This Week at the Military Commissions, 3/22 Session: Truth, Emotional Currency, and the Law of War

Military judge Army Colonel James Pohl calls the commission to order at 8:59 AM, noting that none of the five detainees have chosen to attend this morning’s session. Prosecution team member Robert Swann calls an unnamed U.S. Army Captain to testify to the procedures by which the detainees waived their rights to be present, and Judge Pohl enters a finding that the absences both today and yesterday were knowing and voluntary.

The first item discussed is not on the agenda, but Judge Pohl wants to clear up some procedural confusion. Late last year, the government filed a notice of intent to offer hearsay evidence, which prompted defendant Ammar al Baluchi to file a response concerning the adequacy of this notice. The original filing was not styled as a motion, and the government has not replied to Baluchi’s response, but Judge Pohl wants to know if the briefing on that issue is complete—a different motion concerning the constitutionality of the rule allowing the admission of that same hearsay evidence is on the docket, and he’d like to address them together. Chief Prosecutor Brigadier General Mark Martins and James Connell, counsel for Baluchi, both confirm that they are ready to proceed on the matter.

But Walid Bin’Attash’s counsel Cheryl Bormann objects, arguing that a notice “does not necessarily trigger the briefing cycle procedure” because it does not require a response, and therefore she is not prepared to argue the issue at the moment. Judge Pohl agrees that the proper procedural vehicle for a response to notice should be a motion, which is a reason for clarifying the procedure going forward. Connell jumps in to note that “diligence never goes unpunished, like good deeds,” and argues that an objection to notice is perfectly appropriate. Though Bormann agrees that this may be this case given the lack of procedural rules about responding to notice—which Judge Pohl promises to establish going forward to avoid “piecemeal litigation”—she asks for the opportunity to file separate pleadings on the matter in the future.

Bormann has one final point: if the constitutional challenge to the rule admitting certain hearsay evidence is successful, the issue of the adequacy of the notice will be moot. Therefore, she says, the issues should be considered sequentially, not briefed all at once, as Connell would prefer. But Judge Pohl is unconcerned about this possibility: “if we spend time on an issue that turns out to be mooted by another issue, so be it.”

A second procedural matter is more quickly dealt with. Guantanamo detainee Abu Zubaydah is scheduled to testify, but “[h]e has two sick lawyers.” Because neither is able to be present, James Harrington, counsel for Ramzi Binalshibh, requests that the testimony be delayed until May, and Judge Pohl agrees.

Next up is 425, which concerns the decommissioning of a government black site without notice to the defense. (Abd al-Rahim al-Nashiri’s defense counsel argued a motion for discovery on this same issue at a military commission hearing earlier this month.) The government has filed a notice of correction to the record related to the decommissioning, altering its story about the events resulting in the lack of notice. Judge Pohl wastes no time in granting KSM’s attorney David Nevin’s motion for a delay to respond until after the defense receives discovery.

But there is a further issue, which is al Baluchi’s objection to the notice. Connell takes us back to 2012 to explain the backstory of the black site saga. The government sought to decommission an unidentified black site over the objection of the defense, which wanted access for purposes of discovery, and the military commission issued an order preserving the site. Two years later, the military commission approved the decommissioning, but the defense team was not given notice. The government’s filing in 425 faulted “miscommunication and/or lack of communication between the prosecution and the military judge” for the delay in providing the defense with a redacted order, but discovery of prosecution emails indicated that the prosecution had in fact opposed turning over the order. In December 2016, the government filed the Notice of Correction to the Record at issue here to fix the factual inaccuracies in their original filing. As Connell reminds the commission, “most of the related factual claims in 425C did not turn out to be accurate, and that which is true never changes.”

Connell asks the court to “strike 425R as procedurally incorrect under the rules of the military commission.” He argues that the government acted improperly (1) by not securing leave to file a notice of correction and (2) by failing to specify the changes to the assertions in the original filing. Also, he points out that any changes to the trial conduct order determining the procedure for requesting expert witnesses, which the commission considered during the hearing yesterday, would affect 425 as well because the defense was previously denied expert assistance on the matter. Connell will need to resubmit the request if there are changes. “That’s fine,” agrees Judge Pohl, acknowledging that it was denied without prejudice.

