Last Week at the Military Commissions: Bug Sweeps, Defendants’ Sixth Amendment Confrontation Rights, Existence of Pre-9/11 Hostilities and More

In a session cut short by a stay from the Court of Military Commission Review (CMCR), the military commission in United States v. Khalid Sheikh Mohammad, et al. (i.e., the 9/11 military commission) reconvened on March 25-27. See here for previous Lawfare coverage.

The commission worked through a number of pretrial motions, covering technical surveillance countermeasures inspections of attorney-client meeting spaces, classification guidance for the defense teams, the defendants’ Sixth Amendment confrontation rights and substitute evidentiary foundations, evidence of the existence or lack thereof of hostilities between the U.S. and al-Qaeda pre-9/11, and other topics.

March 25

Kicking off the March 25 session, after conducting the rights colloquy with the defendants, military judge Col. Keith Parrella recapped a Rule for Military Commissions (RMC) 802 conference held on March 23, where new defense counsel introduced themselves and the parties discussed the coming week’s agenda. Judge Parella also permitted David Nevin, counsel for Khalid Sheikh Mohammad, to state on the record, but not to argue, his continuing belief that he is burdened by a conflict emanating from the government’s intrusion into the defense counsel’s activity and, for that reason, would not actively participate in this week’s session. Even though the commission had already ruled against the objection, Nevin stated he intended to pursue an extraordinary remedy from the CMCR or the D.C. Circuit or perhaps both. Cheryl Bormann, defense counsel for Walid bin Attash, raised a similar continuing objection related to a 31-page redacted police report resulting from the arrest of two former paralegals on bin Attash’s defense team. Bormann wanted to know whether that report shows if bin Attash’s defense team was also the subject of an investigation. Parrella recognized the objection but told Bormann to make the request related to the police report in writing because the special review team was not present at the hearing.

After the recap, Clayton Trivett, counsel for the government, asked if the commission had ruled on which portions of the discussion of Appellate Exhibits (AE) 600, 601 and 574 would be open and which closed. Judge Parrella responded that he was inclined to keep the AE 574 hearing open but have both parties confine their arguments to unclassified material. James Connell, counsel for Ammar al-Baluchi, noted that because there was classified information related to AE 601, that discussion would need to be bifurcated as well. Connell also noted that the parties were prepared to move forward on the AE 524 series and AE 502CCCC. AE 600 proceedings would be wholly closed.

After the parties took a moment to confer, chief prosecutor Brig. Gen. Mark Martins stated that the technical surveillance countermeasures (TSCM) inspection the commission directed was completed and the parties were prepared to move forward on AE 133RR, a defense request to permanently and verifiably disable audio-monitoring capability in attorney-client meeting rooms. Captain Mark Andreu, counsel for al-Baluchi, recapped the history of the motion series, including the commission’s order in AE 133QQ prohibiting monitoring in attorney-client meeting rooms or, if monitoring was to occur, prior notification to the defense teams. Andreu also discussed AE 133AAA, which called for the military commissions convening authority to make arrangements for a full TSCM inspection of the attorney-client meeting rooms at Guantanamo. Parrella noted that the TSCM inspection was not fully concluded and asked if the defense was still satisfied with the result, such that the AE 133 motion series could be put to rest. Andreu responded that additional sweeps were set to occur, but the sweeps of the attorney-client meeting rooms at Echo II, the subject of this motion, had concluded.

Martins responded that further TSCM sweeps were unnecessary because the joint task force (JTF) had operated in good faith to facilitate attorney-client communications and the command had self-reported the few genuine problems and worked to remediate those. Martins also argued that there remained no showing of any audio monitoring of the accused in confidential meetings with their attorneys, nor any attempt to mislead defense counsel with regard to monitoring capabilities, and that the prosecution had never been made privy to any confidential defense information.

The judge asked why Martins seemed to be arguing against a proposal both the government and the defense originally agreed upon. Martins replied that, because the order had not yet been written, he needed to know the details to ensure the request would not place an undue burden on the JTF. The government was also concerned about the standard that was being applied, namely that the defense counsel know, with certainty, that they are not being monitored. The standard should instead be that the command was taking reasonable efforts to ensure that attorney-client communications were confidential. Parrella said he viewed the defense’s proposed order not as calling on the JTF to do anything new in advance of attorney-client meetings but, rather, maintaining the current state of affairs as the standard operating procedure. He then directed Andreu to have an agreed-upon draft order sent to the court by April 1.

