8/20 Motions Session #9: On the Accused's Access To Classified Material

The day’s final protective order motion: AE013JJ, Connell’s motion to amend the order, so as to permit an accused to participate in his own defense.  By this, Connell refers to the extent to which an accused can access certain classified material.  Already, the protective order recognizes that the accused may see two narrow kinds of classified information: first, information that they themselves provided; and second, discovery marked by the prosecution, as okay to release to detainees.  With AE013JJ, Al-Baluchi’s counsel proposes to add three things to that list: evidence, proceedings, and pleadings.

The first, evidence, is required by statute: under the Military Commissions Act, Section 949p-1(b), all evidence admitted pursuant to rule, procedure or court order must be provided to the accused personally---and whether before or during trial, in Connell’s view.  The court smells issues similar to those resolved, already, with respect to the accused’s exclusion from closed pretrial sessions; naturally the accused doesn’t get to handle the classified proof, if they’ve been precluded from attending the hearings where the proof is admitted?  No, explains Connell, not under the statute.  After all, the MCA took into account Hamdan I, which stressed the accused’s access to evidence under Common Article 3 to the Geneva Conventions.

Connell quickly moves to proceedings---but then moves away just as quickly, as he candidly acknowledges that this bid is foreclosed by the court’s decisions on exclusion.

That leaves pleadings.  There’s a lot of classified pleadings in this case, Connell says; the accused don’t know about them, though, and thus remain quite in the dark about developments in the litigation. Bolstering his point, Connell displays a demonstrative.  It tallies instances in federal courts when defendants were given access to classified discovery.  (The case captions are familiar:  Drake, Rosen, Kiriakou, Poindexter and Musa are there, among others.)  Judge Pohl returns to Hamdan, and seems incredulous: how could a Supreme Court case give a commission accused greater discovery rights than a defendant in a civilian setting?  The difference, for Connell, comes down to Common Article 3.  Only commissions must comply with that, he says, before returning to his list of classified discovery cases.  The lawyer underscores that his is not any hypothetical problem: Al-Baluchi has not, for example, ever seen a memorandum describing his alleged statements to FBI clean team personnel---the reason being that, of course, the memorandum is “classified.”  This last part visibly surprises Judge Pohl.

It falls to the prosecutor LT Kiersten Korczynski to rebut Connell’s claims.  She begins with the defense’s citation to authority---which is way off the mark.  A defendant in a terrorism case has never been allowed to see classified material, she argues.  Musa is a case in point: there, the defendant was not given classified access, whatever the language in the case’s protective order might have suggested.  As to the memorandum containing Al-Baluchi’s statements, this contains other classified material, and is still undergoing classification review.  But the government isn’t hiding anything, and the prosecutor doesn’t deny her side’s obligation to turn over relevant and necessary discovery material, of course.  The lawyer lastly returns to her central theme and cites the Second Circuit’s In Re Terrorist Bombings case---where the defendants didn’t see even a peep of secret stuff.

The defense’s reigning Protective Order Chieftain, J. Connell III, returns and addresses the memorandum containing his client’s alleged statements to the FBI.  According to the lawyer, redacted and unredacted versions of the document were marked specifically to prevent Al-Baluchi from reviewing things he reportedly told to the FBI in 2007.  And Musa was a terrorism case, no matter what the government might think---and it contemplates the defendant’s access to classified evidence.  Indeed, the government hasn’t put forth any proof that Mr. Musa didn’t get his hands on classified discovery. One last try on the MCA: does this really, really allow the accused to access classified discovery?  When they are so authorized, answers Connell, as the accused are when evidence is admitted against them.  A bit more, and Connell tags in David Nevin.

The latter emphasizes the relevant MCA provision, 949p-1(b), regarding “access to evidence.”  Its text says evidence admitted pursuant to any rule, procedure or order shall be provided to the accused, full stop; there’s no limitation about when (before or during trial) that can take place.  And nothing limits the disclosure provision to unclassified material, either.  This two-part view troubles the court, as evidence could be “admitted” in many circumstances, and thus trigger handoff to the accused automatically.  The attorney nevertheless hews closely to the statutory language, while noting, as always, that this is a death case---where the stakes are highest.  Nevin at last comes to torture, a crime under U.S. law and one committed against his client.  Evidence of that mistreatment can’t be shielded here, simply by insisting that it is classified---that’s fundamentally unfair in a capital case. Every single shred of torture evidence should find its way into KSM’s hands, Nevin says.

A note from Cheryl Bormann: we don’t further interpret statutes when their plain meaning is clear.  The meaning of 949p-1(b) is as clear as can be, and will matter a lot for our forthcoming motion to bar the use of any statements uttered by Bormann’s client, after he was subjected to harsh interrogation.  That proceeding will absolutely call for the “admission” of classified RDI evidence.  Certainly that’s the predicate for any determination about whether a statement is tainted by misconduct or not.