This Week at the Military Commissions, 12/6 Session: Please Don’t Discuss That Unclassified Document

Military Judge Colonel James Pohl gavels the military commission back into session, this time without the presence of Khalid Sheikh Mohammed and Mustafa al Hawsawi. Hawsawi has opted to stay in his cell for the medical reasons discussed yesterday, and KSM has opted to meet with his lawyers instead.

The court jumps right in with a discussion of Chief Prosecutor Brigadier General Mark Martins’s decision to appoint special trial counsel to investigate the defense’s possible mishandling of classified information. At issue is a computer glitch that allowed the defense to view classified information that the lawyers should not have been able to see when they signed on to secure government systems.

No one likes to have special counsel appointed to investigate them, but the defense team is upset for another reason: Michael Lebowitz, one of the two special counsel, had previously worked as a prosecutor on the 9/11 case earlier this year. Martins reassures Judge Pohl and the defense that the prosecution and the special trial counsel have worked to raise a
“wall” between them,” ensuring that no information sharing will take place.

Judge Pohl calls a quick recess, during which the prosecution files out of court and Lebowitz and his fellow counsel, Karen Hecker, file in. After some confusion regarding housekeeping matters, KSM-lawyer David Nevin raises his concerns to Judge Pohl about Lebowitz and Hecker’s work. The defense has been blindsided by this investigation, he says; defense lawyers certainly didn’t intend any wrongdoing, and “if we have accessed material that we were not authorized to access and that we are not authorized to possess, we will remediate it, and there shouldn't be any doubt about that.” The defense team has “been advised at all times that all of the browsing and all of the downloading and everything that occurred was utterly authorized and completely authorized.”

Defense counsel ask Judge Pohl for an eight-week extension in order to figure out what, exactly, Lebowitz and Hecker want. Lebowitz does his best to clarify: He’s looking for the defense to clarify that it did indeed see the information in question and then commit to remediating the situation by destroying the offending data.

The problem is that now that the defense has seen the information in question, the team feels it should be able to at least argue before Judge Pohl as to its right to hold onto the material. To do otherwise would be a disservice to the clients, Nevin says.

Judge Pohl grants the defense motion for an eight-week extension to file its responses to special trial counsel’s pleadings. And with that, the court heads into recess.

With the court back in session, Walter Ruiz is up for Hawsawi. He’s returning to yesterday’s argument, asking Judge Pohl to allow the defense to show unclassified discovery information to pro bono defense experts and consultants. Nevin chimes in to agree, as does James Connell for Ammar al Baluchi. The problem, they say, is that the existing protective order only allows the defense to share discovery with “experts or consultants officially retained at government expense by the accused”—which leaves out pro bono consultants, including many academics who don’t want to be retained by the government as a matter of professional integrity. As Connell describes, the defense ends up in a bizarre situation:

I can show the general discovery materials to the expert in person, but I cannot provide them to them in the sense of say e-mailing. So if I am speaking with an expert and I get past the point of introduction, talking with them on the phone, that sort of thing, and I want to talk with them about our specific situation, I can't e-mail the pages of discovery that's relevant to their expertise. Either I or one of my colleagues has to get on a plane and show them the material and then take it back away from them.

Instead, Connell suggests, Judge Pohl should amend the order to allow pro bono consultants to sign a non-disclosure agreement granting them access to material.

For the government, Clayton Trivett argues that this prohibition exists for a reason: “it’s about accountability and protection of the government information in the documents,” which is very difficult to enforce once an electronic version has been distributed. He asks Judge Pohl not to change the order, pointing out that the defense is always able to petition the judge for relief from the requirements as the order now stands.

The judge declines to rule one way or the other, but he does clarify to Ruiz that the order doesn’t prevent him from sharing medical information on Hawsawi with pro bono experts as long as the experts don’t hold onto the information afterwards.

After a recess for lunch, Judge Pohl moves on to argument on a motion regarding defense access to the “torture memos.” Connell is all set to argue, but Chief Prosecutor Martins is concerned about Connell speaking on the matter in open court; he wants to discuss this with Judge Pohl ex parte and in camera first.

The judge lets Martins have his say, but then moves on to Connell, who cuts straight to the chase after Martins spends a few minutes rifling through his documents to make sure he’s not about to bring up anything classified. Connell argues that the government has effectively conceded the defense’s motion to have access to the memos by routinely failing to object to the defense’s request for access and declining to provide any reasons why the defense should not have access. Judge Pohl had previously warned the government that he “would treat government silence on this topic as a concession.” And since the government has provided nothing but silence, Connell feels that the judge should order that the defense be granted access.