Next on the docket was AE 118, a motion to abate the proceedings until the security structure ordered by the commission in protective order #1 and its various amendments was in place. Connell noted that the only remaining issue was that of classification authority and guidance, and the defense teams’ inability to determine which of their documents were classified. Connell said that, while they could consult the defense information security officers (DISOs), neither he nor they had the original security classification guide and the government provided only summaries or excerpts of the guide. This adversely affected the defense teams in three ways: First, the defense lacks clear guidance on whether the material they write is classified or not; second, the lack of a security classification guide leads to occasional improper disclosure of material later determined to be classified; third, not knowing the boundaries between classified and unclassified information has a chilling effect on the defense’s advocacy because they do not use information they think might be classified or build arguments they are concerned might rest heavily on classified information. Connell therefore requested that the commission abate proceedings until a security classification guide was procured for the defense teams.

Robert Swann responded on behalf of the government, noting that the prior military judge had rejected such a request and that the government had provided sufficient classification guidance to the defense on a number of occasions. Judge Parrella asked if the status quo process took too much time, to which Swann responded that there has been only one instance where there has been extreme delay and that was due to a defense request that the government review 10,000 documents. Swann added that most of the originally classified information has since been declassified and the remaining classified material will never be declassified, so there is no need for the defense to do classification or declassification on its own. However, if there was any further reason to provide a security classification guide to the defense, it would first have to go through a screening process wherein the judge would determine which parts were relevant and material to the defense. Connell replied that the holder of classified evidence has a responsibility to determine the need to know of those to whom he or she would disclose classified information, and that additional security guides beyond those excerpts already provided by the government would be helpful to the defense teams and their DISOs. Further discussion of the matter was then reserved for closed session.

After a brief recess, bin Attash informed the judge that he and his attorneys had resolved a long-standing dispute between them over trial strategy and that bin Attash would now accept his lawyers at the defense table with him.

Edward Ryan, representing the government, started arguments on AE 614, a prosecution motion to compel notice from the defense of their intent to introduce expert mental health evidence by June 1. The government maintained that it relies on RMC 701(g)(2), which states “the defense shall notify the trial counsel before the beginning of trial on the merits of its intent to ... introduce expert testimony as to the accused mental condition.” The government requested the name and qualifications of the defense expert, that the expert provide an opinion based on a review of the record as opposed to a personal examination, a description of the general nature of the testing the expert has completed or will complete, and a description of the general nature of the expert’s proposed testimony. Ryan argued that this notice would allow the prosecution to marshal its own experts to testify in rebuttal and noted that the fight over the notice was primarily about timing and the defense’s stance that they could hold back notice at their discretion. Ryan added that the five defendants’ claim that they have suffered physical, mental, and emotional damage from the interrogation techniques used in the CIA’s Rendition, Detention, and Interrogation (RDI) program requires that the defendants’ expert witnesses review a significant amount of classified material. Because of the substantial logistical requirements related to clearing individuals from outside the trial teams to review and understand this material, it would take a significant amount of time to prepare to litigate. The government suggested June 1 as an appropriate date for notice from the defense teams given the current timetable and movement toward trial.

Connell responded that the plain meaning of RMC 701(g)(2) requires notice of intent to introduce expert testimony as to the accused’s mental condition and the defense should provide notice once the preparation of that testimony is complete. Connell stated that the defense team has worked hard to prepare and is not leveraging the text of the rule to obtain a tactical advantage. And regardless, he said, the rule is clear that only a minimal amount of notice to the government is required. He further noted that the CMCR has consistently held that a commission cannot impose more stringent rules than those imposed by the Rules for Military Commissions prescribed by the secretary of defense, and that in the rules and precedent there is no basis for the government’s request for a detailed, far-in-advance notice of intent to introduce expert mental health testimony. Connell closed by emphasizing that, while he believes the commission might have discretion with respect to the timing of the notice, he does not believe it has discretion to set the scope of the notice. Only a simple form of notice is required.

