Last Week at the Military Commissions: Administrative Matters and Defense Claims of Unjustified Interference

Last week, the military commission in United States v. Khalid Sheikh Mohammed et al.—relating to five individuals suspected of being involved in the 9/11 terrorist attacks—reconvened for pretrial proceedings after a month-long hiatus. The commission met in open session on Dec. 8, Dec. 10, and Dec. 11, with classified sessions in between. The unclassified portions covered a variety of topics, including the propriety of certain security measures taken by the base guard force; an ongoing dispute over the October 2017 seizure of laptops provided to the defendants to enable their participation in trial preparations; a motion to dismiss brought by two of the five defendants for lack of personal jurisdiction due to the absence of legally-relevant “hostilities” prior to October 2001; and several defense motions to produce witnesses and other discovery materials. The proceedings related to each of those issues, as well as a few others, are summarized below.

Security Measures

Kicking off the Jan. 8 session, the defense team began by protesting the guard force’s use that morning of search procedures that deviated from past practice. They called the shifting protocols part of an ongoing pattern of government conduct designed to disrupt the defense’s ability to participate in the proceedings. First, prior to transporting the defendants to court, the guards conducted a physical search of each defendant that included the groin area, which previously had been off-limits. Defense attorney David Nevin, who represents defendant Khalid Sheikh Mohammed, objected to the groin search on religious and other grounds. He also claimed that the future use of such invasive techniques would deter the defendants from regularly coming to court and therefore unnecessarily interfere with their right to be present. Judge James Pohl, with an assist from the parties on the case citations, noted that the permissibility of groin searches for security reasons had been previously litigated in at least two other cases—United States v. Ghailani and Hatim v. Obama—with favorable outcomes for the government. Still, Pohl instructed government counsel to find out more details on what search method was used that morning, what prompted the change, and whether a groin search fell within standard operating procedures. The defense and prosecution teams told the judge later in the session that resolving the issue would require considering classified information, and further discussion was consequently postponed to the following day’s closed session.

Second, Nevin notified the judge that the guard force demanded to search Nevin’s backpack, in which he carried his legal papers, before allowing him into the judicial facility. Concerned for the privacy of the material, Nevin chose to leave his backpack in his vehicle. Pohl asked government counsel to find out the basis for the heightened scrutiny and directed that Nevin and any other personnel similarly situated be permitted in the meantime to bring their effects into the courtroom. The parties returned to the matter once more before concluding the morning session. According to the government, everyone’s effects were subjected to the same level of scrutiny in order to ensure no contraband items—specifically electronic devices—were brought into the facility; the intent was not to breach the confidentiality of the defense team’s documents. Pohl resolved the issue by getting the government to state on the record that the defense attorneys would be allowed to remove any documents from the bags to be searched and maintain control over them during the inspection.

At the beginning of the Jan. 10 morning session, during which Walid bin Attash was the only detainee present, the parties returned to the detainee body search issue. As usual, a nonparty staff judge advocate (SJA) visited each detainee prior to court to advise him of his right to attend the proceedings and obtain a signed waiver if the detainee chose not to come. This time, when Mohammed and Ramzi bin al-Shibh asked if they would be searched and the SJA affirmed and explained the search procedure, both declined to attend. Mohammed and bin al-Shibh stated that their refusal to attend was voluntary, but in court Nevin questioned whether it could be truly voluntary given the alleged intrusiveness of the Jan. 8 search. Bin Attash spoke up and noted that the search conducted on him that morning was different—presumably a reversion to previous methods—than Monday’s. For the record, Pohl found that the waivers of Mohammed and bin al-Shibh were knowing and voluntary, despite the questions about search procedure. He also declined to issue an interim order directing a change in policy related to the searches, leaving the current scheme in place until the parties litigate the issue in closed session in the coming weeks or months.