Martins reiterates his concerns about having a substantive discussion on the issue in open court, and Judge Pohl allows that they’ll take up the motion in a closed session on Friday. But before the court moves on, Martins wants to be clear: the government has not conceded the motion. Rather, it’s still in the process of working through the memos to determine what is and is not discoverable by the defense.

With the issue of the memos shelved until Friday, the court takes up a motion on the government’s handling of evidence. For Ammar al Baluchi, Air Force Lieutenant Colonel Sterling Thomas reviews the defense’s concerns over a search of Baluchi’s cell in which the guards seized documents containing privileged information; the documents were eventually returned to Baluchi with the proper identifying stamp that they’d been lacking, but Baluchi’s defense is concerned that the government reviewed the substantive contents of the notepad in question. He asks Judge Pohl for an order requiring that in the future, such unstamped privileged documents will simply be stamped and returned. Nevin breaks in to agree.

For the government, Army Colonel Robert Swann doesn’t see the problem; Baluchi “lost nothing” in the end, he says. And the guards are only trying to deal with the detainees’ habit of sharing information that hasn’t been stamped for them specifically, so KSM might end up with information stamped as for Baluchi in his cell. This “causes enormous problems.”

Suzanne Lachelier chimes in for Hawsawi on a motion she previously deferred, asking for Judge Pohl to weigh in regarding whether the government has followed proper classification procedures on a motion for relief that would allow “getting investigative work done that could be lifesaving to” Hawsawi. She initially submitted the motion as unclassified, only to have the government unexpectedly declare it to be classified. Now she’s unable to show it to Hawsawi himself, even though it involves an investigation into potentially mitigating evidence in his case. “This does have an effect on his Sixth Amendment right to participate and assist in his defense and be aware of what's being done in his defense,” she argues.

Marine Major Derek Poteet pitches in for KSM, saying that his client is also affected. He’s barely through his first few sentences before he mentions that the classified motion relates to conduct at a CIA black site and Judge Pohl asks him to constrain himself to “generic classification” questions only. But that doesn’t work for long: Poteet quickly moves into an argument that Judge Pohl should consider himself competent to examine classification matters here because of the illegal activity that took place over the course of the CIA’s rendition, detention, and interrogation (RDI) program. “We are not asking you to suddenly utterly declassify the black sites,” he says, “but we are asking you to take an appropriately skeptical view of the purported classification here.”

A skeptical Judge Pohl points out that it’s not his role to declassify information; even the Senate couldn’t declassify the SSCI torture report, he says. It’s an executive branch decision.

Poteet disagrees, saying that this isn’t what he’s asking the judge to do. “I do believe that you have the authority to say that something has not been properly classified.”

After another brief recess, Cheryl Bormann, who represents Walid bin Attash, steps up to argue in support of Poteet. It’s not an issue of whether the decision to classify was itself correct, she says. Rather, it’s a question of whether the classification procedures were correctly followed. As part of “our system of checks and balances,” the court has the power to review the classification process. Lachelier agrees, arguing that the government’s classification procedures have been “arbitrary and capricious.”

Judge Pohl now turns to Army Colonel Robert Swann and asks if he has any response to Bormann on behalf of the government. Swann launches a defense of “the good men and women” who participated in the RDI program and are now being “impugned” by the defense.

Reviewing an example of the “arbitrary and capricious” process that Lachelier is complaining about, the court quickly becomes embroiled in a confusing debate over an unclassified attachment to a government pleading. Despite the fact that the attachment is unclassified, Swann doesn’t want it to be discussed in open court, because Bormann—who produced the original attachment eight years ago—has since been exposed to other, classified information, which might come out if she begins to speak about the document before the judge.

Judge Pohl appears deeply unimpressed. “You are kind of making her argument [about classification procedures as arbitrary and capricious] for her, aren’t you?” he says to Swann.

Because now what you are telling me is we have an unclassified public[ly] releasable document that we can't refer to in court today because it's eight years after it was referred to? Does that make this argument on [the motion] then a classified argument?

The court is still stuck on this problem after it returns from yet another recess. Lachelier complains that the government is “determin[ing] on the fly what is and is not proper discussion in the court,” and Poteet argues that the government is using the classification process “to cover up those illegal acts and conspiracy” that took place over the course of the RDI program.

Despite Judge Pohl’s skepticism, Swann sticks to his guns. They cannot talk about the attachment in open court, he says, because even though the document itself is unclassified, discussion of it might confirm other, classified information.

Fine, says the judge; we’ll take this up in Friday’s closed session. It seems that the schedule for Friday is filling up fast.