Last Week at the Military Commissions: A New Judge Hits the Ground Running

With a new judge presiding, the military commission in United States v. Khalid Sheikh Mohammad, et al. (the 9/11 military commission) reconvened June 17-21. See here for previous coverage on Lawfare.

The multiday session was intended to hear arguments on multiple motions. The week saw a voir dire session of the new judge, request for more CCTV coverage, calls for an investigation from the defense and inputs for a future scheduling order. We’ve broken down the commission, day by day, below.

June 17

Col. Shane Cohen, the newly appointed military judge for the commission, called proceedings to order and noted that he would be replacing Col. Keith Parrella. After addressing the defendants’ right to be present for proceedings—which both al-Baluchi and al-Hawsawi waived—he submitted himself to voir dire questioning by the parties.

David Nevin, counsel for defendant Khalid Sheikh Mohammad, was the first to ask questions. In response to Nevin’s questioning, Cohen noted that even though he is moving into the position of chief circuit military judge of the Eastern Circuit in the Air Force, he viewed the commission as his primary responsibility. Cohen indicated he would consider reviewing past motions and documents if requested but wouldn’t do so sua sponte. Cohen denied being assigned to the military commission under protest and indicated that he does not know how long the assignment will last, though he noted that he has only nine years until mandatory retirement.

When asked about the D.C. Circuit’s recent opinion that invalidated many of the decisions of military judge Col. Vance Spath in the al-Nashiri military commission, Cohen indicated that his takeaway was to disclose and be forthcoming regarding potential conflicts of interest.

Cohen confirmed this would be his first capital case but indicated that he had started to receive qualifications to become a learned counsel, was familiar with a capital case’s specific requirements, had received training in mitigation (including psychological aspects) and understood Supreme Court rulings as allowing broad discretion in these cases.

After recessing for lunch and prayer, Cheryl Bormann, counsel for defendant Walid bin Attash, began her line of questioning. When asked, Cohen stated that unlawful influence can, in general, be cumulative. Cohen also indicated that, while he had not read decisions regarding substitutions and summaries of classified information in other ongoing military commissions, he would review everything relevant to a motion before this commission and requested that parties highlight those motions and rulings that they think are most relevant. Finally, Cohen indicated that, while this was his first joint trial, he was generally familiar with relevant procedures.

James Harrington, counsel for defendant Ramzi bin al-Shibh, began questioning by asking whether Cohen was aware that the defendants would be bringing up the issue of torture in this case; Cohen acknowledged he was aware but had done no outside research. When asked, Cohen addressed whether he has any particular viewpoints about Israel, stating that—while he has Jewish relatives—he is a member of the Church of Jesus Christ of Latter-day Saints and has no affiliations with Israel nor any ill will toward Islam.

James Connell, counsel for defendant al-Baluchi, asked whether a variety of relationships and issues previously raised in the questioning would affect Cohen’s impartiality. Cohen indicated that they would not.

Finally, Walter Ruiz, counsel for al-Hawsawi, closed out voir dire questioning for the defense. Among other questions, Ruiz asked Cohen if he had specialized training in the law of armed conflict. Cohen replied that he did not receive specialized training but was briefed on the subject as well as the rules of engagement. Ruiz concluded his questioning by asking if Cohen received any briefings about the individual participants of the commissions. Cohen, while he got some general background (including pictures), did not receive any such briefings.

The government followed up with a single question, asking Cohen whether he has any pending applications for civilian employment with the Department of Defense or the Department of Justice—the sorts of conflicts of interest that recently led the D.C. Circuit to invalidate Spath’s rulings in the al-Nashiri case. Cohen responded no to both.

Harrington then raised a separate matter: that his client bin al-Shibh has been experiencing sensations of itching and being bitten, which bin al-Shibh believes are the result of intentional disorientation by the government. Cohen asked that the government look into the matter, to which the government responded that the matter has been litigated, recommended that Cohen review the 152 series of exhibits and confirmed that the government is not intentionally harassing bin al-Shibh. Cohen said he would look at the orders and clarified that his previous request was not an order.