Walter Ruiz, counsel for Mustafa al-Hawsawi, generally concurred with Connell’s arguments and added that the prosecution has not considered how difficult it has been for the defense to obtain al-Hawsawi’s complete medical records. Ruiz stressed that litigation relating to the release of the defendants’ medical records is ongoing and, as a result, a defined timeline for notice is not appropriate. Ruiz stressed that the defense will provide the prosecution notice in accordance with the requirements of the rule and any dictates of the court but that the defense does not have the requisite information to provide proper notice at this point. Additionally, it remains unclear when the parties will move to trial, given the complexity of the case and the numerous pretrial matters yet to be resolved.

Ryan countered that this specific issue could be treated as a stand-alone and resolved without setting a trial date. Judge Parrella concluded discussion on AE 614 and called a brief recess.

After the recess, Connell presented argument on AE 601, a defense motion to dismiss or suppress evidence of telephone calls involving Mohammad and three co-defendants made before and shortly after the events of September 11, 2001. The defense challenges this evidence on Confrontation Clause grounds, as the government refuses to reveal information related to the source or method of acquisition of the calls and thereby lay the foundation for their admittance at trial, and the defense does not have the ability to cross-examine witnesses related to the acquisition of the calls. The commission rejected a prior motion to suppress the evidence, ruling that the government could use a substitute evidentiary foundation to protect classified sources and methods. But Connell maintained that the use of a substitute evidentiary foundation runs against the Supreme Court’s ruling in Crawford v. Washington that the reliability of evidence must be subject to testing by cross-examination. Connell argued that the Supreme Court in Boumediene v. Bush held that Guantanamo Bay was de facto part of U.S. territory, and accordingly the defendants should have recourse to Sixth Amendment remedies as if they were being held and tried in the United States.

But the commission did not even need to reach the constitutional question, Connell said, because 10 U.S.C. § 949p-6(c)(2)(B)(ii) states that a commission judge may permit a substitute evidentiary foundation only when doing so is consistent with affording the accused a fair trial. Connell proceeded to look at the government’s proposed substitutions and argued that two statements in the proposed substitution—that the government acquired the telephone calls between April and October 2001, and that the FBI transcribed the calls into English—are observations of factual conditions or events that the Supreme Court in Bullcoming v. New Mexico ruled could not be presented by a substitute witness. Connell stressed that at trial the defense would have a number of questions about the telephone evidence, including the timing of acquisition and analysis, the scope of audio acquired, and chain of custody.

Connell next argued that two proposed substitution statements implicated the sort of forensic analysis that required confrontation under the Sixth Amendment pursuant to Melendez-Diaz v. Massachusetts. These statements were that “an FBI linguist then reviewed known voice samples of the accused to determine if voice identifications could be made of the telephone call participants” and “an FBI linguist made positive voice identifications as to four of the five accused in United States v. Mohammad, et al. based on this review.” Connell said that cross-examination could reveal where these voice samples came from, and if they came from a postcapture analysis at a CIA black site, it would support the defense’s claim that the FBI was involved in the CIA’s RDI program. This connection would provide a basis for suppression because 10 U.S.C. § 948r prohibits all evidence obtained by torture. Additionally, Connell said, cross-examination would explore the qualifications and methodology of the linguist as well as challenge the code names analysis used in the investigation. This line of questioning would allow the defense to challenge the basis of knowledge and expertise of the relevant witnesses, and the validity of their work.

Connell called the government’s final proposed statement, that the phone call statements “were corroborated by other evidence in this case,” unsupported bolstering that would give the evidence undue weight with a jury. Connell stressed that the statement begs the question of “what corroborating evidence” the government has and said he would want to see that evidence in court. The seven proposed statements taken together are a “curated exhibit” by the government for litigation, Connell asserted, and are not exempt from challenge under the Confrontation Clause.

Connell then noted that even if the summary exception in the Federal Rules of Criminal Procedure was available here it would not apply because the summary exception assumes both parties have had access to the underlying data and can cross-examine the individuals giving the summary to determine if it accurately reflects the evidence. Connell acknowledged the commission had ruled that substituted evidentiary foundations were admissible as a general matter but highlighted the fact that the commission had deferred ruling on this specific substitution. Judge Parrella agreed with Connell’s analysis.