Seizure of Defendants’ Laptops and Legal Materials

Another major issue addressed during the Jan. 10 session was the Appellate Exhibit (AE) 530 series of filings, which primarily relate to the October 2017 seizure and forensic examination by the government of laptops previously provided to the defendants to allow them to review discovery materials and other communications from their attorneys. Some aspects of the ongoing investigation are classified and therefore sealed, but the government explained in general terms the motivating security concerns. First, defendant Ammar al-Baluchi (a.k.a. Ali Abdul Aziz Ali) allegedly installed and used a shadow operating system, separate from that which was approved, installed, and monitored by the government, and possibly conveyed to the other defendants instructions for doing the same. Second, the laptops may have been, or could be, altered in such a way as to allow wireless internet access.

All of the defendants objected on the grounds that a search of their laptops would violate attorney-client confidentiality and that the government’s continued withholding of the laptops interferes with the defendants’ right to participate in their defense. The defense also asserted that the government would need to meet at least the probable cause standard, and arguably the crime-fraud standard, before searching the laptops for evidence of some sort of misconduct. The evidence before the court, the defense argued, did not establish probable cause for a search of any laptop other than al-Baluchi’s, and in fact showed that the laptops were incapable of accessing the internet because the wireless cards had been removed. Counsel for Mustafa al-Hawsawi spoke separately on Jan. 8 and Jan. 11 to assert that there is no evidence that al-Hawsawi’s computer was modified in any way or that his possession of it poses any security risk. The counsel asked Pohl to order its immediate relinquishment by the government.

On Jan. 10, chief prosecutor Brig. Gen. Mark Martins asked that Pohl rescind his 2013 order granting the defendants continued computer access, stating that the provision of laptops had been a mistake in the first place. The chief prosecutor contended that, regardless, defendants had proven they could not be trusted to use them in accordance with the conditions set by the court. Pohl redirected discussion towards how to reconcile the government’s security concerns and desire to forensically examine the laptops with the defendants’ concerns about the privacy of the contents. The defense suggested that, if they were to lose on their motion for immediate return of the laptops without any examination, a reasonable compromise might be for Pohl to order a tightly-constrained search conducted by a neutral third party. Resolution of that matter was left for another day.

The court also acknowledged a distinct issue within the AE 530 series that applied only to Mohammed, namely the seizure of physical papers found in Mohammed’s allocated bins. The attorneys for Mohammed said the motion was not yet ready to be argued due to classified information issues. Pohl agreed to postpone until after a hearing for the in camera presentation of such classified information pursuant to Rule 505(h) of the Military Commission Rules of Evidence.

Motion to Dismiss for Lack of Personal Jurisdiction

Also on Jan. 8, Pohl asked for an explanation of defense objections to the government’s motion AE 502JJJ (part of the AE 502 series), which asks that the commission adopt the legal standard articulated by the D.C. Circuit in Bensayah v. Obama for determining whether a person is “part of al Qaeda.” Counsel for al-Hawsawi objected to the motion on procedural grounds, arguing that it constituted an unauthorized supplement to the government’s argument as presented during the December hearings, to which the defense did not have adequate opportunity to respond. If Pohl wanted additional briefing to help him decide on an operating definition of “part of al Qaeda” for AE 502 purposes, the counsel asserted, then the proper procedure would have been to request argument from both parties. The government responded that al-Hawsawi’s challenge to personal jurisdiction was fatally flawed because the arguments presented by the defense ran contrary to well-established precedent and shifted over time, from initially focusing only on the issue of the existence of hostilities to later encompassing broader issues. Pohl decided that he would allow litigation of AE 502JJJ, despite its procedural irregularity, and gave al-Hawsawi two weeks to file a responsive pleading.

That same day, the commission also dealt with defense motion AE 502MM, which relates to Rule 914 of the Rules for Military Commissions (the military equivalent to Jencks) material sought by al-Baluchi. Counsel for al-Baluchi contended that the government adopted too narrow a definition of covered material and failed to produce relevant writings by FBI Special Agents Fitzgerald and Perkins, who testified in December. The government said they believed they had produced all required materials in fulfillment of discovery obligations, but would produce additional documents pursuant to orders from the commission. Pohl told the defense to draft an order specifying the writings sought within two weeks and give it to the government, which would then have two weeks to respond.

