Last Week at the Military Commissions, Feb. 26-Mar. 2: Judge in 9/11 Case Seeks Answers on Convening Authority Firing

The military commission in United States v. Khalid Sheikh Mohammed et al. (the “9/11 case”) reconvened for pretrial proceedings last week, meeting in open session on Feb. 26 and March 1 in addition to several closed sessions through the remainder of the week. (A public transcript has only been released for Feb. 26.) Topics addressed in unclassified proceedings include the repercussions of the firing last month of the military commissions’ convening authority and legal advisor; possible conflicts of interest created by the government’s restrictive guidance for investigations; the ongoing debate about the legal standard for membership in al-Qaeda; and persistent challenges surrounding public access to military commission proceedings. At the end of the week, the commission went into recess until the next set of hearings, currently scheduled for Apr. 30.

Convening Authority Turnover

Presiding Judge James Pohl began the Feb. 26 session with a discussion of Defense Secretary James Mattis’s sudden dismissal of convening authority Harvey Rishikof and legal adviser Gary Brown on Feb. 5. In reaction to Rishikof’s removal, attorneys for defendants Khalid Sheikh Mohammed and Ammar al-Baluchi filed motions to dismiss for unlawful interference on the grounds that Mattis’s removal of Rishikof and Brown may have been intended to influence the outcome of the 9/11 case.

To expedite resolution of the situation, Pohl indicated that he planned to issue an order directing the government to secure declarations from Mattis and Defense Department acting general counsel William Castle laying out the facts surrounding the action by Mar. 19. (Later in the week, a Pentagon spokesperson indicated that Mattis intended to provide a sworn statement by the deadline.)

Independent Sweep for Surveillance Devices

In relation to Rishikof’s removal, defense counsel also raised an outstanding request to the convening authority to have attorney-client meeting spaces independently swept for surveillance devices, due to concerns among defense counsel regarding the confidentiality of their communications. Defense counsel went on to assert that, after publicly recommending the construction or designation of a surveillance-free attorney-client meeting facility in November 2017, Rishikof had verbally agreed to fund the sweep in late January 2018 but was removed from office before he could do so. Following Rishikof’s removal, chief defense counsel Brig. Gen. John Baker submitted a new request to acting convening authority Jim Coyne for such a sweep, on behalf of both the defendants in the 9/11 case and the Military Commission Defense Organization as a whole. (Later in the week, media reports indicated that the acting convening authority had authorized sweeps of certain areas.)

Conflict of Interest

David Nevin, who represents Mohammed, reiterated his contention that certain government guidance and the related threat of criminal prosecution precludes his faithful representation of Mohammed. Nevin cited government guidance from September and November prohibiting defense attorneys from approaching CIA agents to inquire about the CIA-run Rendition, Detention, and Interrogation (RDI) program or going to a foreign country with the aim of investigating an alleged “black site” where RDI-related activities took place. Counsel for defendants Walid bin Attash and al-Baluchi expressed similar concerns. For the government, trial counsel Jeffery Groharing said that new guidance would be forthcoming shortly on these subjects.

Pohl endeavored to clarify restrictions created by the September guidance on determining whether persons working for RDI program but not protected by a code name could be contacted without government permission. Recognizing the clear disconnect between Groharing’s comments before the commission—which suggested that personnel associated with RDI could be contacted if their names were not protected—and the more restrictive language of the September guidance, Pohl indicated that he would revisit the government’s guidance once it had been fully litigated and briefed.

On March 1, according to reporters who were at the hearing, Groharing provided eight CIA names that could be contacted without contravening government regulations. He emphasized that defense counsel can’t contact other CIA people personnel who have been involuntarily identified by third-parties and declined to say whether or not former CIA director Porter Goss could be contacted. With regard to the November guidance on black sites, Groharing said that classified information from one’s client regarding the use of black sites could not be used in an unclassified setting. Defendant al-Baluchi’s counsel objected to this, observing that detainees involuntarily brought to Guantanamo Bay could not be in privity with the United States so as to be required to keep information known to them secret. Similarly, defendant Mohammed’s counsel sought further clarification regarding the government’s apparent assertion that “words that come out of Mr. Mohammed's mouth about his own personal experiences and observations could be classified.”

Discussion continued on March 1 about whether a defense attorney with a security clearance could ask questions in an unclassified setting where potentially classified information could be found in open source. Pohl clarified that as long as defense attorneys could point to an open source for any information raised, such as the New York Times, it was permitted.

Who Is “a Part of” Al-Qaeda?