Marine Lieutenant Colonel Sean Gleason, Mustafa al Hawsawi’s counsel, stands up next to argue a motion to compel discovery of his client’s threat assessment rankings during his detention in Guantanamo. In addition to the Joint Task Force (JTF-GTMO) documents recording al Hawsawi’s behavior, he also seeks discovery of the briefs given during turnover to incoming camp commanders. “This is evidence that will be favorable to his mitigation case as it will show that Mr. Hawsawi has been a compliant detainee over his time here at Guantanamo,” he explains, and the defense has only received heavily redacted Detainee Information Management System (DIMS) reports and slides from a single turnover brief presentation.

For the prosecution, Swann responds that the 2500 pages of DIMS records they have produced are comprehensive—“a daily account of exactly what the accused does in-cell each and every day”—and “there is nothing more to give [the defense].” Regarding the turnover briefs, he maintains that records beyond the slides already produced were not kept. Judge Pohn sums up the government’s position: “[W]e give you what we have and the rest just doesn’t exist.”

Gleason replies that the redacted DIMS records contain no information about al Hawsawi’s disciplinary status, though this information may be available in the unredacted versions to which the prosecution has access. Later, on rebuttal, Swann counters that the redactions merely hide “the true name of the individual that is making the entry into the DIMS that day.” But Baluchi also doesn’t buy the government’s position on the absence of other turnover briefs. Major Jason Wareham explains the defense’s view:

[T]he government’s position that commanders in Guantanamo Bay responsible for the safety, security, and governance of, what the government's position is, some of the most dangerous people in the world, simply sit and talk to transfer information between each other relevant to the assumption of command is ludicrous and conflicts with common understanding of military function.

To that end, I am willing to take the government's representation that today perhaps the prior transfer of authority or pass-down briefs -- TOA as I understand them, briefs may not exist. But we would ask that included in your order is that the government be ordered to inquire of previous commanders whether or not they were given such a brief and when and how those briefs were destroyed, as it may invoke preservation issues and further relief.

Bormann supports the request for an order with a further point: the prosecution has also argued that these records are not discoverable, which would remain an open question without a decision from Judge Pohl. And, sometimes, relevant documents show up after discovery, as was the case for “1600 pages of medical records” in the Nashiri case. Alaina Wichner, representing Ramzi Binalshibh, points out that the defense has been given access to forcible extraction videos of the detainees, but only on the island, and they would like their own copies; Swann responds “there’s a reason sometimes that we don’t give things to people.”

At the end of this packed morning session, the commission takes up a government motion asking for advance notice of which appellate exhibits the defense intends to use as supporting evidence. Prosecution team member Clay Trivett explains that they are “not asking for [the defense’s] argument slides,” but rather notice about the exhibits with adequate time to prepare. This is particularly important, he maintains, where the underlying document is classified, so that the prosecution can answer questions with refreshed knowledge of redacted information.

When Wareham rises for the defense to argue in response, Trivett illustrates his point, observing that he has just received the defense’s argument slides and asking for a moment to review them. Judge Pohl takes this as a convenient time for a recess.

We return to Wareham’s argument for the defense. Exhibit lists are “protected as a thought process of counsel,” he says, and he argues that the military commission has previously recognized the “privileged nature” of slide material prior to use. Moreover, the government seeks this remedy in response to a specific incident where al Baluchi’s counsel found evidence in the record over the lunch break to rebut a statement by the prosecution—in other words, in response to an unplanned use of exhibits from the record. Provision of an exhibit list in advance, then, would not have helped, according to Wareham.

Judge Pohl moves on to 466, a motion to establish procedures for the admissibility of victim impact evidence. Walter Ruiz, who represents al Hawsawi, emphasizes that this motion does not get at the underlying admissibility of such evidence. Rather, he seeks to establish a procedure for witnesses to provide statements to the court “so that the court has an opportunity to review those statements and see if there are any matters in the statements that are impermissible based on the current state of the law.” In response to a question from the bench, he clarifies that this procedure would apply only to witnesses proffering victim impact evidence—this category is “unique to the process” and “potentially dangerous to the accused’s right to a fair trial.”

In support, Ruiz lists a series of cases in which such procedures were deemed appropriate. An instruction to disregard impermissible testimony would not be an adequate solution, he maintains—it would be like “throwing the skunk in the jury box and then asking them to disregard the smell.” And he worries that the prosecutors have already evinced a tendency to “use [the] emotional currency of the loss and the suffering to buttress their legal arguments.” All relevant evidence will still be admitted, Ruiz ensures, but Judge Pohl will have more time to “determine what is probative, what is prejudicial, what is more probative than prejudicial.”