With no challenges to Cohen resulting from the voir dire, the commission went into recess.

June 19

After addressing certain defendants’ decision not to attend, Cohen began the June 19 proceedings by noting that he intends to continue running the commission in the same manner as his predecessor with small adjustments for judicial economy. One of these changes will allow defendants to join each other’s suppression motions when appropriate and question witnesses brought in by the government—or each other—during motion hearings. Nevin raised a concern that allowing witnesses to be questioned by all parties implicated the government’s argument that the court’s decisions should be binding on all the defendants. Cohen clarified that the commission was not prepared to define the scope of this res judicata issue and was merely taking this step as a way to speed up the proceedings by having witnesses testify only one time.

Cohen then turned to the prosecution’s Appellate Exhibit (AE) 007I motion. Capt. Jackson Hall, on behalf of the government, argued that the prosecution seeks three specific things: the establishment of a new closed caption television (CCTV) remote site at the Pentagon and the designation of Fort Meade as an additional CCTV site. Cohen responded that he would consider the policy implications of the decision and get back to the government.

Rita Radostitz, counsel for Mohammad, supported the government’s position and argued the court should take an even broader approach because it was in the commission’s interest to have its sessions broadcast to multiple locations, potentially including via the internet. Radostiz argued further that it is within the commission’s power to issue an order requiring these changes, adding that attendance at the current CCTV sites was light, due to the difficulty of access to the current locations. Lt Col. Sterling Thomas, counsel for al-Baluchi, agreed that viewing proceedings remotely would be a step in the right direction.

Cohen responded that, while he understands the unique circumstances of this case, in federal court nothing is broadcast online. Thomas, however, stated that the commission has the authority to do this under Rule for Military Commissions (RMC) 806C, which states that “the military judge may, as a matter of discretion, permit contemporaneous closed-circuit video or audio transmission to permit viewing or hearing.” Thomas supported this argument by pointing Cohen to a 2019 GAO Report urging consideration of such steps as well as documents showing that families who lost loved ones in the 9/11 attacks want a greater ability to observe military commission proceedings. Responding for the government, Hall argued that mandated access to CCTV of military commission proceedings should be limited in the same way cameras and electronic devices in court are limited. Hall stressed that the federal courts had pursued several pilot programs of recording oral arguments and ultimately decided to reaffirm its general policy against recording federal court proceedings.

Before arguments concluded on this topic, Radostitz added that the government’s current definition of “victim family member” was limited to immediate family and noted that allowing the public to view the proceedings would allow extended family and friends to benefit as well.

The commission then turned to AE 0621, a defense motion to compel the production of discovery related to evidence provided by the German government. Wyatt Feeler, defense counsel for bin al-Shibh, stated that this motion was critical for his client at the trial and presentencing phases because any agreement between the German government and the United States to share evidence might preclude the use of that evidence to pursue the death penalty. He added that, while the United States did not plan on introducing any German collected evidence, bin al-Shibh still needed to know the extent of those original agreements because the prosecution could have used the German investigation to re-create the information provided. He also posited that if the government flagrantly violated some kind of agreement, that would be Brady material and could be exculpatory. Nevin joined this motion. Connell added that it is clear that the government’s evidence was collected using the German investigation because the discovery provided to the defense for this trial had markings from the Moussaoui case.

Clay Trivett, responding for the government, confirmed that these agreements exist, further asserting that the government intends to keep all the agreements it made with the German government and had turned over all exculpatory or mitigating evidence. Cohen asked to review the agreements in camera. Trivett said he would produce them after he received instructions from the Justice Department about potentially filing a motion in opposition.

Next, the Court turned to Joseph Wilkinson, representing al-Hawsawi, who argued in favor of his motion to dismiss on the grounds that the Military Commissions Act (MCA) of 2009 is an unconstitutional bill of attainder that deprives the 9/11 conspirators of an Article III jury trial and retroactively criminalizes their relationship to al-Qaeda. Wilkinson observed that there is a functional test laid out by the D.C. Circuit in United States Department of Homeland Security v. Kaspersky Lab, Inc., et al. for determining if the MCA is a bill of attainder, which requires that it have a clear and convincing, nonpunitive, administrative purpose. Wilkinson concluded that the government has not satisfied this test because there is not one nonpunitive administrative purpose for these commissions, nor any exigent circumstances or battlefield need.

