7/27 Session: Disastrophy

Pretrial hearings continued last Wednesday morning at Guantanamo Bay in the 9/11 case.

Judge Pohl calls the commission to order with all the defendants present. The prosecutorial personnel have changed significantly enough that Military Commissions Chief Prosecutor Mark Martins re-announces which members of his team are present in the courtroom. There have been no changes for the five separate teams of defense lawyers.

A flurry of motions—233, 313, and 415—are all withdrawn and Judge Pohl off-handedly dubs them “moot.” He quickly gets into a tangle with defense attorney Cheryl Bormann, who objects that motion 415 is not in fact moot, though the government has withdrawn it nonetheless. Unperturbed, Pohl clarifies that he intended “moot” in a more “generic” sense than the legal definition of the term, simply to indicate that “there’s nothing for me to decide.”

The court moves on to motion 306. Defense attorney James Connell objects to the absence of a clear chain of custody for evidence produced by nine particular government searches. “It is virtually impossible for the defense to find out in any way where the evidence was actually collected [and] what happened to it for the first several years … of its existence,” he says. The defense has no information on the chain of custody for the evidence preceding 2009.

In other words, Connell says, “the chain of custody of this evidence is what my six-year old daughter would call a disastrophy.”

The specific chain-of-custody issue turns out to concern photographs of physical evidence provided to the defense teams by the government. The government sent the majority of the photos as PDFs rather than as JPG or RAW files, thereby stripping the photos of their accompanying metadata. Only a few photos included the relevant metadata, which can reveal a number of critical pieces of information, such as when and where the photo was taken or whether the image has been cropped or doctored in any way. According to the defense counsel, U.S. courts have been clear that removing metadata from photographs and other digitalized information denies the opposing party valuable information.

Defense attorney David Nevin adds that if the U.S. government lost the metadata or destroyed it intentionally, this would be another case of evidence destruction--an allegation that has been litigated in other contexts throughout the trial. But Clayton Trivett, speaking for the prosecution, says that the government selectively provided the metadata based on what it believed was discoverable. In the other cases, according to Trivett, the missing metadata held “nothing potentially evidentiary.”

After ascertaining that none of the withheld metadata was classified, Judge Pohl asks Trivett, “Why not just give it to them with the metadata and let them decide whether it’s material or not? How hard is that?” As the judge notes, “Lord knows we have spent a lot of time on . . . these discovery issues.”

Trivett doesn’t know whether there was a reason that the non-salient metadata was withheld, but says he’ll re-examine whether there was a possible government interest in denying it to the defense teams. He reiterates that it is misleading to comparing chain-of-custody cases under domestic law with those originating in Afghanistan or Pakistan under “battlefield conditions”: “the U.S. government established a chain of custody as soon as [it] could.”

At this point, defense counsel Michael Schwartz reminds the court that the defense has motioned for the commission to intervene in the operation of the camp, out of concern that the defendants are being denied the ability to communicate with their family members.

Schwartz urges Judge Pohl to call for two witnesses who can testify to the facts on the ground as to whether Walid Bin Attash has the ability to communicate with his family — a right that, Schwartz says, both those held as law of war detainees and as pretrial defendants in capital cases typically enjoy.

One of the proposed witnesses is a representative from the International Committee of the Red Cross, and Judge Pohl is skeptical as to whether he can compel a witness from the ICRC to appear in court. “I think it’s no different than a court-martial in Germany,” he says. “A judge can’t order a person to come from the States to Germany to testify in a court-martial.”

Schwartz attempts to claim that Guantanamo Bay is part of the United States--citing how U.S. lawyers who forget their passports can still be let into Guantanamo Bay in a way that would never be possible in a foreign country—and that Judge Pohl can accordingly compel a U.S.-based witness to appear in court. But he is unsuccessful, and soon pivots to simply requesting that the commission call for the witnesses to confirm whether there are factual inaccuracies in the government’s account before additional questions of coercion and remedies need to be discussed.

The day’s hearings move back to questions of discovery when defense attorney Sean Gleason points out that a number of incident reports, which were released to the defense in January 2012, were both highly redacted and marked “not releasable” to the detainee. Gleason reminds the court that the prosecution promised in October 2013 to provide a copy that would be releasable to his client, Mustafa al Hawsawi. Yet Hawsawi has still not received the documents. For the prosecution, Robert Swann apologizes for the delay by explaining, “it’s three years old, so it just slipped the radar.”

Next comes a brief argument between Swann and Gleason as to whether the documents earmarked for Hawsawi should include the guard numbers and salient dates. The defense claims this information is necessary for them to have a complete discussion with Hawsawi about any significant incidents that happened during his detention. As Bormann explains to Judge Pohl, the redactions and classifications in the reports the defense has received thus far have made it impossible for the defense to piece together what has happened to their clients during their stints in Guantanamo:

The government says that on a certain date that I can’t tell you about, I can’t even tell you the year, you had an interaction with some guy I can’t name and I can’t describe and I can’t even give you his pseudonym, but maybe you could tell me about that. That’s how the conversation would have to go under the regime we’re practicing under.

Swann responds that according to a MOU signed by defense counsel in September 2015, the defense team will shortly begin to receive wholly unredacted documents. Their clients, on the other hand, will receive redacted copies, which will include the pseudonym numbers of guards. He explains that the dates, on the other hand, may still be redacted in the reports provided to the detainees because their disclosure might tip detainees off regarding the tactics, techniques, and procedures that are used in Guantanamo.

When Judge Pohl pushes Swann by clarifying that the defense lawyers would have access to the dates and guard numbers, but would be disallowed from sharing this information with their clients, Swann responds that the defense could come forward on an ad hoc basis when there are incidents they believe are material to the proceedings. Bormann laments that these are not adequate levels of transparency for a capital punishment case that will likely lead to a guilty verdict for her client, arguing that “everything that pertains to a death sentencing aggravation-mitigation hearing is material to the defense.”

With that, the commission heads into recess. It will reconvene at two in the afternoon for a closed 806 session.