Prosecutor Edward Ryan responds to this argument strongly:

[S]ome of the evidence to be presented at trial will show that four of the five accused in this case gathered together in a faraway land on September 11th to watch on television as the fruits of their labor were broadcast, as if to watch their own personal Super Bowl.

Ruiz, seizing on this as an example of the prosecution’s use of “emotional currency,” objects as to the relevance of this metaphor. Judge Pohl allows Ryan to proceed over multiple objections, however, but urges him to “tie it in.” Ryan characterizes Hawsawi’s request as urging “that those impacted most directly…must be restricted because their innocence, their shock, and their pain might have what [the defense] consider[s] to be an unfair effect on a jury.” He further argues that (1) this “admissibility but with a caveat” is unsupported by caselaw, (2) that the categories of appropriate subjects for victim impact testimony are clear from McVeigh, and (3) “it is impossible and not legally required or even desired to remove all emotion from the testimony of witnesses.”

After Ryan’s response, in which he points out that Ruiz “illustrated [his] point precisely” by relying on emotional impact, the commission moves on to 475, an issue of potential conflict of interest among defense team paralegals. Wareham explains that under Air Force promotion processes, paralegals may be “evaluated by a member of the Office of the Chief Prosecutor” for purposes of promotion. Judge Pohl worries about what a potential remedy might be: “What do you want me to do? Change the Air Force System?” Wareham replies that if dismissal and abatement are unavailable, he would ask Judge Pohl to “order the convening authority, as Deputy Secretary of Defense, to instruct the Air Force to assign static allocations to the Military Commissions Defense Office.”

Air Force Captain Brian Brady, counsel for Bin’Attash, supports Wareham with a personal anecdote: “I was universally told by fellow military friends…that [accepting a post in the Military Commission Defense Organization] was a bad career move.” Judge Pohl cautions him that “[p]ersonal experiences of what people may tell you or not tell you is not a useful argument.”

Air Force Major Christopher Dykstra responds for the prosecution, drawing attention to the fact that defense paralegals have actually gotten top promotions from boards with prosecution members. He extols the fairness of the promotion board process: “If the Chief Defense Counsel, General Baker, sat on a promotion board for me, I would have no problem whatsoever…” Judge Pohl has little time for this personal statement, and Dykstra moves on to a discussion of the differences between attorneys, who have attorney-client relationships, and paralegals, who do not. Even if there is a conflict, Dykstra argues, the remedy would be either a waiver from the client or an exclusion of Air Force paralegals from defense work.

After a brief discussion of scheduling issues for the remainder of the week, the commission breaks for lunch, leaving the parties to discuss over the break when they might be wrapped up and ready to leave the island.

After lunch, Baluchi, Bin’Attash and Ali Abdul Aziz Ali join the commission. Bin Attash makes a statement to the commission about the fraught situation between himself and his lawyers:

We put first step on the right direction. If the lawyers abide and commit to what they have said in the next few months, the problem could be solved. But if they do not commit and do what they said, we will go to—back to square one.

With that, the commission considers appellate exhibit 480, Baluchi’s motion for a hearing on his status as an enemy combatant under Article 5 of the Geneva Convention, which Connell states “is the single most complex legal issue” the commission has dealt with so far. Connell argues that the U.S. Army adopted the principles of the Geneva Convention—including the distinction between combatants and civilians—even prior to the official adoption of the Convention itself, and therefore that the motion can succeed under U.S. policy even if the Geneva Convention is unenforceable. Nevertheless, he maintains that the treaty is self-executing. Connell traces the history of applying this distinction from the 18^th century through the Civil War and up until the post-9/11 era, until the creation of a new definition of enemy combatant in the 2004 Wolfowitz Memorandum.

Combatant status under the Geneva Convention and under the Wolfowitz Memorandum are conceptually distinct, Connell argues, and someone like “an al Qaeda operative who’s never been to a training camp” may be a combatant under the latter but not under the former. Therefore, the fact that a Combatant Status Review Tribunal (CSRT) determined that al Baluchi was an enemy combatant under the Wolfowitz test does not decide the Geneva Convention issue. Moreover, Baluchi did not go through the full CSRT process because his appeal was dismissed for jurisdictional issues. Finally, the Military Commissions Act, which bars causes of action under the Geneva Convention, should be properly understood to prohibit only actions for civil liability. Judge Pohl wants to know whether al Balushi would have a right to counsel at an Article 5 tribunal; Connell concedes that he does not.

Marine Major Derek Poteet, who represents KSM, steps in to clarify that Mohammed is not joined on this motion, and therefore he reserves the right to raise similar issues on a later motion. All other defense teams are unjoined on this motion, as well; it “only deals with Mr. Ali.”

