This Week at the Military Commissions, 10/12 Session: “An Anomaly in the Law”

Wednesday’s session opens up with Jim Harrington, counsel for Ramzi Binalshibh arguing in favor of 152JJJ, a request for testimonial immunity for Abu Zubaydah in connection with Binalshibh’s motion to hold the guards in contempt for poor camp conditions. Harrington recites the criteria for granting testimonial immunity: that the witness intends to invoke a right to refuse to answer a question, that the government would receive a tactical advantage from denying or objecting to immunity, and that the testimony pertains to otherwise unobtainable evidence.

The first prong was not at issue: Zubaydah’s attorney on June 2 had advised the court that he would invoke a right not to answer a question. Government overreach is also present because the government does not play to charge Zubaydah for anything; they're just trying to keep him silent about torture. And Zubaydah's evidence is critical, Harrington says, because he can establish that Binalshibh is not lying about camp conditions.

Harrington tacks on an additional constitutional argument. Murphy v. Waterfront Commission, 378 U.S. 52 (1964) held that a witness in a trial to hearing who is directed to answer a question and granted immunity is given de facto immunity, even if there was no legal basis for giving the witness immunity in the first place. After some back and forth with the military judge, Col. James Pohl, Harrington clarified that this immunity would protect Zubaydah in all U.S. courts.

Finally, Harrington argues that if Judge Pohl were to deny immunity, he should still allow Zubaydah to testify and then strike his testimony if it is not material, clearly exculpatory, and non-cumulative. Federal courts allow provisional testimony away from jurors fairly often in order to establish a record.

Next up is Ed Ryan from the prosecution. He opens by poo-pooing the value of Zubaydah’s testimony regarding Binalshibh’s statements that guards have harassed him with interfering noises and smells that prevent him from sleeping. The prosecution does not deny the existence of the smells or noises—it just blames them on maintenance problems. Zubaydah cannot speak to that issue.

Ryan agrees with the defense on the framework for determining testimonial immunity and that the first prong is met, but argues that the requirements for the other two prongs have not been satisfied. This is not a case of government overreach, he says: the government had good reasons to refuse Zubaydah immunity. There was a real risk that Zubaydah might incriminate himself in order to shield his compatriots—he is, after all, “a self-avowed enemy of the United States testifying on behalf of another self-avowed enemy of the United States.” The government might also decide to prosecute Zubaydah later on.

Nor does this case meet the third prong of the test. Testifying about the conditions of his confinement has nothing to do with actual charges, so nothing Zubaydah said would be “clearly exculpatory.” As for Murphy, that was just “sort of an anomaly in the law, in the sense that it's an invitation to do that which everyone knows shouldn't have been done.”

Harrington makes two points in rebuttal. First, granting Zubaydah immunity and hearing his testimony is the best way to determine if he is biased or not. Second, attacks on Zubaydah’s character are orthogonal to the motion because witnesses are often “terrible” people, yet courts still hear their testimony. The argument over, the commission recessed for fifteen minutes.

***

Returning at 10:38 am, James Connell, counsel for Ammar al Baluchi stood up to argue 449: that the commission has the power to compel witnesses to come to Guantanamo to testify. The Regulation for Trial by Military Commission § 13-5.b denies the commission this power, but that regulation also contravenes the statute at issue: 10 U.S.C. 949(j)(a)(2)(A) specifies that the commission has powers to compel witnesses similar to criminal courts, and its jurisdiction runs anywhere that the government has jurisdiction. In Tiede, witnesses were brought to a trial in Berlin. But Connell did not know whether any witnesses were involuntarily brought from the United States, which was the real issue in Col. Pohl’s view. 28 U.S.C. § 1783, though, does allow the United States to compel U.S. citizen witnesses abroad to return to Untied States proceedings.

Conell insists that the substitute proposed by the government—video conferencing—is insufficient, because the Sixth Amendment requires the live presence of witnesses. Conceding that no cases were directly on point, Connell cites United States v. Daniels, in which a court of military appeals held that one cannot have a fair trial without the ability to bring witnesses, and Gillars v. United States, a D.C. circuit case from 1950 noting that a court that lacked the power to subpoena witnesses would present constitutional difficulties.

Connell then rejects the notion that this issue is not ripe. In Quinones, the Second Circuit held that a pretrial challenge to novel evidentiary schemes met Article III requirements because it was a legal dispute and there was enough adversity to satisfy separation of powers. But regardless, as a matter of constitutional avoidance, the court should address the interpretation of 10 U.S.C. 949(j)(a)(2)(A) before addressing the ripeness issue.

