6/1 Session: Too Much Cancer, Not Enough Communication

Pre-trial proceedings in the military commission case against the alleged masterminds of the September 11^th attacks resume Wednesday morning, with all attorneys present but none of the accused in attendance. To start, a U.S. major testifies that he advised all five of the accused of their rights to attend that morning and all knowingly waived their right to be present at the hearing.

Military Judge James Pohl begins by indicating that he will not decide on defense counsel’s motion for an expert consultant to evaluate the ongoing concern about possible carcinogenic toxicity at Guantanamo. Mention of this issue, however, causes both defense counsel and trial counsel to seek clarification on where this issue is going from here.

As background: the Navy investigated a possible link between time spent at the Guantanamo Bay naval base and an increased likelihood of developing cancer. In August 2015, the Navy conducted tests and initially declared the base safe. However, in February of this year, the Navy revealed that lab results had come back showing 16 toxins, mostly carcinogenic, exceeding the screening levels. Uncertainty over the possible health hazards of living and working at the base deepened when the Navy did not clarify what the appropriate standard to measure toxicity levels is at Guantanamo, since it is not specifically classified as an expeditionary facility, a permanent facility, an occupational environment, or a residential environment. An April 2016 report further revealed that in 60 samples of soil taken from Camp Justice and tested for benzo(a)pyrene—a highly carcinogenic material that is linked to scrotal cancer—78 percent of the samples were positive for the carcinogen. It is unclear where these samples were taken from at the camp, but presumably the results indicate that 78 percent of the entire facility is hazardous.

Defense counsel has submitted a motion to bring in an outside expert to explain these findings and assess their health implications; to provide an independent assessment of the underlying data; and to evaluate the trustworthiness and accuracy of the report. In support of this motion, defense counsels (through Michael Schwartz, counsel for Walid bin Attash) argue that the uncertainty over the safety of partaking in proceedings makes the defense counsels uncomfortable continuing or returning in July with their staffs. Schwartz insists that this issue is and will continue to be an unnecessary distraction until more scientific testing is conducted or the proceedings are moved to a different location, since the area on which the pre-trial hearings are being held apparently sits atop an abandoned air strip that may have been used for dumping fuel for decades.

The very technical point of disagreement between the government and defense counsel on this issue concerns whether the defense’s motion is ripe for oral argument this Friday, or not for another week. The argument centers on when the defense’s motion was accepted for filing and on whether supplements to that filing restarted the clock for the government to respond. Defense counsel contends the motion was filed on May 19; the government argues that a supplement filed on May 27 reset the clock for it to respond; and the chief clerk recorded the filing as accepted on May 20 after delaying filing as a consequence of an error on the cover page (an “error” which, defense counsel notes, the clerk did not consider to be an error when the government submitted a motion containing the same error on its cover page a few days later). Judge Pohl accepts the clerk’s record and decides to give the government the full briefing schedule. While he acknowledges that this is an important issue, he also recognizes the countervailing importance of both sides having a full opportunity to address the issue.

Family Communications: Required? Material? Or Irrelevant?

Moving on to AE 360—a discovery motion by the defense requesting information related to a December 7, 2014 tape recording that bin Attash made for the International Committee of the Red Cross to deliver to his family in Saudi Arabia. Bin Attash is seeking production of the video as mitigating evidence of his character and his demeanor in confinement. Defense counsel argues that the government is required to turn the tape over for the following four reasons: (1) denying communication between the accused and his family amounts to illegal pretrial punishment under international law and DoD Directive 2310.01E, which mandates appropriate contacts with the outside world for detainees; (2) the lack of communication hinders the defense’s ability to gather mitigating information from bin Attash’s family by undermining defense counsel’s credibility and competency in the eyes of his family members; (3) the impact of nearly four years of incommunicado detention combined with the continued inability to communicate with his family jeopardizes bin Attash’s ability to meaningfully and voluntarily participate in his defense; (4) failure to produce the tape violates M.C.R.E. 304(c)(1) and R.M.C. 701(c)(3), which require the government to disclose the contents of all relevant statements made or adopted by the accused and are material to the preparation of the defense or material or intended for use by the trial counsel in the case in chief.

