Last Week at the Military Commissions: A Deluge of Discovery

Military judge James Pohl, the government, and the Walid Bin’Attash, Ramzi Binalshibh, Ali al-Bahlul, Khalid Sheikh Mohammad, and Mustafa al-Hawsawi defense teams returned to continue plowing through discovery motions last week. During two days of nonclassified argumentation, the defendants in U.S. v Khalid Sheikh Mohammed et al. argued that the government has delayed, denied, and/or destroyed discovery documents. The government argued that defendants’ discovery requests were overbroad and unnecessarily delayed jurisdictional hearings.

Here’s a review of the motions in more detail:

Request to Compel Discovery Regarding James Mitchell’s Enhanced Interrogation (Motion 152)

Defense counsel for Binalshibh, Jim Harrington, requested discovery regarding excerpts of James Mitchell’s book Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America that implicate Binalshibh. These excerpts relate to an incident in which, over a period of time, Binalshibh complained of vibrations and humming in his bed. Mitchell, in his capacity as a CIA psychologist, investigated the complaint, and found that it was true. Binalshibh was subsequently moved to a different cell. Harrington argued that discovery related to the excerpts is important given that the government has previously characterized Binalshibh as delusional. Clayton Trivett, for the government, argued that discovery is not required because Mitchell wrote that “we know no one was deliberately messing with [ Binalshibh]. We told him we were not.” Trivett said there was no reason to believe this wasn’t an engineering issue. He also pointed out that no other detainee complained about similar vibrations or noise.

Reconsidering Prohibition on Communication with Third Parties (Motion 200)

Defense counsel Alka Pradhan for Ali asked Judge Pohl to reconsider a June 2014 decision that prohibited detainees from sending statements to anyone outside their defense teams. A clause in the decision provided that defendant mail could be disseminated to third parties for the sole purpose of preparing the defense for commission proceedings. Pradhan had three questions for Judge Pohl:

1. Does the prohibition on dissemination include statements that have been deemed unclassified through government classification review?
2. What is the difference between unclassified mail and unclassified conversations?
3. How should the teams interpret “for the sole purpose of preparing his defense”?

Pradhan asked Judge Pohl to reconsider his decision based on the fact that, in November 2014, the U.S. went before the Committee against Torture (CAT) to express its view that Articles 1 through 16 of the United Nations Convention against Torture (UNCAT) are reflective of customary international law. In that meeting, the U.S. also asserted that this customary prohibition binds the U.S and its officials under all circumstances (including in the context of Guantanamo Bay). Pradhan cited a memo by State Department Legal Advisor Harold Koh stating that certain UNCAT provisions codify an existing international obligation against the use of torture by providing more specific means to prevent, prosecute, and remedy violations.

Pradhan focused on Articles 13 and 14 of the convention. The CAT has treated these articles as standing for the proposition that an individual who alleges torture has a right to take “effective measures aimed at the cessation of continuing violations.” Pursuant to this right, Pradhan argued that Ali should be able to send mail to third parties detailing, in his own voice, his torture and continued confinement. Such disclosures would allow his defense team to leverage independent investigators (e.g., the media), develop alternative adjudicatory venues and find alternatives to incarceration. All of these actions, Pradhan attested, are in furtherance of the defense team’s preparation, especially given Ali’s deteriorating health.

Judge Pohl had two related questions for Pradhan. First, he asked if there is a limiting principle – if all of these examples are in furtherance of the defense’s preparation, what isn’t related to the defense’s preparation? Pradhan conceded that very little would be considered unrelated to defense under this analytic framework. Second, Judge Pohl asked what would prevent third parties from distributing the defense team’s targeted advocacy to a broader, international audience? Pradhan, in response, argued that there are limits on what the team may distribute—only documents marked unclassified could be shared.

Detainment Reports (Motion 336)

Suzanne Lachelier, for Hawsawi, argued that government-provided Defense Integrated Management System (DIMS) “Display Only” detention records seem to have been selectively printed from a larger detention database. Lachelier pointed out that it would be impossible for Hawsawi’s defense team to request information if they are unsure of what information the government is maintaining on detention. Simply, she “do[esn’t] want the government to play around with what they print, what they give us, how they maintain it different days [sic] so that they can manipulate what they give us.”

James Connell, for Ali, also criticized government-produced DIMS records. He requested that Judge Pohl order the government to produce all confinement records in its possession and provide an affirmative statement that any information not produced no longer exists.

Robert Swann, responding for the government, said that the data missing for nine days in September 2006 “will never be discovered because, quite frankly [the records] don’t exist.” Swann also clarified that the government has, or will be, producing three iterations of DIMS: (1) a redacted copy for defense attorneys; (2) a copy that could be provided to clients; and (3) the “Display Only” copy now at issue. This last copy will provide more information than the client copy. Swann also argued that, taken together, all information requested by defense counsel (i.e., guard numbers) was included.