For the prosecution, Trivett responds that the commission has already found that it does not have “authority under the Geneva Conventions to grant any individual relief,” and that the Geneva Conventions are not self-executing, per Johnson v. Eisentrager. Additionally, he argues, the Military Commissions Acts of 2006 and 2009 “made clear that they were not to apply.” And the CSRT, which was described in legislative history as “Article 5 on steroids,” was adequate to satisfy any obligation under the Geneva Conventions. At this, Judge Pohl asks if there is “any delta between [the Wolfowitz] definition and the article, the Geneva Convention definition of combatant.” Trivett admits that there is, but says the tribunal finding is significant anyway.

Connell seizes on the government’s first argument that the issue is res judicata as illustrative of “the whole decline/joinder problem,” as the previous determination about the Geneva Conventions did not apply to Baluchi. But Judge Pohl is concerned about what a finding of jurisdiction to order an Article 5 tribunal here would mean—where is the limiting principle of what the commission can order? Connell says that this is “pretty standard fare for a military commission.” With that, the commission takes its final recess of the day.

When the commission reconvenes, Poteet stands to clarify a nonjoinder issue—he wants to ensure that decisions that do not apply to KSM are not res judicata for his case. Judge Pohl explains “if joinder was declined but the issue was litigated and decided…although it wouldn’t be controlling res judicata, you would obviously have the commission’s view of the state of the law as it applied to the first person.” With five defendants in this case, the joinder issue is high priority for the defense teams.

It’s Nevin’s turn to argue next on behalf of KSM. He has asked the government to give notice of any crimes the prosecution intends to introduce at trial that are not charged in the charging instrument, but the government has argued that it can wait until a trial schedule is set to decide when to release that information. Wareham and Harrington join in to emphasize the importance of having time to investigate, and Bormann is careful to clarify that all allegations of prior crimes introduced at trial will require investigation by the defense.

Ryan responds for the prosecution, noting first that the conspiracy charge at issue in the case covers a broad range of activity that will not be subject to such notice requirements. For anything else, Ryan proposes that the prosecution provide notice “approximately eight months or so before trial is actually to commence.” Judge Pohl intercedes to highlight the role of discovery in setting the schedule: “I don’t know what the exercise [of determining a deadline for notice] is worth at this point unless I’m going to be told that discovery is all done.” Ryan downplays the potential for the defense to be blindsided, given the timeframe of the alleged crimes.

Nevin accepts that the overt acts that comprise the conspiracy charge do not come into this discussion, but points out that the prosecution’s intention to introduce other crimes committed during the same time period would still need to be disclosed to the defense sufficiently far in advance.

Suzanne Lachelier argues the subsequent motion on behalf of Hawsawi—a motion to dismiss the charges of murder, destruction of property, and infliction of serious bodily injury in violation of the law of war. This last clause poses the problem, according to Lachelier: “nowhere in the MCA does it define what ‘in violation of the law of war’ means.” Because of this, the statute does not “prescribe ascertainable standards” and is in violation of the Fifth and Sixth Amendments. In other words, the part of the statute under which Hawsawi is charged is void for vagueness, citing Morales. Poteet emphasizes that this is not an as-applied challenge to the statute, which should still be available regardless of the decision on this motion.

The government’s response, delivered by Martins, underscores that only the suspension of habeas corpus and the ex post facto clause have been applied to military detention cases—the former in Boumediene, and the latter because the government took the position that it applied in Bahlul. Therefore, Judge Pohl should merely “assume without deciding” the constitutional issue of whether the specific due process rights protecting against vague statute apply here. It also highlights that the MCA resulted from “extensive interbranch dialogue,” and thus the executive action here falls into Youngstown’s category I. But Judge Pohl is concerned about how the government will prove the violation of the law of war element, and rejects Martins’ answer that “attacking civilians has always been part of…the common law of war” as insufficient. Martins looks to Quirin for support—there will be enough evidence here, as there was there, to demonstrate a violation. Finally, Martins points out that the MCA is limited by its application only to “alien unprivileged enemy belligerents,” and that it is applied carefully by “officers of the Federal Government,” not by “beat cops who have to make split-second decision,” as was the case in Morales.

At long last, the commission addresses the schedule for the remainder of the week, which prompts the usual discussions and objections from the various parties. The week is more than halfway over as Judge Pohl gavels us out at 4:50, but there’s still a closed session and an open session to come before the weekend.