Schwartz notes too that the tape in question was never sent to the bin Attash family. During his 13-years of detention, bin Attash has only been permitted to send a single, short recorded video statement to his family.

The government responds that the video recording is not discoverable, since bin Attash recorded it by his own volition and not at the direction of the U.S. Government. It should, therefore, be considered non-legal mail, which the government claims it has no duty to review and disclose to the defense, especially when the prosecution has no intention of using it in its case in chief. Judge Pohl suggests that the government’s position is nonsensical, however, seeing as there cannot be any security or force protection issues with producing statements to the accused that the accused himself made. In response, the government pivots to argue instead that the motion should be denied because: (1) defense counsel may gain access to the contents of the tape by asking bin Attash directly what he said; (2) the contents of the tape are irrelevant to determining conditions of confinement—only whether the tape was delivered or not goes to that issue; and (3) the government can’t control the contents of the tape once it has been released to the defense. Schwartz rises to counter this concern, however, by assuring the commission that the motion is simply to possess the recording, not to deliver it to the bin Attash family in Saudi Arabia.

Defense counsel James Connell, lawyer for Ammar al Baluchi, stands to express his opinion that government’s reading of R.M.C. 701 “reaches a new low in its interpretation for the rules of commission.” Connell reminds the commission that 701(c)(3) codifies the rule that is the law in every court in America that the government must turn over all of a defendant's statements, whether made in jailhouse recordings or otherwise. As there is no source and method issue or classification problem implicated by this recording, it must be turned over to the defense. The government is bound to produce all of the statements made by the accused in its possession, as the statements of a detainee-defendant defending against capital charges are almost always relevant to his defense.

With this, the commission takes a break.

Protecting the Voices on Flight 93

All parties return from a short recess, although the detainees remain absent. The government, through trial counsel Edward Ryan, seeks a protective order to safeguard information contained in a cockpit voice recording from United Flight 93 that the government intends to introduce at trial. The recording from Flight 93 captures the hijackers murdering the crew in the cockpit, the period of time that the plane is being flown by the hijackers, and the struggle by the passengers to attempt to take back the plane before it crashes into a field in Pennsylvania. The recording captures many of the victims’ voices, and Congress has enacted a statute mandating that these voices be safeguarded in the course of using such recordings in a courtroom.

Defense counsel all agree that the recording contains sensitive discovery and should be subject to a protective order, but Connell argues that the government’s proposed order is overbroad. The order, as written, touches on closing the trial process, which requires an 806 hearing and Press Enterprise analysis. He proposes that the protective order be cabined to protect only the discovery process and to leave the question of how to handle the recording at trial for later analysis under constitutional and military commission authorities. There is no objection by the government to rewording the order in this way.

Army Major Matthew Seeger, another defense counsel for bin Attash, voices an objection to any form of broad protective order. He argues that such an order would impede the defense’s ability to assess the admissibility of the recording, noting that the voice recorder and recording have thus far been subjected to very little forensic and judicial scrutiny. He also raises the issue that various versions of the transcript of the recording have been publically available for years, leaving little written material to protect.

Familiar Ground: Geneva’s Mandate on Family Communications in Guantanamo

The commission now moves on to considering defense motions 321 and 399, seeking increased and near-real-time communication between the accused and their family members. Connell has essentially two legal arguments for why Judge Pohl is empowered to order greater communication and why such communication is required by law.

The first argument winds its way through much of the landscape of international law to ultimately arrive at the conclusion that the accused are protected by the Geneva Conventions and entitled under Geneva Conventions III and IV to familial communications and visits.

Connell’s argument runs like this: the accused are in a law of war tribunal and are being deprived of their liberty through the operation of the law of war. Neither the military commission nor a judge ordered the defendants detained; rather, they were captured and are being held by the authority vested to the U.S. military under the law of war. The law of war, however, is a package deal: it operates in its entirety or not at all. The law permitting the detention of combatants during war also limits and determines the conditions of that detention. This law of detention operates in Guantanamo and binds the United States because “in many ways, the law of war is the law of the United States.” Connell goes on to argue that this declaration applies in the context of detaining alien unlawful enemy combatants in Guantanamo.

