This Week at the Military Commissions, 12/12 Session: Discovery Laundering

After a week’s worth of pretrial hearings in the 9/11 case, the activity continues at Guantanamo with another round of hearings in the USS Cole case. Military judge Air Force Colonel Vincent Spath begins with a review of the government and defense counsel present for the hearing, including Mary Spears, a new addition for the defense. Judge Spath asks Abd al Rahim al Nashiri for his assent to Spears joining his defense, and Nashiri responds with a thumbs-up.

For the record, the judge runs through the administrative backlog during his earlier 802 conference with both parties. With that out of the way, he then turns to the testimony of retired Colonel Edward Sheeran (no relation), deputy chief of staff at the Office of the Convening Authority (OCA). Sheeran is testifying by video link from the Mark Center in Virginia.

The defense team, which has called Sheeran to the stand, begins the questioning; Richard Kammen takes the lead, starting off with an inquiry about Sheeran’s involvement with “Change 1,” an OCA order that would have required military judges to move to Guantanamo until the conclusion of trial. The order was revoked following a storm of controversy that also led to Judge Spath disqualifying the OCA employees who had worked on the requirement, which the defense is arguing represented an attempt by OCA to exert unlawful influence over the trial judiciary. Sheeran says that he was generally aware of the discussions surrounding the change, but had no role in the decisionmaking on Change 1.

Kammen moves on to questioning Sheeran about his relationship with Lieutenant Commander Stephen Gill, a former legal advisor at the OCA who departed the office following both concerns over his erratic personal behavior and concerns Gill himself raised about the possibility of unlawful influence by members of the OCA who had been disqualified from Nashiri by Judge Spath but continued to work on the case. Sheeran testifies that Gill joined the OCA in January 2015, after Sheeran requested him from the navy by name based on his qualifications for the job. Sheeran did not speak with Gill’s references.

Sheeran tells Kammen about Mark Toole, a deputy legal advisor at the OCA whom Judge Spath disqualified from Nashiri and about whose continued involvement in the case Gill had raised concerns. As far as Sheeran remembers, Toole and the other disqualified advisors took steps following the judge’s order to wall themselves off from the case and cease receiving information on it. Sheeran did, however, hear from Gill about Gill’s concerns that Toole was continuing to attend meetings where Nashiri was discussed. Sheeran states that he spoke to Toole about the matter, though he admits to Kammen that Toole did not deny Gill’s accusations.

Kammen begins probing about the circumstances of Gill’s departure from the OCA: Gill left the office after trouble with his performance related to a troubled divorce and a failure to renew his security clearance. The defense seems to be trying to suggest that Gill may have been forced out for raising questions about unlawful influence by Toole.

After a brief “health and comfort break,” Sheeran iscross-examined by Navy Lieutenant Paul Morris. Once again, Sheeran runs through the OCA’s response to Judge Spath’s disqualifying order, telling Morris that the disqualified advisors gave every indication of disentangling themselves from the case.

Judge Spath finishes up the morning’s session by dismissing Sheeran, but not before warning him not to discuss his testimony with anyone until the court has issued a ruling on the relevant motion. And with that, it’s time for lunch.

After lunch, another defense witness takes the stand: Lieutenant Colonel Patricia Lewis, a former assistant legal advisor at the OCA. Navy Lieutenant Commander Jennifer Pollio begins with a direct examination on behalf of the defense, questioning Lewis on how the office responded to Judge Spath’s disqualifying order in response to Change 1. Lewis was among those legal advisors disqualified by the order: “We just stopped working on anything involved with United States v. Nashiri,” she says.

Lewis runs through the procedures put in place to ensure that the disqualified advisors didn’t come in contact with the Nashiri case. It seems that Gill didn’t feel these procedures were sufficient and felt that the advisors in question still had impermissible access to the case through the office’s case management system. Gill spoke with Lewis about the issue, telling her that “he didn't think that we should even be saying the name ‘Nashiri.’”

Judge Spath dismisses Lewis from the stand, giving her the same warning as he did Sheeran. The court takes another recess.

When the court returns to session, the prosecution has filed out, to be replaced with the special trial counsel appointed to investigate possible misuse of classified information by the defense: Major Michael Lebowitz and Karen Hecker. Lebowitz begins by laying out what he’d like to achieve: destruction of the evidence he believes the defense obtained impermissibly, and confirmation that this impermissible access is ended for good. Chief Defense Counsel Brigadier General John Baker has issued an order to prevent further access of this sort, but Lebowitz wants an order from Judge Spath as well.

Judge Spath seems skeptical as to why he needs to duplicate Baker’s order. For that matter, the defense has already indicated their intention to stop the “browsing” of evidence that led to the problem, so the judge doesn’t see what Lebowitz is requesting. He’s also not pleased with the government IT failure that created this problem in the first place—specifically, a computer glitch allowed the defense to examine information that should have been beyond their reach:

I don't want to cast aspersions on who is running that program, but maybe the government should be capable of limiting access to classified information from people in the manner that one would hope.

Anyway, the judge says, the defense counsel at issue all have Top Secret clearances. This is a very different question than if they had accessed the information without clearances or had leaked it to the public. Can’t he trust them with classified information?

Lebowitz seems to be arguing for the integrity of the discovery process: security clearances aside, he suggests, the defense should be following the proper procedures of requesting information from the government.

MJ [Col SPATH]: But here is my question: What should the defense counsel do at that point? Should they remediate and destroy it and stop, or should they come to me and say, Your Honor, here is something we got, was never turned over in discovery, we were entitled to it, and then we have a motion hearing on that before I order the remediation?

STC [MAJ LEBOWITZ]: It almost sounds like a form of discovery laundering. I just made that up

Judge Spath suggests that the special trial counsel should work out the issue with the defense team and the Chief Defense Counsel before asking him for an order.

Kammen asserts that the defense will “absolutely, positively” follow any order to comply with Lebowitz and Hecker’s investigation. He flags the defense’s concern regarding Lebowitz’s former role as an attorney for the prosecution in the 9/11 case and requests further discovery both on Lebowitz’s appointment and on the “firewall” between the prosecution and the special trial counsel. The defense is also worried about immediately indicating their willingness to comply with Lebowitz and Hecker, Kammen says, because of concern over whether doing so would amount to admitting to a crime.

“That’s a valid concern,” says Judge Spath. Given the activities of other agencies, “we are just willing to have this pinky swear together in the room” that the defense will be treated well.

The judge then turns back to Lebowitz to clarify the precise scope of his investigation. Lebowitz explains, “[O]ur authorization is limited to the material obtained outside of the discovery process through the use of classified systems.”

“All right,” says the judge. He suggests that the court will likely continue to face this issue during the Nashiri hearings scheduled for March and promises Lebowitz a response to his motion, though he can’t give specifics on timing. With that, the court heads into recess until tomorrow.