Connell closes with a constitutional argument, saying that if his interpretation of the statute is wrong, then the commission’s lack of power is a structural error that would require dismissal. Boumediene held that constitutional rights apply in Guantanamo unless they are impractical, and the D.C. Circuit assumed in Nashiri that the defendant would be able to call witnesses. Before Connell sits down, Judge Pohl clarified that the U.S. Marshals Service would have to force a witness to come to Guantanamo if Connell gets his way.

Now it’s Brig. Gen. Martins’ turn. The first problem, he says, is that this motion is not the proper procedural vehicle to dismiss all charges and specifications. Even if it were, the commission should not address any constitutional issues before they are “anchor[ed] to specific facts.” The commission would only have a ripe occasion to challenge video conferencing when that actually happens at trial. Moreover, the cases the defense relies on—Daniels and Gillars—have no bearing, because the video teleconferencing option did not exist in the former, and the latter the witnesses attended the trial voluntarily; the Gillars language the defense cites is just dicta. As for the statutory interpretation issue, UCMJ article 46 is very similar to the statute at issue, and court martial proceedings lack the power the defense is asking for. The defense is really asking for something that does not exist anywhere else in U.S. law: the power to force someone to leave United States territory.

Connell has nothing more to say, and so it’s on to the next motion: 447C. Connell’s position is straightforward: Congress authorized Military Commission Rule of Evidence 803 in 10 U.S.C. § 949a(b)(3)(D), and that rule of evidence and law violate the confrontation clause. The rule specifically creates a new hearsay exception, which goes against Crawford v. Washington, 541 U.S. 36 (2004), which holds that a court cannot expand the hearsay exception on reliability grounds. And the Supreme Court has consistently held that Congress cannot override constitutional rules of criminal procedure. Connell cross-applies his analysis of Quinones to the ripeness of this issue and notes that additionally, a 2003 district court found in United States v. Haynes that a confrontation clause challenge was ripe pre-trial.

Now it’s Martins’ turn again, and he’s not buying the ripeness issue: Courts shouldn’t construe the Constitution in the abstract. He thinks the prosecution is complying with Crawford too. Congress has authorized this rule of evidence, which puts the government at the height of its power.

Connell offers a very brief rebuttal, and it’s on to motions to compel. After some scheduling confusion, they agree to start with 330/419, argued by Lt. Col. Julia Williams, the counsel for Mustafa Ahmed Adam al Hawsawi. She is seeking medical records for the time that Hawsawi was in CIA custody (2003–06). We know from the Senate torture report that he was subject to significant torture during this period, and Williams thinks there must be medical reports that discuss the torture. Ninety-five percent of the summaries of those medical reports are now unclassified, and she wants the actual records. After that introduction, the court does a little more scheduling and recesses for the afternoon.

***

At 2:07 P.M., the commission is back, and Williams starts up again. She wants the unredacted medical reports, not just summaries. Previously, the military judge had indicated that summaries would be sufficient before hearing the defense’s theory of the case. We know about Hawsawi’s specific injuries—“rectal prolapse, fissures or tears of the anus”—that he suffered during CIA detention, but the government has provided no information on those injuries, not even after the Senate torture report came out. The defense also knows that there must be more documents they aren’t seeing, because they found on an open-source CIA website a 22-page document that references Hawsawi 75 times and describes 14 hours of torture. There are no medical records of those 14 hours, even though medical professionals must have been present. Likewise, medical reports in June and July 2003 suggest Hawsawi’s weight dropped 10 kg in a month, but no record explains why that might have happened.

Alka Pradhan, counsel for Ammar al Baluchi, has a similar motion (330) seeking dates of appointment, details on care and procedures, patient statements, and information about his environment and the conditions of confinement. So far, records have been out of order and missing pages, x-rays, and CT scans; morever, the classified summaries miss details about dates and names of caregivers who might be called as witnesses. All this information would shed light on Baluchi's mental and physical state during interrogation. The government, Pradhan says, is therefore not fulfilling its Brady obligations. HIPAA also gives everyone—including non-U.S. citizens—the right to obtain their medical records.

Cheryl Bormann, attorney for Walid bin Attash, is up next “just ... to comment briefly on something.” She expresses concern that there are records relevant to the defense that the government, “in what it claims is its sole discretion, determined ... were cumulative, so they didn’t provide them to [Judge Pohl] with their substitutions.” Judge Pohl needs to make decisions about what is cumulative, Bormann says. Unless the defense can get evidence that a detainee was starved, it cannot argue mitigation.