The parties resumed discussion of Appellate Exhibit (AE) 502JJJ, in which the government asks the commission to adopt the legal standard articulated in Bensayah v. Obama to evaluate who is “a part of” al-Qaeda. Defense counsel for defendant Mustafa al-Hawsawi, Maj. Joseph Wilkinson, rejected the functional test put forward in Bensayah, arguing that the plain meaning of the Military Commissions Act instead dictates that to be “a part of” al-Qaeda requires formal membership. Citing the government’s position in AE 502C, which discussed different elements that could be used to prove personal jurisdiction, as evidence that “member” and “part” have been used synonymously, Wilkinson urged the court to consider al-Qaeda’s own understanding of membership. Wilkinson further cautioned the court that capital cases don’t require the same deference as those related to security detention and that the Authorization for Military Force should be treated as a separate area of law from the Military Commissions Act.

By contrast, al-Baluchi’s attorney, James Connell, embraced a functionalist approach to defining who is a part of al-Qaeda. Citing 10 U.S.C. §948a(7)(c), he argued that an individual can be regarded as a part of al-Qaeda if he performed “a continuous combat function.” To determine what a “continuous combat function” means in the context of non-international armed conflict, Connell cited the Defense Department in its Law of War Manual, which adopts relevant International Committee of the Red Cross rules about targeting and provides that an individual is targetable if his or her role is analogous to a soldier in a state’s armed forces.

Security Measures

Another major issue addressed during the Feb. 26 session was the 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. Counsel for defendants Mohammed, al-Baluchi, and bin Attash jointly filed motion AE 530MM on Feb. 16, consenting to a forensic search of the defendants’ computers for any evidence of use of disabled communication capabilities and challenging the prosecution’s proposed methodology for how the forensic analysis should be conducted. The defense argued that the government’s proposal exceeded the scope of threats previously identified by Pohl. While the government’s proposal would require distribution of the report to U.S. Southern Command and Joint Task Force Guantanamo, the defense’s proposed consent form would keep information within the military commission. Pohl said he would issue a written order based on the current pleadings and that the government could decide what it wants to do after that.

Public Access

The commission also discussed larger questions regarding original classification authority (OCA) review and public access to court proceedings. Connell questioned the procedure for publication of court proceedings, highlighting that the government has only released three of 224 classified proceedings in redacted form from the time of arraignment in May 2012 through January 2018. Connell argued that because Pohl had previously ordered the government to comply with Regulation for Trial by Military Commission Chapters 17.1 and 19.4 to no avail, the judge should sanction the government. The government challenged Connell’s empirical assertion, noting that 95 percent of filings submitted as unclassified have been posted. After a brief exchange about why it takes more than 15 days to publish materials to the website, Pohl instructed the government to verify with the webmaster whether or not all materials must go through OCA review before being shared online. On March 1, Pohl confirmed that the regulation meant that every court filing had to go through a classification review. Relatedly, the judge announced a new classification policy in response to confusion generated during a recent filing attempt by the defense. Going forward, every pleading will require an affirmative statement that the document as submitted with all attachments has either (1) been reviewed by the defense information security officer or (2) contains no classified information. In the event that information security officers have a concern, they will send materials to OCA for a classification review.

Witness and Material Production Motions

The commission resumed its discussion from January of AE 502MM, which relates to Rule 914 of the Rules for Military Commissions (the military equivalent to the Jencks Act). Counsel for al-Baluchi previously argued that the government adopted too narrow a definition of covered material and therefore failed to adequately produce the relevant writings by FBI Special Agents Fitzgerald and Perkins, who testified in December. In response, Pohl told Connell to draft an order specifying the writings sought. The government opposed the defense counsel’s draft, AE 502RRR, on the grounds that the wording didn’t align with the wording of the original rule in Section 3.b, and that Section 3.a, which called for the government to produce all communication between the FBI and CIA regarding the interrogation, interviewing, or debriefing of the accused, was overly broad. Pohl suggested that, rather than redrafting orders submitted by the parties, he would take up the government’s suggestion and issue orders for all witnesses himself going forward, while still soliciting comments.

On March 1, defense counsel for al-Baluchi, reportedly said the prosecution purposefully distorted documents provided to defense counsel regarding the interrogations by the CIA. She said that the Senate black-site report contradicted the prepared documents that they had received. Groharing said the prosecution did not make any edits to the documents in order to mislead the defense.

Miscellaneous

The defense proposed to defer argument on AE 538, which deals with discovery matters surrounding the interrogation process that defendant bin Attash went through, until after the defense receives outstanding discovery pursuant to requests AE 360, AE 363, AE 364, AE 365, and AE 369. As a result of Perkins’s December testimony, the defense learned that the FBI and CIA had more extensive interactions regarding the interrogations than anticipated, and subsequently submitted eight additional discovery requests related to the government’s interrogation techniques, manuals, rules, and protocols.