On Jan. 10, the parties debated AE 502J and AE 502Y, which are classified filings that list and provide supporting information for potential witnesses from whom al-Baluchi’s team seeks testimony for the personal jurisdiction hearings. The list includes around 150 witness, but the defense has indicated it would be willing to withdraw approximately half of them if the remaining witnesses were produced. The prosecution, however, only agreed to ten witnesses whose testimony they assessed would be pertinent to the intended argument over the commission’s personal jurisdiction over al-Baluchi. An extended discussion then ensued about how the government intended to prove the existence of hostilities on 9/11, the defense’s evidence pointing to a lack of hostilities, and the defense’s requests for additional witnesses and document discovery to support its position. The parties also argued about the defense’s ability to challenge at various stages in the proceedings the prosecution’s use of a statement given by al-Baluchi while in CIA custody in 2007, allegedly involuntarily. Pohl did not resolve the issue.

Witness and Material Production Motions

On the same day, the parties also discussed in-depth AE 523 and AE 524, al-Baluchi’s motions to compel the government to either reveal the identities of CIA employees and contractors referred to pseudonymously in discovery materials or produce the individuals for interview. In September 2017, the prosecution issued a memorandum ordering defense counsel not to approach the witnesses directly and asserting the prosecution’s authority to act as a mandatory intermediary between the defense and government witnesses. The defense objected, saying the directive amounted to an unjustified (and potentially unlawful) prohibition on independent investigation by defense counsel and interfered with the defendants’ right to obtain witnesses and evidence. Over the course of the week, the prosecution defended the propriety and legality of the order, stressing the highly sensitive nature of the CIA personnel’s identities and the need to balance the defense’s interest in finding witnesses with national security interests. Pausing the discussion on Jan. 11, Pohl asked for additional briefing on his authority to compel government witnesses to testify, the applicability of Touhy regulations, and any statutes—e.g. the Intelligence Identities Protection Act and the Classified Information Procedures Act—that may be relevant to the question of whether the defense motions can be granted.

The commission also addressed the status of a number of other motions which remain open and/or would be covered in closed session: the AE 350 series, which relates to a defense motion to depose and acquire information about a former CIA interpreter utilized by bin al-Shibh’s defense team; AE 445, the substance of which is classified; AE 498, which is bin Attash’s motion to compel documents and information regarding the presence and involvement of the National Security Agency at Camp 7; AE 513, which is al-Baluchi’s motion to compel information regarding covert action programs; and discovery requests AE 528 and 538.

Miscellaneous

Finally, on Jan. 10, the commission revisited the AE 373 series, the base motion being a motion to dismiss by al-Baluchi on account of a 2015 government seizure of attorney-client-marked and privileged DVDs. Earlier in the litigation, Pohl granted in part a defense motion to compel discovery of, among other things, the identities of relevant witnesses. Subsequently, in AE 373N, the defense moved to compel production of four witnesses to testify about the seizure. Counsel for al-Baluchi argued that the related ex parte, under seal pleadings in AE 365, were insufficient to give the commission the “real facts about what's on these discs and what they seized and what happened to them afterward.” He asked that the commission therefore grant additional discovery before ruling on the base motion.

Next, counsel for al-Hawsawi raised AE 375, a motion to compel production of original recordings or transcripts of interrogations of the accused by the CIA between 2003 and 2006. The government previously provided summaries of the interrogations and claims there are no underlying original recordings, and at an earlier stage Pohl found them in compliance with their discovery obligations. However, the defense now claims there is new information, to be addressed in closed session, warranting reconsideration of the judge’s previous order.

Following the last open session on that Thursday morning, the commission went into classified session. It will reconvene later in February.