This Week at the Military Commissions, 3/24 Session: The “Sudden Downpour” Edition

Military judge Army Colonel James Pohl calls the commission to order, and takes roll, noting that Khalid Sheikh Mohammed and Mustafa al Hawsawi are absent but all other defendants are present.

Prosecutor Army Colonel Robert Swann jumps to it, continuing his direct examination of an anonymous U.S. army captain from yesterday. Swann asks him whether KSM and Hawsawi were advised of their rights to attend, and the captain confirms.

Judge Pohl affirms his finding that KSM and Hawsawi voluntarily waived their rights. After summarizing and resolving Resolution 112 for the record (“it is simply a labeling issue in that the government will give the defense the proper label to put on classified documents”), Judge Pohl addresses the challenge by the defense to the facial constitutionality of the hearsay provisions of the Rules for Military Commissions, which he reiterates is not ripe to address. During the course of an extended back-and-forth on proper administrative procedures, James G. Connell III, counsel for Ammar al Baluchi, says that the defense is committed to addressing as many issues pretrial as possible. “Don’t I know that,” Judge Pohl responds.

Motion 336 is up next. Suzanne Lachelier, counsel for Mustafa al Hawsawi, says that the defense keeps hitting the problem of the guard numbers and dates being redacted from the prison logs as of December 2016, pointing out that the government has been inconsistent in what it redacts. For Walid bin Attash, Cheryl Bormann also points out that the government continues to maintain that unclassified copies of bin Attash’s records that were provided to the defense in unredacted form are in fact classified. This prevents Bormann from discussing the records with her client, which goes against “one of the most fundamental aspects” of Skipper v. South Carolina.

Connell distinguishes his issue from Bormann’s—he’s concerned about what the defense attorneys get access to, not his client. Connell clarifies for the commission that the government is doing its due diligence in working with the defense, but that the government was not complying as quickly as needed. He recommends the judge order the complete and unredacted prison logs.

James Harrington, defense for Ramzi bin al Shibh, gets to his feet briefly to say it’s “ludicrous” for the government not to provide guard numbers when that’s how detainees make their complaints about treatment by the guards. Then KSM defense attorney David Nevin chimes in, calling it an “extraordinary tooth-pulling exercise,” and echoing the request for the judge to enter an order: “You’re talking about wanting to kill them at the end of the day, and you’re telling us you can’t see the information about what they did . . . the tail is wagging the dog here,” Nevin says in frustration.

Upon being called on by the judge, Swann begins to systematically explain what’s happening: He says that the unredacted versions of the prison logs were given after the defense signed a memorandum of understanding (MOU), while they received redacted ones before. He further explains that the detainee gets versions that are further redacted, but that “practically every one of them has the guard numbers in there for the accused,” but don’t have the dates. But Judge Pohl still doesn’t understand how the detainee can prepare their defense without the dates.

As Swann continues, he again says he would accept an order from the judge since the detainee already knows the information in the logs. Lachelier then requests that the defense have the names of the guards as well as their numbers and the dates so they can go and interview them, with a protective order that only the defense can see the information.

Judge Pohl moves the conversation forward to Motion 404, requesting information on Camp VII that was discussed in secret yesterday but still has unclassified elements that need to be discussed. Connell explains to the judge that the fundamental question the military jury will have to decide is whether Baluchi is too dangerous to be kept in prison, so presenting a case against the death penalty requires understanding the nature of the prison. Given Camp VII’s “exceptional security features,” the defense wants blueprints, diagrams, architect sketches, and so on and so forth. Connell also says he needs to understand the conditions of confinement in 2007 and whether they are similar to the CIA black sites, and also suggests that the conditions may lead to inadmissible information obtained through cruel, inhuman and degrading treatment.

Navy Lieutenant Commander Clayton Trivett, Jr. speaks for the government, and says that if the government gives over information about blueprints, “the security folks . . . start thinking about motorcycles and tunnels.” Trivett argues that Connell hasn’t made the case to get the blueprints, but Judge Pohl doesn’t seem convinced, and asks for a better response to the Connell’s future dangerousness argument. “I think that that’s unknowable,” Trivett says in reference to whether Baluchi will actually be housed at Camp VII, though Judge Pohl counters that it would be highly likely, especially given the travel ban for detainees to the United States. Trivett says that regardless, the premise of Connell’s argument is flawed, because the prosecution is going to argue that Baluchi deserves death for his actions as a principal in the 9/11 attacks, not because he is too dangerous to be confined.