Trivett, counsel for the government, then addressed the commission to discuss what he characterized as “confusion amongst the defense counsel” about how the government intended to use the seven statements. First, Trivett stated that some of the information was acquired through sources and methods the government wished to protect and, barring that material, the government would have witnesses the defense could cross-examine. Trivett then moved to the constitutional argument and argued that until the confrontation issue actually arose at trial the commission should avoid the constitutional issue. Trivett added that the motion to introduce these statements had not been filed but conceded that the government was planning to file the motion soon.

Trivett said that, assuming for the sake of argument that the issue was ripe, the government’s position would be that the Military Commissions Act was never intended to give full Sixth Amendment confrontation rights to the accused. Trivett read 10 U.S.C. § 949a(b)(3)(D) as allowing hearsay in the commission and 10 U.S.C. § 949p-6(c)(2) as requiring the commission to allow trial counsel to introduce substitute foundational evidence to protect the disclosure of information that might reveal sources, methods or activities. Trivett then noted that 10 U.S.C. § 949p-7 permits the commission to order the admission of only part of a writing, recording or photograph in order to prevent the unnecessary disclosure of classified information. Trivett concluded by noting that no court has ever found that the Fifth Amendment Due Process Clause or the Sixth Amendment applies to someone in the defendant’s position—namely, an overseas alien with no substantial contacts to the United States who is not being tried in U.S. federal court.

Connell responded by highlighting that Trivett’s arguments revealed that six of the seven substitutional foundation statements (statements two through seven) appear to have nonsubstitutional evidentiary foundations to them. If this was the case, then those statements did not need to be read in court because witness testimony would serve the purpose. Connell then turned to statement one and argued that having foundation for statement one was critical to finding material facts for al-Baluchi’s defense. Connell stated that the links inherent to question one were also important to testing the validity of the government’s argument.

While Connell conceded that Congress likely intended to withhold full confrontation rights, 10 U.S.C. § 949p-6(c)(2)(B)(ii) can be read as giving the commission discretion to determine whether the use of substituted evidence was consistent with a fair trial. Connell returned to the facts of al-Baluchi’s case and argued that in this instance such a substitution would deprive the defendant of a fair trial. On the question of admissibility of the calls connecting al-Baluchi to the other 9/11 conspirators, Connell recognized that the government might want to keep certain sources and methods secret, but he said other facts, like the universe of calls made, would be critical to al-Baluchi’s defense and not necessarily damaging to the government’s sources and methods.

After a short recess, the commission addressed AE 574G. Connell outlined the motion, explaining that it dealt with the commission’s decision to substitute the underlying call data, information regarding sources and methods, and the subsequent gag order (protective order #3) restricting any party from making any reference or asking any question during commission proceedings that could tend to reveal or could conceivably elicit information regarding the classified source or method by which the United States acquired these telephone calls.

Connell argued that the substitution for foundation evidence was inadequately vague and the gag order’s breadth prevented the defense from using open-source information to support the defense’s argument. Connell posited that the stripped-down version of their provenance violates the right to a fair trial and that he believed it was proper to raise this motion for reconsideration because the issue implicated the defendant’s constitutional rights. Connell also argued that the commission should revoke protective order #3 because it interfered with al-Baluchi’s defense in two ways. First, it stripped the information and telephone call records of all details valuable to al-Baluchi’s defense while still linking al-Baluchi to the co-conspirators. Second, it prohibited al-Baluchi and his attorneys from asking questions or making arguments in court that would develop the factual basis that the fact-finder would need to make an informed decision as to al-Baluchi’s guilt. The defense argued that, if it was allowed to access material that looked like call detail records, it could use the underlying call information to demonstrate the sloppiness of aspects of the investigation; the nonexistence of hostilities at the time of the calls; and al-Baluchi’s relatively minor role in the conspiracy. Connell added that the order also targeted speech, much of which was already unclassified.

The government responded by noting the commission had already looked at the substitution order and approved it pursuant to an ex parte filing. The prosecution also said that this substitution and protective order were common in national security.

Connell replied by stressing that protective order #3’s blanket prohibition on making certain arguments or asking certain questions without respect to their classification blocked unclassified testimony that the defense was trying to use.

The commission then raised AE 600. Connell provided a brief history of the motion and the government’s initial disclosure of al-Baluchi’s phone calls but asked to address the details of the motion in closed session given the sensitivity of the information.