Robert Swann for the prosecution comes out swinging. If the defense wants to know why Hawsawi lost 10 kg in a month, they could ask him. It’s also possible he never lost the weight: there may just have been a typographical error. He emphasizes that medical records are still classified, and the government is still looking for them. So far, they have provided 190 pages of medical reports and have proposed summaries, and the defense is also going to get plenty of Inspectors General reports to help their case. As for torture, “it’s nice to know” that Hawsawi was only tortured for 14 hours and al Baluchi only made to stand for 82—as opposed to the defense’s original assertion that the two were tortured for three and a half years straight.

Turning to Pradhan’s arguments, Swann says that HIPAA does not apply to overseas detainees. He argues that the records might be out of order, but they are handed to the defense in the order they are given to the government. Names of medical examiners are removed in accordance with Protective Order No. 2, but if defense wanted to call a professional for a given date as a witness, the government could provide that information. And if they want more information about the doctors, they must demonstrate relevance. “That’s the way it’s supposed to work.” As for Connell’s client, the government has not been holding back; it turns over everything that it can find.

Williams stands up to reply. She does not think the government is giving everything they got: if they can find CIA documents on a public website, there must be more out there. She asks Judge Pohl to “order them to produce all the CIA medical records” so that the judge can review each one. The last time Judge Pohl issued an order, the government only looked for the reports about the records, but not the underlying medical records. Those might not be classified anymore, and the government should have to review them. Pradhan pushes against Swann’s suggestion that the defense simply ask Hawsawi why he lost weight: “I can’t remember what e-mails I sent when I had the flu.” Bormann closes out, insisting that the judge put all the medical records through a classification review and suggesting that “the good faith of the government might not necessarily be good faith.”

Swann stands up again to clarify a few more things. The government does not redact medical records; it summarizes any classified material. The judge gets to see the entire document, and Swann thinks they have delivered all they have to Judge Pohl. And finally, many of the underlying medical records are still classified.

The commission then moves on to 409 — the Walid Bin Attash motion. His attorney Edwin Perry is arguing that the government must produce the one million documents found in Osama bin Laden’s home in Abbottabad. Even if just one percent of the documents are material, the other 99 percent would be exculpatory because they would demonstrate “the absence of evidence of guilt or punishment for Mr. Bin Attash.”

Prosecutor Clay Trivett argues against the motion. The prosecution has already provided all evidence that it intendsd to use at trial. A large number of disclosures have already been made, and other stuff they want needs to go through declassification process. At that point, they will make an ex parte submission to the judge. Perry and Pradhan for the defense appear again just to emphasize that they have only received 325 pages of discovery, “nowhere near” the one million documents found.

Things are starting to wrap up now. Connell submits 432 on the briefs. Trivett decides that 335 is inappropriate to address now.” So the court moves on to the final motion of the day—434, a request for interrogation notes and audio, video, and transcripts of Mohammed al-Qahtani’s interrogations. For the defense, Lt. Col. Sean Gleason explains that the prosecution had earlier agreed to provide these materials, but they have not given a date of when they will produce everything, and other requests have been refused. Details on interrogation is needed for jurors to consider “proportionality and equity” in a capital case. Counsel for KSM David Nevin adds that, in capital cases, it is a mitigating factor of similarly-situated defendants received a lesser punishment, and al-Qahtani’s prosecution was of course dropped. So getting information about the interrogation would be helpful in making this mitigation argument.

Judge Pohl cuts off Trivett early in his response, telling him to “cut to the chase. Tell me what you didn’t give them.” The answer: ten statements from al-Qahtani, but those are in the declassification process. The prosecution has no more information about al-Qahtani’s treatment, but other agencies might. Judge Pohl is skeptical that DOD would have decided al-Qahtani could not be tried on the basis of his treatment “with no paper trail,” and Trivett later admits that the prosecution have not asked the convening authority how they that decision was made. Col. Pohl directs him to ask the convening authority and supplement his pleading. Trivett then closes by suggesting al-Qahtani’s treatment is irrelevant for Giglio and Jencks purposes because al-Qahtani is not a prosecution witness.

Nevin gets exasperated: “This is the kind of thing that keeps us up at night.” He says that suggesting that other agencies might have the documents is no excuse: Brady requires the prosecution to look beyond its own office. Trivett “take[s] exception” to the notion that “I just look around the four corners of my office” for discovery material, and agrees with Nevin on the legal standard. Judge Pohl requires him to update the commission on what they find by October 28.

With that, the motions are done for the day, the commission begins scheduling other motions, and decides that Thursday will be a classified session. Detainees and the public will be let back in on Friday.