This Week at the Military Commissions, 10/11 Session: Post-Hurricane Matthew Edition

We’re back at Guantanamo Bay for another round of pretrial hearings in the 9/11 case—one day later later than scheduled, thanks to Hurricane Matthew. But as of Tuesday, October 11th, personnel have returned to the base, the lights are on, and the court is back in session.

The government and defense teams present themselves to Military Judge Col. James Pohl. Khalid Sheikh Mohammed, Walid bin Attash, Ammar al Baluchi, and Mustafa Ahmad al Hawsawi are present in the courtroom, but Judge Pohl notes that Ramzi Binalshibh appears to be missing. James Harrington, Binalshibh’s defense counsel, explains that his client is in the holding pen outside the courtroom: he “went through another period of extreme frustration” and is now being disciplined. Judge Pohl reminds Harrington that there’s a court order saying that Binalshibh must attend today’s hearing and gives him fifteen minutes to go pull his client together.

When the court reconvenes with Binalshibh back in the room, Judge Pohl reads the accused their rights to waive attendance and asks if they follow. KSM says he understands; bin Attash says he understands and reminds Judge Pohl that he wants to fire his lawyers. Hawsawi can’t respond, because his headset isn’t working and he can’t hear the translation. Judge Pohl then turns to Binalshibh, who says in English that he can’t understand anything that Pohl is saying:

ACC [MR. BINALSHIBH]: [Speaking in English] Not at all. I didn't understand anything.
MJ [COL POHL]: You didn't understand anything?
ACC [MR. BINALSHIBH]: [Speaking in English] Nothing.
MJ [COL POHL]: Even though we have done this every session, you don't understand about your right to be present?
ACC [MR. BINALSHIBH]: [Speaking in English] No.

[...]

ACC [MR. BINALSHIBH]: [Speaking in English] ...I need you to force your orders on the guard exactly the same way you force the orders on me.
MJ [COL POHL]: I'm not sitting here having you tell me what I need to do.

Binalshibh is complaining that Judge Pohl hasn’t stopped the noises and vibrations that pervade his cell, and which he believes the government is using to torture him. When Judge Pohl tells him to be quiet so that the proceedings can begin, he hits back: “Either I'm going to leave or I'm going to talk or you are going to stop this abuse.” And when the judge finds him disruptive and has him removed from the courtroom, Binalshibh responds, “That’s exactly what I want. I don’t want to listen to you.”

MJ [COL POHL]: Take him out of the proceedings. Goodbye.
ACC [MR. BINALSHIBH]: [Speaking in English] Goodbye.

Now that that’s taken care of, Judge Pohl turns back to the business of waiver rights for the accused. Baluchi says he understands. Meanwhile, the problem with Hawsawi’s headset seems to be coming from interference from the wheeled carts used in the courtroom, so there’s some brief rearrangement of furniture in order for Hawsawi, holding his headset in the air in order to get the signal, can assent.

For Hawsawi, Walter Ruiz tells Judge Pohl that his client is scheduled for a medical procedure on Friday and will have to waive attendance for that day’s hearing. (Later reporting from Carol Rosenberg indicates that the procedure in question is rectal surgery to address damage from Hawsawi’s “sodomy” while in CIA custody.)

Bin Attash speaks up. “I want to go on the record and raise my objections,” he says, which are the same as those he’s raised before: he doesn’t consider his defense to be representing him, and he hasn’t communicated with them either by mail or in person for months.

The last point, the presence of the defense team with me on this case, in this situation, which is ill, will make them part of killing me. It will also make them part of the government decision to issue the death sentence, and they will not be an aid to me.

Judge Pohl dismisses this concern on the grounds that it’s already been dealt with and reiterates his previously ruling preventing bin Attash from firing his defense team.