Responding for the government, attorney Robert Swann rejected this argument by pointing to United States v. Bahlul in support of the position that courts have considered. Swann added that the defense does not have the correct definition of a bill of attainder, which actually describes legislation that declares a person or group guilty of some crime and then punishes that person or group without the benefit of a trial. Swann rejected the defense’s assertion that differences between civilian and military courts are sufficient to trigger bill of attainder concerns.

The court then went on break, after which it concluded the day with a closed session.

June 20

After addressing the defendants’ right to be present, Cohen opened the day’s proceedings by summarizing a brief RMC 802 session held the prior afternoon, which addressed how he intended to proceed with suppression motions and related witnesses. Brig. Gen. Mark Martins then responded, for the government, to the commission’s request for an update on the status of three redacted unofficial transcripts of closed RMC 806 sessions. He stated that the procedures of the security classification and declassification review team had slowed down this process quite a bit but noted that briefing in AE 490 opposing the defense’s motion to dismiss conspiracy, terrorism and hijacking charges would show how a decision in the government’s favor would survive de novo review.

Cohen then turned to AE 524MMM, a defense motion to reconsider an earlier ruling on a prior motion, AE 524LLL. Initiated by al-Baluchi’s defense team, AE 524LLL sought to compel the government to produce certain government witnesses whose identities the government had declined to disclose due to their involvement in the CIA’s classified Rendition, Detention and Interrogation (RDI) program. The earlier motion stated that not knowing the witness’s identities presented the defense with an insurmountable obstacle to its own investigation. Arguing in support of the motion to reconsider, Ruiz posited that—even if the government was not going to call certain unidentified witnesses to testify—the defense might want to call those witnesses or need those interviews to help inform and build its case in chief.

Cohen then asked how this position fits into defense motions to suppress statements made to the FBI during “clean” interviews of the defendants, which were separated in time and conditions from any enhanced interrogation. Ruiz responded that the cases United States v. Ronald Hodge and Mickens v. Taylor showed that a defense is impeded if it is prevented from effectively cross-examining certain witnesses involved in an investigation. Ruiz stressed that either the commission should allow the government to know the identity of these witnesses or suppress their testimony by reinstating AE 524LL.

Cohen allowed other parties to comment as well. Connell stated that never in the history of American courts has the defense only been able to interview five of the government’s proposed 64 witnesses—none of whom the government identified beyond a unique functional identifying (UFI) number. He then argued that the “clean” FBI interviews were meant to re-create statements elicited by the CIA through torture in a nontorture setting. For this reason, Connell argued, there is a fundamental contradiction between allowing the FBI agents and other witnesses to testify his defendant’s statements without an investigation into the methods of acquisition. Connell discussed prior efforts to find and identify the government’s 64 witnesses, which culminated in a restriction that required the defense to go through the FBI. After proposing a way forward that addresses various outstanding motions, Connell concluded by discussing the defense’s most recent investigative steps, including the interviewing of 120 witnesses who provided medical treatment to the defendants.

Cohen then allowed Nevin to address a related motion to reconsider, AE 524PPP, which challenged Protective Order #4 that limited the defense’s ability to investigate and identify former U.S. government employees involved in the CIA’s RDI program as part of its broader investigation. He argued that the only way Colonel Cohen would ever know if the government carried its burden of showing any defendant’s statements to the FBI that were not the product of torture would be to have the defense team investigate.

Bormann similarly argued that, while Americans in the room understand the difference between the CIA and the FBI, the defendants did not. So, after weeks of torture by one, they are going to repeat the answers—extracted by torture—to the other.

Harrington then addressed the motions, emphasising that the judge’s ruling was critical to the message he wanted to convey. Harrington added that there were many phases to what happened to the defendants, making a defense investigation essential to determining the effect of the CIA’s torture on the defendant’s statements to the FBI.

