October 17 Commission Session #4: More Protective Order Matters, and a Hand-Raise From KSM

We return refreshed from lunch, and discover that audio has been restored here at Smallwood.  There’s also this bit of news: Walid Bin Attash still isn’t coming to court today.  (There had been some speculation that he might want to, despite deciding to the contrary earlier in the morning.)  Prosecutor Robert Swann relays this no-change-in-status message to the court; no defense counsel have any problems with his account.  So much for presence issues, which, by the look of things so far, may figure prominently in our hearings for a while. The time has come for James Connell III to return to the podium, and to continue his broadside against the government’s proposed order to protect national security information.  Before lunch, the defense lawyer and the court had been discussing control.  Connell can interview witnesses overseas, he explains, because what the witnesses think and believe is beyond the government’s ability to control---and thus, also, beyond its power to classify.  The attorney also lambastes the protective order’s flawed definition of the “need to know,” which, when paired with the appropriate clearance level, permits Connell and his colleagues to discuss secret information and to prepare a defense.  The government suggests that the classifying authority determines the “need to know,” but that’s wrong.  In habeas cases, for example, the protective orders simply deem the defense team to have the requisite “need to know.” Connell then notes the thorough lack of classification guidance in the protective order: the latter leaves defense lawyers guessing about Wikileaks, flying vehicles, and other controversial subjects, and thus obligates them to act in the strictest of caution at all times.  Of course, despite that added burden, Connell has not yet been cited for any infractions or errors; this, Judge Pohl seems to say, suggests a satisfactory status quo rather than a problem needing judicial solution.  A few points more, including one about closure---Connell joins the ACLU’s critique on that issue, and also thinks the protective order’s closure-related paragraphs ought to be excised---and the lawyer is done.  The court, for its part, doubts the need to wade into closure, until circumstances actually warrant. To the well comes David Nevin, whose main point is this: his client, Khalid Sheikh Mohammed, did not “participate” in any classified program; he didn’t have any sort of secrecy arrangement with the government, either.  Instead the classified information under discussion today was forced upon him, quite against his will.  Nevin also thinks little of prosecutor Johanna Baltes’ suggestion that the accused couldn’t be sanctioned for revealing classified material, as cleared personnel might be disciplined or sometimes prosecuted for unauthorized disclosures.  The detainees are being sanctioned: they are not allowed to speak to their families, among other onerous restrictions.  Regarding the protective order’s evident duplication of military commission rules, Nevin notes that the order’s contents are not set by statute.  The lone requirement is that such an order be entered---Judge Pohl thus has discretion, which he should exercise here.  The attorney finishes by noting that not all those who come into contact with KSM have security clearances; some of the JTF-GTMO guards, for example.  Nevin himself also has met with his client in some unsecure---that is, not specially approved for classified chats by the government---location at the detention center.  For those reasons, it strikes Nevin that security procedures have been applied to his client in an arbitrary and inconsistent fashion.  He flags the issue for future purposes.   Next is the Abaya-clad Cheryl Bormann, who adopts her predecessor’s arguments.  With her own eyes she has seen just how liberally detainees can communicate with the ICRC---even about their treatment in CIA custody---and she wants that on the record.  Furthermore, like Connell, she disputes the government’s ability to control, and thus to protect as classified, RDI information that intelligence personnel thrust upon Bin Attash and other accused.  How odd, she notices, that the government so desperately wishes to bring her client’s body to the courtroom, but at the same time labors to keep his memories and thoughts out of it.  The court mentions the notorious 183 instances of waterboarding, in KSM’s case; that nugget of information, in Bormann’s view, is different than the accused’s impressions and experiences.  The latter, for example, don’t come from discovery.  The lawyer’s distinction seems a bit blurry, Judge Pohl observes.  Bormann then latches on to Connell’s remarks regarding the need for a defense-aligned security professional.  The need for security guidance, she says, is both real and recurring.  Johanna Baltes would understand this, and other serious burdens on the defense, if she had ever been a defense attorney.  That burden is especially pronounced when the defense must communicate with investigators and foreign witnesses—who don’t have clearances, and often cannot obtain them.   Lastly there’s the duplication issue: there’s no need for Judge Pohl to enter an order that simply reiterates obligations imposed by statute and rule. (Bormann sits down and LCDR Kevin Bogucki, lawyer for Ramzi Binalshibh, stands up.  But we don’t hear him, because the audio-feed has been muted; a few moments later, we don’t see him, either, as the screen has gone black.  The video feed returns shortly thereafter, but the sound does not.  Soon we learn what happened: Bogucki’s generic reference to a classified technique, Judge Pohl explains, occasioned the 3-minute pause.  The court chides Bogucki for coming close to the line, even in hypothetical form.) The lawyer resumes his argument, the beginning of which we did not hear.  The gist: the memory of conduct (and by now, we all know what kind of conduct) cannot be classified, because the memory derives from the accused’s forced exposure to interrogation methods.  The court shouldn’t make defense counsel handle information as classified, if, in fact, the information is beyond the government’s control and thus no longer classified in the eyes of the law.  The distinction between “treat as classified” and “classified” is on Judge Pohl’s mind.  That’s semantics to Bogucki, who starts to illustrate his point before the court stops him.  A judge, Judge Pohl says, doesn’t have the authority to second-guess classification determinations, does he?  Binalshibh’s attorney doesn’t want Judge Pohl to do any second-guessing.   Instead he asks the court not to bless protective order language that goes well beyond the existing secrecy rules.  Bogucki is done, and sits. KSM has raised his hand, and that confuses Judge Pohl.  Is this a request to be heard?  The court is unclear about the gesture’s significance.  Perhaps the parties will need to have a Rule 505(h) session, in order to determine whether KSM intends to talk about secret stuff?  The government doesn’t think so, and proposes instead to rely on the audio delay as its lone safeguard against disclosure.  According to David Nevin, KSM insists that his chosen topic will not be classified, for sure.  We’ll find out what’s afoot shortly: it is recess time.