For Baluchi, James Connell wants to talk about several motions filed in relation to the government’s destruction of evidence at CIA black sites. The defense wants to discuss the motions in open court for transparency’s sake, but the government has failed to adequately declassify the necessary documents that it has provided to the defense. Connell is pushing for the government to identify the particular phrase or topic that’s classified in the offending pages in order to more efficiently produce unclassified versions and move forward with discovery, and he wants a written order from Pohl in order to force the government’s hand.

Judge Pohl moves on to Ruiz, who has withdrawn a motion requesting an Article 5 hearing under the Geneva Conventions to determine whether the all five of the defendants are lawful enemy combatants. David Nevin (for KSM) and James Harrington (for Binalshibh) join the withdrawal, but Connell protests on the grounds that the “Article 5 question” has become confused with the question of the military commission’s personal jurisdiction over alien unprivileged enemy belligerents. After both Ruiz and Judge Pohl point out that Connell has gone somewhat off-topic, Connell acknowledges that he legally has to withdraw from the motion as well, but reassures the court that he’ll be refiling a new motion for a hearing under Article 5.

Cheryl Bormann (for bin Attash) agrees to withdraw as well, though she backs Connell up on the Article 5 issue.

And with that, it’s time for a health and comfort break. Judge Pohl requests that the lawyers refrain from mobbing the court reporters and give them time for health and comfort too.

With the court back in session, three witnesses present themselves to testify over video link: ”Captain L” (formerly a legal advisor at Camp VII), “Captain E” (formerly an Assistant Staff Judge Advocate), and “Assistant Watch Commander Number 1482.” The issue at stake is a routine cell search in which the guards seized a yellow legal pad on which Hawsawi had been communicating with his lawyers. It appears that the pad was seized because Hawsawi’s identifying detainee number was handwritten on the pages—not stamped, as the camp requires. Once officials realized that Hawsawi had been writing legal information on the pad, they returned it to his cell.

Over the course of Ruiz’s examination of the witnesses, it becomes clear that Ruiz wants to know why the government conducted a substantive review of what was written on the pad, instead of just stamping it and returning it to Hawsawi. He does not get any resolution on the matter. Interestingly, it also surfaces that of the fifty items of contraband seized over the past year from the 9/11 defendants, more than half were taken from KSM.

Now that testimony over Hawsawi’s notepad is out of the way, Judge Pohl moves on to deal with some administrative business regarding protective orders preventing the disclosure of national security-related information, specifically regarding the scope of the Chief Defense Counsel’s responsibilities. Next the judge suggests that the court take up a motion by Binalshibh granting Abu Zubaydah testimonial immunity for any testimony he provides on the mysterious noises and vibrations in Binalshibh’s cell. But Harrington asks that Judge Pohl delay that motion until tomorrow, as his team is still having conversations with Abu Zubaydah on the matter.

Instead, Judge Pohl turns to Suzanne Lachelier, counsel for Hawsawi. She’s concerned about the documents that her team has been receiving from the government to show to Hawsawi. The redactions differ greatly between the copies for the defense team and the copies that the team can share with Hawsawi, to the point where she isn’t even sure what she can discuss with her client. An irritated Judge Pohl asks Colonel Robert Swann, for the prosecution, to explain the apparently inconsistent variations between the two sets of redactions.

“Sir, I have no defense,” says Swann. “You’re absolutely correct. There is no methodology.”

Judge Pohl tells Swann to get the redactions fixed.

Bin Attash complains that the translation isn’t working. “That’s okay,” says Judge Pohl—the court will “hopefully” get it fixed during the recess.

When the court reconvenes after lunch, Binalshibh is back in the courtroom and newly quiet: no complaints or arguments for Judge Pohl this time around.

Connell jumps right in with a complaint about the redacted copies of the Detainee Information Systems (DIMS) records that the government has been providing. From 2006, when Baluchi entered Guantanamo, through 2014, the DIMS records given to the defense team have a large column entirely redacted without any explanation. Connell isn’t sure what the redacted information contains, but believes it includes the identities of guards. In the defense’s view, this is a serious problem: under Skipper v. South Carolina, a prisoner’s good behavior can serve as mitigating evidence in capital case. Connell doesn’t hold back: “By redacting all witness information out of these DIMS records, the government is denying us access to that type of information in violation of the Eighth Amendment.”