Now it’s Connell's turn to respond, and he discusses the importance of the retribution tack the prosecution is taking in seeking the death penalty against Baluchi. First, he says, based on his experience, every juror makes an internal decision about future dangerousness. Second, he has never seen the exterior of Camp VII. Third, he says that Camp VII is “the most secret camp in the world,” but that all the concerns can be addressed in their security structure.

Then Nevin is up: he wants to know whether the government will make a retribution case over a future dangerousness case with KSM as well. Walter Ruiz (for Hawsawi), Bormann and James Harrington (for Binalshibh) all ask for the same information. “This looks like a major meeting here,” Judge Pohl says, so he recesses for 15 minutes.

Judge Pohl gavels the commission back into session with all parties still present, and Trivett answers Nevin’s question by saying the government reserves the right to use evidence of behavior while in custody during sentencing. So, Trivett confirms, they will not present in in their case in chief, but will use it to rebut anything put up by the defense. Judge Pohl doesn’t want to commit either side to something so early on, so he tells Nevin to continue to explore avenues of mitigation.

Judge Pohl asks Trivett whether the government intends to argue “in any way, shape, or form future dangerousness.” Trivett tells him that they’re not willing to say, but clarifies that the government is not precluding a future dangerousness argument going forward.

Judge Pohl then moves on to Motion 442, regarding Hawsawi’s medical records. Ruiz asks Judge Pohl to order the government to provide the defense with medical records that make them current. Judge Pohl calls it a “Xerox” issue, since these aren’t classified documents, and clarifies that the defense will need additional time to prepare with them.

Air Force Major Christopher Dykstra speaks up in response to Ruiz, confirming the judge’s characterization of a “do-loop” whereby current documents must go through review and are not current by the time they get to the defense. Judge Pohl then clarifies that there is a one-month time lag between submission and completion of review, and that the records start out with TOP SECRET level clearance. Dykstra explains that the reviewers always try to get the records down to the lowest classification possible.

After a few exchanges and a long pause, Dykstra offers a solution: The government can get the defense everything up to April 24th, and then work with the defense to allow them to see the records before they are reviewed.

Then we’re on to 478, which Edward Ryan of the prosecution explains is the government’s renewed motion for a trial scheduling order, to establish “milestones” for the parties (plus adding “approximately 90 days or so” to the deadlines in the proposal, with a trial date of June 2018).

As he moves to update Judge Pohl on discovery, Ryan calls the judge a “full partner” in that effort. “Don’t call me a full partner,” Judge Pohl says, “I’m part of the process, but I’m not your partner on discovery.” Ryan tries again, calling the judge a “merely a cog” in the discovery process. Again, he fails. “I’m not sure I like that one either,” Judge Pohl interjects.

Ryan stumbles on as he continues to try to update Judge Pohl on discovery: “[w]e have released approximately 365,000 pages of total discovery,” breaking down just the medical record and prison log numbers by individual defendant. Ryan continues with the Rendition, Detention, and Interrogation (RDI) program, “one of the major themes of this case,” reminding the judge about the ten-paragraph construct from the Nashiri case proposed by Chief Prosecutor Brigadier General Mark Martins, that Judge Pohl adopted. He says the defense 4,700 documents related to RDI, about a third of the 13,000 they plan to provide, some of which Judge Pohl has seen and provided his “edits” to.

Again, Judge Pohl takes issue: “Make sure when you say edits, all I ever direct is additions, okay?” Ryan arrives at the date of September 30, 2017 as the date of full compliance. Judge Pohl raises the issue of there only being one courtroom but several cases (9/11, Nashiri, Hadi, and Al Darbi), and says he sees “a potential train wreck of three cases coming to the same courtroom simultaneously.” The commission could hold trials from 7 to midnight trial on September 11, but that “takes away from the seriousness of the case.”

Connell and KSM counsel Gary Sowards weigh in on the scheduling, with Connell saying that “I think many of the government’s suggestions crowd on each other.” Sowards takes the opportunity to inveigh against the military commission system, arguing that the government “already had a nine-year head start on their prosecution of [KSM]” and that government officials writing affidavits for the court to explain why information is classified may be doing so to cover themselves from legal liability. He says that black site material is needed to test the voluntariness of the confessions, to see if the prosecution should go forward. Depending on how the court rules on Motion 425 (regarding black site material), the case could be dismissed, disqualified through abatement, or changed to a non-capital case—so it would be “inappropriate,” to set a schedule with 425 still pending.

