciliatory tone in her conclusion, though, and reiterates that she is essentially asking that Judge Pohl take a more active role in reviewing the government’s assertions that information is cumulative. Given the nature of the case and defense theories, the cumulative nature of a certain type of information might actually make that information quite helpful to the defendant.

Defense attorney James Harrington briefly comments on the fact that Brady requires production of not only information that is exculpatory, but also evidence that is favorable to the accused. Given the nature of this case, in particular its dependence on classified information, he thinks it is extraordinarily important for the trial court to supervise the government’s performance of its Brady obligations.

Now it’s time to get into the details of the numerous discovery motions the defense filed concerning the RDI program. The prosecution has provided a detailed spreadsheet listing the various motions and their current status. Mr. Connell’s motion AE112 is first---he requested information related to the Bush White House’s analysis of its legal authority to conduct the RDI program, OLC’s analysis concerning RDI, and the information CIA provided to OLC about the RDI program. Some of this information has already been disclosed in redacted form due to FOIA requests, but the government is invoking the classified information privilege to protect much of the remainder. General Martins thinks he can get the unredacted originals in time for the classified session on 2/19, so a ruling on AE112 is deferred for the moment. The same is true for AE114 and AE190, and AE194 had already been conceded by the prosecution.

That brings us to AE195, the defense motion to compel production of communications between the government and the makers of the film Zero Dark Thirty. As it happens, the CIA gave Kathryn Bigelow and Mark Boal, respectively the film’s director and writer, extensive access to CIA facilities and personnel to assist in the development of Zero. According to Mr. Connell, the CIA did this to counteract the negative publicity associated with the SSCI investigation of the RDI program. CIA also allegedly violated ethics rules in granting the filmmakers such access, prompting investigations by the CIA Inspector General.

Mr. Connell is interested in communications related to unnamed CIA Officers A and B, who he believes to be the inspiration for Zero’s main characters, Dan and Maya. He plays Judge Pohl a few clips from the movie, where Dan and Maya interrogate and waterboard the character Ammar, clearly inspired by Mr. Connell’s client al Baluchi. According to Connell, the movie’s content suggests extensive contact between the filmmakers and CIA officers---where else could they have gotten the ideas for interrogation techniques in the movie that were identical to the ones that al Baluchi suffered in real life? The movie’s content also suggests the CIA gave the filmmakers certain information well before it was released to the public. For instance, the movie suggests that the use of EITs on al Baluchi led him to reveal the existence of bin Laden’s courier, Abu al-Kuwaiti. Zero came out in 2012, two years before the CIA first made this same assertion publicly, in a fact sheet responding to the SSCI report.

Mr. Connell concludes by noting that his request is narrowly tailored and certain to lead to the communications he is seeking. He knows the CIA has at least 400 responsive documents from reviewing a heavily redacted copy of the CIA’s Inspector General report. In response, the government says they have reviewed these documents, and that they do not contain any responsive communications between the filmmakers and CIA officers. Thoroughly nonplussed, Judge Pohl eventually decides to take a break from this prosecution-defense “tennis match” and calls the commission into recess at 3:35 pm.

Judge Pohl calls the commission back into session half an hour later. He’s had a chance to review AE195 and its attachments, and focuses his questions back on Mr. Connell. After Judge Pohl gets some additional details on the scope of the defense request, Mr. Nevin makes an argument on Mr. Connell’s behalf since his client was depicted in the movie as well. Nevin takes issue with the fact that Zero potentially tainted the commission’s jury pool, and perhaps even members of the “political class” who ultimately control the commission’s operations. Furthermore, he has a hard time understanding how CIA was willing to provide its most closely guarded secrets to Hollywood filmmakers, but not to the defendants in this case.

Now Judge Pohl turns his attention to prosecutor Jeffrey Groharing. Mr. Groharing says that the emails the defense wants are not communications between CIA and the filmmakers. Rather, they are internal communications among CIA personnel about the filmmakers and Zero Dark Thirty, so they fall outside the scope of the discovery request.

Judge Pohl spends the remainder of the afternoon session managing the schedule for the next slate of discovery motions related to the RDI program. He then calls the commission into recess at 1648, with the classified session to follow the next day.