Bormann and Lechelier speak up and agree with Connell. Lechelier also adds that DIMS records have not always been classified, saying that she received classified SECRET DIMS from 2008 through 2009 and then unclassified DIMS through 2011. She believes that the government has “upped it to a classification level in order to avoid … our being able to show it to Mr. al Hawsawi.”

For the government, Swann argues that the switch from classified to unclassified to classified DIMS was linked to whether or not the government had received the necessary MOUs from the defense teams. He and Judge Pohl have an increasingly opaque back-and-forth regarding an (unidentified) document that’s been separately marked both SECRET/NOFORN and UNCLASSIFIED/FOUO. So which is it? Classified, says Swann. And what is it? We may never know.

Swann then confirms that the redacted column from the DIMS contained the guards’ true names, as well as “sometimes … a force protection measure … location or something like that.” If the defense wants to interview guards as witnesses, he says, they can reach out to the government, which will try to track down the guards by number. KSM defense counsel David Nevin bridles at this: “I just want the military commission to understand that it confers a strategic advantage on [the government] to know who we would like to talk to and to know why we want to talk to them … When we do that, we're revealing privileged defense information.”

Judge Pohl moves on to the last topic for the day, and once again, it’s on the issue of redactions. Connell is arguing that the government should not be allowed to unilaterally make redactions, but rather should have to come before Judge Pohl in order to justify its decisions to withhold information under Rules of Military Commissions. Or, alternately, the government can just provide the defense with unredacted documents.

Before Connell gets into that, though, he has to deal with a bit of a logistical problem. As he’s done many times before, he submitted a set of slides that he’d like to display during his argument to the government for review, and this time the slides have all—inexplicably—come back to him marked FOUO. In Connell’s view, this was done “so that I could not distribute the slides to the public and the media as I traditionally do once they're approved by the military commission.” Judge Pohl says that Connell can display the slides in the courtroom but not to distribute them afterwards, and tells the government to look into the matter. “In the future if things needs to be changed all of a sudden [in a way] that limits the transparency of this commission,” he says, “I'd like to know why before we do it.”

Slides displayed, Connell now turns to the core of his argument. There’s a new case fresh from the Court of Appeals for the D.C. Circuit that he thinks is relevant, American Immigration Lawyers Association v. Executive Office for Immigration Reviews. According to Connell, the D.C. Circuit held that “if the government identifies a record as responsive to [a] FOIA request … the government [cannot] nonetheless redact particular information within the responsive record on the basis that the information is nonresponsive.” His point is that, if the government can’t categorically redact information within a record that’s otherwise responsive under FOIA, it also can’t do the same with “otherwise discoverable material” in a military commission. The determination has go on a case-by-case basis—which is what Connell wants Judge Pohl to help with, and exactly what the government hasn’t been doing with the documents it presents to the defense.

For the government, Edward Ryan breaks in with a suggestion that some of Connell’s slides might have been marked FOUO because the slides within the slides—that is, the pictures of government slides that Connell is displaying on his own slides—were marked FOUO. Mystery solved? Maybe.

Ryan goes on to argue against Connell’s use of American Immigration Lawyers Association on the grounds that this is an issue of criminal discovery, not a FOIA case. The back-and-forth between Ryan and Connell quickly becomes awkward: Connell proudly displays his knowledge and past use of FOIA, while Ryan confesses,“I have spent an entire career trying to avoid statutes like the Freedom of Information Act.” Once they get back onto the Rules for Military Commissions, however, Ryan is on firmer ground.

And that’s that. Judge Pohl wraps up for the day and lines up the schedule for Wednesday, when they’ll talk about testimonial immunity for Abu Zubaydah at the request of Binalshibh. This time Binalshibh will have to be there—or so we’re told.