Connell and Lachelier did not agree. Lachelier argued that data contained in DIMS records have changed over time, making it impossible to tell if information is missing due to a change in procedure or an issue with classification . She also said that the Display Only DIMS are filling gaps which she could not verify against classified detention information. Summarizing his objections, Connell stated that there three types of information remain missing, even when all three DIMS versions were looked at simultaneously: (1) redacted information from September 2006, (2) witness information and (3) non-DIMS detention information (e.g., data generated by the CIA when defendants were in the Agency’s operational control).

Judge Pohl did not issue an order after hearing the argument, though he was concerned about what could be requested since the government had stated that, “there is nothing more I can give [the defense].”

Compelling Information Regarding Former CIA Interpreter Used by Binalshibh Team (Motion 350)

Edward Ryan, for the government, told Judge Pohl that guidance was still forthcoming and requested that argument be postponed because the issue was not yet ripe. Judge Pohl agreed to wait.

Reconsidering Judge Pohl’s Denial of Inquiry into Joint Defense Agreement (Motion 359)

Ryan reintroduced the government’s argument that Judge Pohl should inquire into the circumstances and provisions of a joint defense agreement entered into between the five accused. Citing U.S. v. Stepney, Ryan raised two hypotheticals: (1) that defense attorneys may have entered into an agreement that entailed a duty of loyalty to other defendants, which in turn might require all attorneys to withdraw, and (2) that this duty of loyalty might even require withdrawal when one defendant advances an argument in conflict with that of other defendants. While Ryan thought the first scenario was unlikely, he was concerned that the second might occur and that the Bin’Attash litigation in the Northern District of Illinois would create a recusal domino effect.

Judge Pohl had two concerns about reconsidering his decision denying an inquiry into the joint defense agreement. First, the concern is too hypothetical – the issue could be addressed if defense counsel started to recuse or during the course of litigation as required. Second, Judge Pohl received an affirmative statement from all defense teams that they had a duty of loyalty only to their own clients. With those affirmations, the argument proceeded on other matters.

Scheduling Jurisdictional Arguments (Motion 478)

The parties also disagreed as to when jurisdictional hearings should begin. After some housekeeping regarding accommodations for hearings in Washington, Ryan told Judge Pohl that imposing deadlines through orders would accelerate discovery.

Connell and Cheryl Borman, for Binalshibh, argued that additional deadlines would be as ineffective as past deadlines . Borman also brought up concerns about basic infrastructure needs, including the lack of space for attorney-client meetings.Borman expressed a belief that defense counsel was not ready to set a trial date. Judge Pohl responded that “there comes a point where the case will never be tried if we don’t move it along.”

Requesting Original Photographs (Motion 517)

Maj. Jason Wareham, for Ali, argued that the government should be required to produce the original electronic versions of detainee photographs. Citing Williams v Sprint/United Management Company, Wareham argued that metadata accompanying electronic photos are an inherent part of the electronic document. By providing printouts of the electronic photographs, the government stripped the evidence of much of its inherent data, and therefore its utility. This data oftentimes include the date and time of a photo, camera settings, apertures, resolution, and in some cases GPS and user information. Wareham also argued that metadata should not be subject to separate review since the data are integral to the photos, which were already produced without review.

Capt. Brian Brady, for Binalshibh, stated that the defense is entitled to the photos and associated metadata pursuant Rule 701(c) of the commission. The metadata is material to the defense’s preparation because it contains information about the defendant’s conditions of confinement.

Clayton Trivett, for the government, confirmed that the original photos contained metadata that had been removed due to relevance. He attested that there were no classification issues at this time. Trivett also argued that Williams isn’t binding on the commission and did not change the discovery burdens as articulated by the Military Commission’s rules. Wareham responded that the government conceded relevance after they produced hard copies of the photographs.

Compelling Information Related to Buildings in which Defendants Were Confined (Motion 114)

Pradhan, for Ali, argued that an extensive list of information related to the construction and architecture of black sites, where the defendants were once detained, was material and relevant for three reasons. First, expert declarations by Dr. Pierre Duterte and Raphael Sperry attested to the fact that prison architecture can directly affect the experience of guards and prisoners. Second, the black sites have been destroyed, requiring that additional information be used to reconstruct the detention centers. Third, existing discovery left far too many important questions unanswered. For example, one interrogation room had a grate on the floor, but schematics did not specify if there was running water. If there wasn’t running water, why was there a grate on the floor? In another room, the schematics show re indications of a shackle 12 inches off the floor. What was its purpose?