Trivett, responding for the government, stated that he wanted the court to understand that AE 524MMM and AE 524PPP were simply motions to reconsider Parrella’s earlier order and present a few new arguments. Trivett explained that the government restricted the defense’s access to the witnesses because of both the national security privilege and the substantial threat these witnesses and their families might face if the public knew their identities. Furthermore, Trivett contended that the commission could not require these witnesses to interview with the defense team and that, if these witnesses signed nondisclosure agreements as part of their jobs, they are bound not to talk to the defense team. Adding that the government does not plan to contest the fact that the RDI program was assertive or aggressive, the defendants’ accounts of their torture will be all the jury needs to establish what happened to them.

Cohen asked Trivett if the government would stipulate the facts they will not challenge, to which Trivett responded that the government not only wrote a stipulation but offered to let the defense assist them. Additionally, Trivett noted that the government believes the defense investigation is critical to a fair process and is doing everything it can to facilitate interviews within relevant limitations, including securing testimony from the architects of the RDI program. Ruiz acknowledged that while a stipulation would be good, it would not solve the investigative problems created by preventing the defense from interviewing the government’s witnesses.

Connell intervened to point out that no information in the record indicates that the identities of the 64 witnesses are covert and, even if witnesses had signed nondisclosure agreements, the defense was made up of qualified government employees who were authorized to receive this information.

Adding that some of this evidence appears to be classified only because it covers up embarrassing or illegal evidence, Nevin stressed that this was against the doctrine of classification. From these two facts, Nevin stressed that in this capital case involving torture, the defense team would be in danger of violating the Sixth Amendment if it did not push to conduct its own investigation.

With no further argument from either side, the commission concluded its session.

June 21

Following some administrative matters at the start of the proceedings, Cohen turned the floor over to Harrington, who presented arguments in support of a motion for an extension. He reminded the court of the defense’s difficulties with respect to Protective Order #4, noting that, this week, they received more classified discovery that will require further investigation. In response to a question from Cohen, Harrington said he wanted a period of around six months to investigate with the witnesses and then file any additional suppression motions.

When Cohen requested that relevant counsel give their preferences for what might be in a scheduling order, other defense counsel generally agreed with the six month time frame. Cohen noted earlier issues with the defense receiving potentially relevant documents after filing motions to suppress, informing the government that such acts are unacceptable going forward. He ultimately directed parties to submit their inputs to him for a scheduling order in no more than four weeks and asked the government to set a deadline for completing discovery on RDI information.

Trivett acknowledged the request and welcomed the court’s issuing a scheduling order. He went on to mention for the court’s consideration that there will be difficulties in getting witnesses to Guantanamo, both because of various flight logistics and because many of the federal agents employed nearly 18 years ago are no longer in government service. Trivett also noted that the defense teams had significant time to prepare for litigation on the voluntariness of their clients’ statements to the FBI and called for the defense to include the names of witnesses it intends to call in its proposed scheduling preferences so that the government can produce them.

After a brief recess, the court decided to table AE 118N then took up AE 530TTT relating to al-Hawsawi’s computer access. Ruiz started the argument by discussing a 2008 ruling that al-Hawsawi should have access to a computer with digital files relevant to his defense for at least 12 hours a day. Following prior concerns regarding al-Hawsawi’s use of the computer, the military commission ultimately ruled there was no evidence of misuse and the computer should be returned. Currently, however, Ruiz noted that al-Hawsawi has maybe 4 hours to use the computer and requested that Cohen reinstate the 12-hour minimum and abate proceedings until the government complies.

Edward Ryan replied for the government. Overruling an objection from Harrington, Cohen permitted Ryan to note that the other defendants’ actions resulted in forfeiture of their laptops. He went on to detail the context of the 2008 ruling: that, at the time, the defendants were representing themselves. With all defendants currently represented, as well as the potential security issues involved with the use of laptops, Ryan argued that Cohen should show proper deference to the decision of the local commander at Guantanamo Bay as well as recognize that no significant rights are being denied. Ruiz replied that the government was simply using a broad brush to paint al-Hawsawi alongside the other defendants.

The court recessed and later returned for a classified session before adjourning until July 22.