First, Connell explains that the United States has a “hybrid system” of dealing with international law—essentially, the Supremacy Clause and various legal doctrines (specifically, the self-execution doctrine, the last-in-time rule, and the Charming Betsy canon) operate to domesticize international law principles. Under these guiding legal principles, international human rights law complements the law of war and is binding on the United States, insofar as it does not contradict domestic law or international humanitarian law. In support of this legal conclusion, Connell reminds the tribunal that the United States officially adopted this very conclusion in November 2014, when the State Department announced that the law of war does not occupy the field during war time, but rather human rights law, and particularly the Convention Against Torture, continues to operate and bind nations while conducting hostilities. Under IHRL, the detainees must be treated humanely and given sufficient access to the outside world.

If IHL applies in Guantanamo, the next question is which provisions of this body of law apply to these defendants; or put differently, what is the status of these detainees under international law? Article 5 of Geneva Convention III and Army Regulation 190-8, Section 1-6.a state that a detainee is to be considered a prisoner of war under Geneva Convention III until a competent tribunal has determined otherwise. Additionally, 10 U.S.C. 948b(e) states that a prisoner of war is presumed not to be an alien unlawful enemy belligerent until a competent tribunal determines otherwise. No tribunal has, thus far, determined the accused to be an AUEB. Connell submits that a tribunal should determine that al Baluchi specifically is a protected person under Geneva Convention IV.

Moreover, Article 2 of Geneva Conventions III and IV provides that the Conventions apply when there is partial or total occupation of territory of a high-contracting party, like Cuba, even if the occupation meets with no armed resistance. This situation describes Guantanamo. The Supreme Court stated as much when it conditioned the extension of constitutional rights to Guantanamo Bay in Boumediene v. Bush on the de facto occupation and sovereignty of the U.S. over that area, and when the Court described the status of Guantanamo Bay during the Spanish American War as an “occupation” of the area by the U.S. Marines. That occupation was never relinquished, and was regularized in a 1903 treaty between the United States and Cuba that specifically uses the word occupy.

So, if both Geneva Conventions III and IV apply, because of the status of the accused and the nature of the conflict, then Article 71 of Geneva Convention III and Article 116 of Geneva Convention IV also apply—and provide a clear and absolute answer to the question before the military commission about whether the detainees are legally entitled to regularly communicate and visit with family members.

Connell has a backup argument if Judge Pohl is unwilling to rule that the Geneva Conventions apply because the U.S. is “occupying” Guantanamo: that is, the same international law principles codified in the Geneva Conventions have been incorporated into U.S. law through executive orders, congressional statutes, and Department of Defense official policies. Connell argues that Judge Pohl has the legal authority to oversee the conditions of confinement and treatment of the detainees to verify the humane treatment of the accused. This authority derives from the judge’s responsibility to ensure the military commissions proceed and to protect the defendants’ rights.

Judge Pohl is concerned that defense counsel’s theory contains no limiting principle on his authority to regulate all detention conditions, which surely is not within the ambit of the authority of a military commission judge. Connell responds, however, that the judge’s oversight is limited to a review of humane treatment, and does not include detention decisions that do not implicate the humane treatment of a detainee. Connell suggests that Judge Pohl is legally authorized to ensure the humane treatment of the defendants under the Detainee Treatment Act of 2005, which provides that no detainee shall be subject to cruel, inhumane, degrading treatment, or punishment, and under DoD Directive 2310.01E, which requires the humane treatment of all Department of Defense-held prisoners.

Moreover, DoD Directive 2310.01E 3(b)(1)(B) defines what humane treatment includes, and this is the limit the court can set its authority against. That paragraph provides that humane treatment includes appropriate contacts with the outside world, including, where practical, exchange of letters, phone calls, and video telephone conferences with immediate family or next of kin as well as family visits.

With this, the commission stands in recess for the public session to resume in the morning.