Gen. Martins, for the government, responded that Rule 701 did not require the government to produce this information. First, Martins noted that Rule 701 is nearly identical to Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure. Discussion of that rule points to United States v. Yunis as persuasive authority. Yunis found that, even if counsel can’t describe specifically how a piece of information would be material to its case, he or she must at least be able to describe the events to which the information would speak. Martins also cited United States v. Graham to argue that discovery information must enable the accused to significantly alter the quantum of proof in his or her favor, suggesting that black site schematics would not so assist the defendants. Lastly, Martins pointed to Rule 701(f), which provides that classified information may be protected and remains privileged at all points in the commission’s proceedings.

Pradhan pointed out that under Rule 701, the government waives objections as to relevance once information is produced. She also rejected the contention that the defense could ask Ali about his experience at the black site in the pursuit of more specific discovery requests. Torture fragments memory, requiring that defense counsel be able to verify everything that he says.

Operation Infinite Reach (Motion 510)

Connell argued that more detailed information about Operation Infinite Reach, an August 1998 tomahawk missile attack on locations in Afghanistan and Sudan, was required to adequately assess the government’s argument that hostilities against al-Qaida existed before the Sept. 11, 2001 attacks. Connell outlined five points in support of materiality:

1. To establish the purpose of Operation Infinite Reach;
2. To assess the intensity of the attack (a showing of intensity is required to prove hostilities in both Hamdan v Rumsfeld and Prosecutor v Dusko Tadic - though the relevance of the Tadic test was repeatedly criticized by the government)
3. To support the defense’s argument that a comparison of Operation Infinite Reach with contemporaneous military activities will show it was not the start of hostilities against al-Qaida;
4. To support the defense’s contention that Operation Infinite Resolve, if it had been operationalized, probably would have represented the beginning of hostilities; and
5. To test the hypothesis, seen in some media outlets from 1998, that Operation Infinite Reach was politically intended to distract the public from President Clinton’s grand jury investigation.

Trivett, for the government, responded that under Hamdan, the government’s intention regarding Operation Infinite Reach was much less important than the fact that it actually occurred. Trivett focused Judge Pohl’s attention on the history of violence by al-Qaida against U.S. targets (e.g., embassies, planes, buildings and warships). He also argued that some of the information requested by the defense, such as Tomahawk failure rates, is irrelevant to the Hamdan analysis. Trivett also disputed Connell’s characterization of Operation Infinite Resolve as the “path not taken.” Trivett instead attributed U.S. inaction to the lack of verifiable targets and a lack of appropriate weapons systems.

Connell argued that details were needed to inform the hostilities analysis. He asserted that a number of Hamdan factors (e.g., number of casualties, extent and type of property damaged) are included in the discovery request. In particular, the Tomahawk failure rate is important to assess whether ordinance reached their intended target. Connell also pointed out that 98 percent of relevant material disclosed by the government in discovery has been redacted.

Judge Pohl had two questions for Connell. First, he asked whether this motion was ripe given that the government planned to present more documents to the defense. Connell answered affirmatively because the government has been working on presenting these documents since late 2014 and had previously asked for orders to more quickly fulfill discovery requests. Second, Judge Pohl discussed Hamdan’s precedential weight given that it was reversed on grounds unrelated to the hostilities analysis. Speaking to Mr. Connell, for example, Judge Pohl pointed out that, “if the court was, for want of a better term, improperly constituted because of an improperly sitting judge, that strikes to me is a different type of reversal that would give that opinion no weight whatsoever.” Connell appeared to be partial to an interpretation that a vacated ruling is non-binding, especially given that this is the D.C. Circuit’s rule. Trivett, on the other hand, argued that the commission should welcome whatever guidance it can get its hands on.

Establishing Hostilities between U.S. and al-Qaida (Motion 514)

Connell continued his exploration of hostilities doctrine by arguing that the government should produce Delenda, a military plan that allegedly outlined a comprehensive approach to countering al-Qaida, which he characterized as a “path not taken.” Trivett objected to Connell’s characterization of Delenda, saying that President Clinton’s statements regarding Delenda battle plans actually supports the government’s position that the US and al-Qaida were engaged in an armed conflict. Doubling down, Trivett argued that “the plans on the shelf do not matter to the standard [for the existence of hostilities] and, therefore, they are not entitled to them on discovery.”

Judge Pohl asked Trivett whether hostilities doctrine requires both sides to agree that they are engaged in hostilities. Trivett said that it does not. Judge Pohl then asked Connell whether a first strike, creating an armed conflict under jus ad bellum, could be unlawful under jus in bello. Connell, citing the U.K.’s reservation to Additional Protocol I regarding the Irish Republican Army, responded that the one-shot rule does not apply to non-international armed conflicts (NIAC). He asserted that there is an objective analysis for NIACs, but that the “most important vote” is that of the state. The state’s judgment is necessarily retrospective. Therefore, the defense needs to know the view of the American government at the time of these military actions in order to assess whether it could objectively understood as being in a NIAC.