The commission subsequently turned to AE 617, al-Baluchi’s attempt to compel the government to disclose communications from the International Committee of the Red Cross (ICRC) concerning the existence of an armed conflict between the U.S. and al-Qaeda during the years 1996 to 2002, which would make the defendant a combatant. Defense attorney Benjamin Farley stated that the government must prove the existence of hostilities beyond a reasonable doubt at trial in order to carry its burden to convict al-Baluchi and the other defendants. Farley added that there was also a pending issue before the military commission concerning the commission’s personal jurisdiction based on this challenge.

After the commission pressed him to discuss why he needed the discovery, Farley stated that in order for the government to carry its burden of proving the existence of hostilities it needs to show that a certain standard was met. Al-Baluchi’s defense team wanted to challenge the current standard, described by the Supreme Court in Hamdan v. Rumsfeld. But even under the Hamdan standard, the discovery al-Baluchi seeks in AE 617 is material and relevant because it will help al-Baluchi challenge the government’s assertion that an armed conflict existed before 9/11. Farley stated that one piece of evidence that would help al-Baluchi would be the existence, or lack thereof, of communications from the ICRC reminding the U.S. government of its obligations under the laws of war with respect to a putative armed conflict between the U.S. and al-Qaeda. Farley posited that if this communication did not exist it would show that a neutral third-party organization did not recognize a state of war between the U.S. and al-Qaeda.

The commission moved on to AE 620, al-Baluchi’s motion to compel documents and information concerning the United States’s use of law-of-war detention against individuals associated with al-Qaeda before 9/11. Farley stressed that this is a hostilities-related discovery motion that strikes at the heart of the government’s argument that there was an armed conflict between the U.S. and al-Qaeda before 9/11. Farley posited that if the U.S. believed itself to be in a state of war before 9/11 it should have documents and information related to U.S. government law-of-war detention activities of individuals associated with al-Qaeda before 9/11. The government currently denies this discovery request. Farley argued that the U.S.’s decision to prosecute in civilian court, rather than detain pursuant to the laws of war, the few al-Qaeda members it captured prior to 9/11, shows that the U.S. did not believe itself to be at war pre-9/11.

Farley then turned to the international case of Prosecutor v. Tadic and noted that one of the factors the international tribunal looked at in that case to determine if there was an armed conflict was whether the parties engaged in law-of-war detention. AE 620 was meant to help the defense find material on that question. Farley added that in Hamdan v. Rumsfeld the Supreme Court concluded that the U.S. government’s decision to use the armed forces is a critical sign of whether a conflict exists, and law-of-war detention is a core combat capability of the military.

Trivett replied for the government, stressing the Supreme Court said in Hamdan that the determination of when hostilities between the U.S. and al-Qaeda began depends on the length, duration and intensity of hostilities. The government then discussed how its theory of hostilities is based on Osama bin Laden’s 1996 declaration of war, the al-Qaeda attack on the U.S. embassies in Kenya and Tanzania, the bombing of the USS Cole, and the 9/11 attacks. From these facts the government concluded that the armed conflict started as early as 1996 and no later than August 1998. The government noted that the Hamdan standard lacked any mention of detention operations, and the threshold of materiality in the Hamdan analysis might exclude detention procedures and any ICRC notification to the U.S. government.

Trivett added that the government had already reviewed over 600,000 documents related to the hostilities issues and disclosed to the defense anything in those documents that indicated that the U.S. was not at war prior to 9/11. Trivett admitted that the government has not inquired as to any ICRC notifications because ICRC likely takes the position that all of its communications to any country are privileged, and in any event those documents were not relevant.

Trivett then turned to the law-of-war detainee issue. Trivett argued that the U.S. was in a noninternational armed conflict with al-Qaeda and, in the context of noninternational armed conflicts, it is well accepted that a state may use either its law-of-war or its criminal-law authorities upon capturing a member of an oppositional organized armed group. The government was not going to look for information related to any law-of-war procedure for detainees prior to 9/11 because, for the aforementioned reason, it was not material. Trivett said that the government does not believe there are any prisoners of war who were taken prior to 9/11, because of the nature of the war.

Judge Parrella ended the day’s session and noted that the commission would reconvene for a closed session on March 26.

