This Week at the Military Commissions, 12/7 Session: “In Light of Political Events”

The court reconvenes for the last open session this week, with KSM and Hawsawi still absent. After military judge Colonel James Pohl establishes that the two voluntarily waived their presence, David Nevin speaks up for KSM, beginning the day with a motion to compel discovery on the government’s destruction of evidence at a CIA black site. He’d like the government to provide the defense with “everything that have” documenting why the defense teams weren’t told about this plan before it took place.

Judge Pohl breaks in to ask if Nevin plans to bring this up during Friday’s closed session, during which the court will hear arguments based on classified information. Nevin says yes, but there are some things he wants to say first in open court. His point is that the government’s excuses are mutually contradictory: the defense has been told both that the government never promised it would alert defense counsel before destroying the black site, and that the government intended to give defense counsel notice but failed to due to a miscommunication of some sort between the prosecution and the trial judiciary. Nevin wants Judge Pohl to compel discovery so he, and the other members of the defense, can figure out what exactly happened.

For Ammar al Baluchi, James Connell adds his take. He’d like to argue in support of the motion, but he blames the government exclusively, as opposed to Nevin/’s distribution of blame across the government and the judge. He was the one who figured out that evidence had been destroyed in the first place, and he notes that he, unlike the government, has turned over all his emails and notes on the subject to Judge Pohl. He also adds that, if the government had provided “timely notice” of their plans ahead of time, the defense would have been able to file a motion to reconsider or to preserve evidence.

“Had we had notice, obviously there would have been much more litigation,” says James Harrington for Ramzi Binalshibh. “It may not have been successful litigation, but [there] would have been substantial litigation on this point.”

James Swann steps up to defend the government. He takes issue with the defense’s contention that the black site evidence was “destroyed,” declaring instead that it was “preserved and substituted” in the form of a video recording of the “decommissioned” site. When pushed by Judge Pohl, he admits that the defense should have received a redacted copy of the order. “We actually thought that maybe someone had that responsibility,” he says.

Nevin doesn’t buy it. Substitution is not sufficient, he says:

We are talking about—we are talking about Brady material. We're talking about exculpatory material helpful to the defense, lessening the sentence. We were obligated to be provided with that. They say it was substituted? 949p-4 and 949p-6 require that the original be preserved in the record of the court so it can be examined by an appellate court. They destroyed it. They tossed it out the window, that right.

After a brief debate over whether or not the defense can call an unnamed witness over a government objection, Judge Pohl moves on to argument over a defense motion to compel release of complete medical records for all five defendants. For the record, the judge helpfully clarifies that Connell has brought in a visual aid: “ a three-shelf cart stacked with various heights of paper.”

Connell notes the different types of medical records and flags a variety of records that he’s missing for Baluchi. He tells Judge Pohl that he doesn’t mind if the government provides him with redacted records containing blacked-out names to begin with, as long as they hand over the records in the first place.

Cheryl Bormann for Walid bin Attash, James Harrington for Ramzi Binalshibh, and Nevin for KSM all add their assent to Connell. For Hawsawi, Army Lieutenant Colonel Jennifer Williams adds that her team is still missing their client’s medical records from 2003 through 2006, while he was held at a CIA black site.

Swann expresses his surprise. He’s happy to hand over the records without a court order, he says: “I am engaged in having the records gone through and turning them over to the defense.” And with that, Judge Pohl gavels the court into recess.

When the court returns, Judge Pohl takes up a defense motion to compel discovery regarding Mohammad al-Kahtani, the “20th hijacker.” Marine Lieutenant Colonel Sean Gleason, counsel for Hawsawi, tells the judge that the defense has yet to receive recordings and transcripts of Kahtani’s statements under interrogation, information on the techniques used to torture Kahtani, and records on Kahtani’s treatment. Hawsawi’s defense team needs this information in order to fully investigate Kahtani’s relationship with Hawsawi, Gleason says.

It seems that Hawsawi’s counsel may be looking to argue that it’s not “fair and equitable” for Hawsawi to “face the death penalty when Mr. al Kahtani has faced no punishment and has not been referred to a commission.” Key to this exchange is the fact that the government has not brought charges against Kahtani because the evidence against him was obtained through torture and is therefore inadmissible.

For the government, Clayton Trivett responds, “We did provide two reports that have a tremendous amount of information on how [Kahtani] was treated while in DOD custody.” In other words, that’s DOD as opposed to CIA, which had custody of Hawsawi when he was tortured.

Judge Pohl turns back to Connell, who is presenting a motion to compel the production of a full copy of the Senate Select Intelligence Committee’s “torture report,” fewer than a dozen copies of which now exist. “That situation has become even more important in light of political events,” he says, pointing to three reasons that have given him cause for concern: first, the fact that the CIA inspector general’s office accidentally destroyed its copy of the full report; second, the government’s destruction or “decommissioning” of black site evidence, as discussed earlier; and, last but not least, the election of Donald Trump:

The new administration has made statements promising waterboarding or worse, and there are many reasons to believe that it is hostile to preservation of the report—since both the legislature and the executive will be under control of persons who have expressed their displeasure with the report, there is a real reason to suspect that the report could be destroyed.

Connell wants Judge Pohl to request a copy of the report from Congress and order the Department of Defense to maintain its copy as well. He’d like the judge to begin by sending a message asking if Congress will independently allow production of another or whether it will assert legislative privilege against this. It’s not clear that Congress would assert its privilege against the production, but Connell wants to be sure.

At this point, both Nevin and Harrington chime in to assert that the report contains crucial mitigating evidence in KSM’s and Binalshibh’s cases. Harrington emphasizes that the defense isn’t asking that the full report be released to the world, but only that it be preserved for future reference. (Currently, the defense only has access to the report’s unclassified executive summary.)

Now it’s Chief Prosecutor Brigadier General Mark Martins’ turn to push back. He strongly objects to the motion, but when Judge Pohl pushes him on whether or not the Department of Defense still has a copy of the report, he clearly doesn’t want to answer and descends into a a string of what Nevin will later characterize as “non sequiturs.”

MJ [COL POHL]: General Martins, the government sometimes makes this stuff much more difficult than it needs to be. If you simply tell me that the Department of Defense does not have this document, then I don't need to worry about it.

Connell points out that Martins’ refusal to answer the question is exactly why the defense is concerned about the status of the report and would like a copy preserved. With nothing resolved, the court breaks for a recess.

On return, Bormann petitions Judge Pohl for something comparatively mundane next to the torture report: a misspelling of her client’s name. After a great deal of research, she has determined that Walid bin Attash’s name should actually be transcribed as Walid bin Atash. She’s asked the government for a spelling change, but they’ve refused, for unclear reasons—especially because the government previously tweaked the spelling of KSM’s name with comparatively little fuss.

Judge Pohl questions Swann, who seems to have decided that the subtraction of a “t” is a worthy hill to die on. He sticks to his guns. “It just seems to be an unnecessary inconvenience eight years after the fact or even five years after the fact,” he says.

The judge tells Bormann and Swann that he’ll take the matter under advisement. And that’s all for the 9/11 case in open court this time around: the court will reconvene on Thursday for a closed session without the detainees, and for a further closed session on Friday. Notably, shortly after the session closes, Judge Pohl issues a one-page order requiring the government to determine whether the Pentagon has maintained its copy of the SSCI report.