“[T]hat argument could apply to almost any outstanding motion,” says Judge Pohl. In response, Sowards emphasizes that this motion is particularly important because it might foreclose the possibility of the death penalty. Sowards continues on in this vein for a little while longer, mentioning how narrow the government’s Brady material definition is, and then complains about the lack of oversight over the prosecutor relating to discovery. Sowards says that KSM’s experiences in a black sites are core Skipper mitigation evidence, even if the government is not following Brady or Kyles v. Whitley, because KSM had to endure “some of the most horrific conditions of confinement ever recorded,” and his “religious piety and his reliance on God” allowed him to survive the ordeal. “That would constitute significant mitigation,” Sowards says.

Judge Pohl interrupts Sowards’s long monologue to remind him that the issue on the table is trial scheduling, but Sowards says he knows, that he is sharing with the court the fact that there are “substantial legal issues,” dealing with the black sites that are directly relevant to the sentencing schedule. Sowards finally moves on to the specifics mentioned by Ryan earlier, pointing out holes in and the largely unhelpful parts of the discovery record that militate against making a trial schedule, since it “serves to suppress and cut off investigation of the torture evidence.” Sowards contrasts the 13,000 total RDI discovery with the 6 million the SSCI Torture Report could rely on. And lastly, he complains about the time all of this will take, and how the schedule just isn’t practical.

It seems like Judge Pohl calls for Harrington, who proceeds to cover the gamut of problems: “I’m talking about everything—everything that we do,” from investigating to staffing to security clearances to having to deal with inadequate facilities, such as “the metal boxes”: the trailers at the back of the camp. “We don’t even have office space down here,” Harrington continues as now he talks about the insufficient computers.

Bormann turns address the judge’s concern earlier about the use of the courtroom, and then moves to cite the Nashiri case about lack of oversight of the prosecution with discovery. But a sudden downpour outside drowns her out. The rain forces a recess for over an hour.

When the parties return, the rain has stopped and the sun is out. Judge Pohl takes roll. Denny Leboeuf isn’t present “by agreement,” and Air Force Major Christopher Lanks will be along shortly. Alka Pradhan is also not present. Bormann continues where she left off about the “banging her head up against the wall,” when she was witnessing the Nashiri case because the lack of oversight of the prosecution on discovery causes headaches, and also chronicles missing discovery for bin Attash. She describes the number of hours it takes just to file a discovery motion, and says there are nearly 40 pending.

Bormann goes into the 28 classified pages of the 9/11 Commission report, but Ryan objects: “This motion is docketed. We don’t need to be arguing it today, sir.”

Moving on, Ruiz gets up to ask for “mitigation avoidance,” to tackle the issue once the defense gets the requisite discovery, and then says that Ryan’s argument on setting a court date is “kind of metaphysical in a way,” and reminds him of the movie “Field of Dreams” movie: “[J]ust build it, and they will come.” Ruiz urges Judge Pohl to hold off on the trial schedule until the infrastructure problem is addressed.

Now Ryan is up again. After going over a few discovery orders, he weighs in on the scheduling problem: “I understand there’s lots of complaints and there might be a sense that we’ll get worn down, but we’ll be here for as long as it takes without forgetting September 11th.”

The court moves on to a motion regarding the question of when “hostilities” began between the United States and al Qaeda. Connell says that the government’s main argument rests on the Court of Military Commission Review’s decision in Nashiri that a party cannot litigate hostilities as a pretrial matter, so Connell wants to bifurcate the jurisdictional issue from the substantive issue of whether hostilities started before 9/11, and then brief the procedural question. Bormann adds that the defense is waiting to file a motion to leave to file a motion to decline joinder out of time, as they are missing discovery and waiting for expert assistance.

In the final motion of the day, Marine Corps Lieutenant Colonel Sean Gleason, counsel for Hawsawi, seeks to compel release of contact information for several former Camp VII guards. The government provided Hawsawi’s defense with 24 detainee incident reports created in one single day, but they cover a five-year span. The defense suspects that the reports are inaccurate and wants the contact information for the guards involved in producing the reports. Judge Pohl says he’ll have the prosecution look into it and if the reports are false, they won’t be raised in the case. After a back and forth between Judge Pohl, Gleason, and Bormann, Swann says he doesn’t have “confidence” that the incidents were committed by Hawsawi and commits to signing a pleading promising that the government will not raise the reports in court.

All defense lawyers rest on pleadings, and the last motion in open session is complete. But Connell suggests that they knock out the three 806 motions in 20 minutes. Judge Pohl agrees to go over them now. He decides to recess the open session and discuss the motions in a closed session in a few hours. After addressing some administrative matters with detainee handling, the commission recesses for the time being.