March 27

The commission reconvened in open session on March 27. Judge Parrella began the session by recapping the RMC 802 conference held on March 26, in which the commission decided to hear arguments on the issue of whether the commission’s ruling in AE 502BBBB, with respect to the existence of personal jurisdiction, should be applied to the other accused who were not the proponents of the original motion. The issue before the commission was whether its finding of personal jurisdiction over al-Hawsawi was res judicata with respect to al-Baluchi and perhaps other defendants as well.

Connell’s position was that RMC 812, which covers joint and common trials, provides that each accused shall be accorded the rights and privileges as if tried separately, giving the other defendants the ability to raise their own jurisdictional claims. Connell added that res judicata’s notion of collateral estoppel, which is what would apply in this case, is not implicated in criminal cases. Beyond the legal issue of res judicata, Connell also noted that when al-Baluchi was precluded by the military commission from litigating personal jurisdiction in 2017, everyone in the courtroom understood the difference between al-Baluchi’s and al-Hawsawi’s claims. Furthermore, Connell maintained that the commission promised that its decision regarding al-Hawsawi would not be held against the other defendants, especially as al-Hawsawi’s and al-Baluchi’s defense strategies started to diverge.

Al-Baluchi’s approach was that there were a wide variety of U.S. actions that showed the nonexistence of hostilities. In contrast, al-Hawsawi argued that, given the existence of all of these factors that the government has identified in Hamdan, U.S. actions prior to 9/11 still did not rise to the level of a noninternational armed conflict and thus not a conflict subject to the laws of war as defined in the Military Commissions Act. Connell concluded by highlighting that when Judge Parrella’s predecessor, Judge James Pohl, ruled on al-Hawsawi’s challenge, Pohl explicitly exempted al-Baluchi from that evidence and argument. It would therefore be a violation of due process to hold al-Baluchi to al-Hawsawi’s litigation strategy.

James Harrington, counsel for Ramzi Binalshibh, added that, like al-Baluchi, Binalshibh does not accept that he is bound by res judicata or law of the case other than if the commission decides separately that its prior rulings also apply to Binalshibh.

Trivett responded for the government and took the position that al-Baluchi and the other three defendants were free to argue that they were not members of al-Qaeda and did not materially support the 9/11 attacks, but they could no longer argue that the government did not have jurisdiction because it was not yet at war with al-Qaeda on 9/11. Trivett maintained that this was a very simple issue because al-Baluchi filed 14 different motions and had had his day in court. Trivett also argued that, as a practical matter, the commission could not make a determination that hostilities existed as a matter of law between the U.S. and al-Qaeda for one defendant and not another.

Trivett added that the only difference between al-Baluchi and al-Hawsawi was that al-Baluchi’s counsel wanted to challenge the government factually while al-Hawsawi’s counsel wanted to place a witness on the stand. Trivett added that while the nexus between hostilities and a particular defendant is an issue that each defense team can litigate, the existence of hostilities has been determined as a matter of law. Trivett pointed to the Supreme Court’s conclusion in Hamdan that hostilities rising to the level of armed conflict existed on or before February 1999. Trivett added that, within the context of the nexus argument, the defense should be required to file an additional jurisdictional motion discussing exactly which components of the Hamdan nexus standard Connell is challenging. Once this motion was filed, Trivett reasoned, the commission would know exactly which issues al-Baluchi was conceding and which issues al-Baluchi believed showed the U.S. did not have jurisdiction over him.

Connell responded that it was not until January 2018 that it was completely clear to him that he should have filed a motion to suppress rather than relying on Judge Pohl’s division of the two hearings. Connell stressed that Judge Pohl’s order, AE 502BBBB, explicitly made rulings with respect to al-Hawsawi and al-Baluchi and then deferred al-Baluchi’s litigation pending the filing of a motion to suppress.

* * *

The remainder of the week’s session, in which Parrella planned to take closed-court testimony from a former CIA black-site interpreter who ended up on a 9/11 case defense team, was stayed by the CMCR in response to petitions from al-Baluchi and outside media and civil liberties organizations. The petitioners seek review of Parrella’s decision to take the interpreter’s testimony in closed session rather than open session.

The commission will next reconvene from April 29 to May 3.