This Week at the Military Commissions, 3/6 Session: Discovery Woes, Unauthorized Browsing, and “Captain X”

After three months away, pretrial hearings in the USS Cole case are set to resume, with military judge Air Force Colonel Vance Spath calling the session to order. The judge notes those who are present, including two new additions to the prosecution, Colonel John Wells and Major Michael Pierson. For the defense, Richard Kammen kicks things off by addressing his wardrobe for the occasion: “As the court knows, my luggage somehow did not get on the plane at Andrews … I apologize I have no tie. I found a suit that I left down here and a shirt that’s kind of gamey, but will make [do] today.” He thanks the court for its indulgence.

Judge Spath quickly dispenses with administrative business, including the order of events for the next two weeks of pre-trial hearings. Kammen then brings to the court’s attention a production of over one hundred pages of discovery that the defense received just three days ago, related to Ahmed Mohammed Ahmed Haza al Darbi, another Guantanamo detainee. Al Darbi, who plead guilty to a related charge, is scheduled to testify against Nashiri in July. But as the documents will likely lead to more discovery requests from the defense, Kammen wonders whether the Darbi deposition can proceed as scheduled.

Next Judge Spath turns to the issue that will take up much of this morning’s hearing, regarding the defense’s possible mishandling of classified information thanks to a computer glitch that allowed defense counsel to view information they should not have been able to see when they signed on to secure government systems. The prosecution team files out of the courtroom, to be replaced by the special trial counsel appointed by Chief Prosecutor Mark Martins to investigate the alleged mishandling, Army Major Michael Lebowitz and Karen Hecker to enter. Specifically at issue are motions regarding “remediation of material obtained outside of discovery” and “prohibiting defense from browsing classified information systems.”

Leibowitz begins by requesting a continuance on the arguments concerning browsing until the following day. At present, the government is aware that the joint service provider identified defense office attempts “to browse on classified government systems,” and that workstations used by members of this defense team may be involved. The Office of Special Security (OSS) has opened a limited inquiry into the “attempted browsing” and is expected to provide greater clarity by tomorrow morning.

For the defense, Kammen agrees that argument should be postponed until tomorrow but cannot be sure that he will be in a position to argue the issue even then. He recognizes that any improper browsing would obviously impact an individual’s security clearance. Kammen states that the defense has “done everything in our power” to comply with browsing rules, but is wary of saying more at this time because the defense is without an expert in security clearances. He underscores the defense team’s need for such an expert and indicates they will renew their motion for funding to hire one.

A frustrated Judge Spath asks the parties what they want him to do about it. The judge points out that every member of the defense team has TS-SCI clearance, so absent unauthorized disclosure, he does not see any harm that he is equipped to remedy. “If the prosecution has an interest in trying this case in the next decade, it would seem to me that we would find a way not to cause significant problems with the defense team.”

Responding to the judge’s concern that the government is trying to “blow up the case,” Leibowitz asks the court to look at the big picture. He explains, “the government should not have to choose between protecting national security and dropping the charges,” and suggests that the defense is forcing the government to choose between dropping the charges or going forward smoothly with the trial.

Leibowitz then proposes a method by which the defense can destroy material obtained outside of discovery, while preserving any exculpatory or Brady material, by employing the framework used in United States v. Hadi. Following this approach, the defense team would work with a third-party IT company to identify any “exculpatory information on their shared drives or in their possession based on this unauthorized downloading of [classified] information.” Once the potential Brady material is identified, the defense should “have no problem sanitizing the irrelevant stuff,” argues Leibowitz.

Returning to unauthorized browsing, Leibowitz notes that the defense team’s use of shared drives is a problem if “others in the defense office not connect with this team” can access them. For the defense, Mary Spears responds, explaining that their shared drive is “run off of permissions.” She cannot access the 9/11 files, and that team cannot access her files. “It’s not just a pile of information that’s just there for the grabbing.” With respect to the third-party contract, Spears says she is not in a position to agree to the arrangement without the assistance of an expert on security clearances.

Spath reminds the parties that their current predicament is the result of a “prosecution team that was not turning over clearly discoverable information to the defense.” Clearly fed up with delays over discovery, Judge Spath asks for clarity on his role in this process and how he can move the case forward when security clearances are out of his purview. He asks the parties to brief him on this question tomorrow. The court takes a recess; special trial counsels leave and the prosecution team returns.

When the session resumes, the court turns to another discovery issue: production of Nashiri’s medical records. Kammen recaps the ground covered during the December hearing and explains that the parties were unable to resolve the issue in the intervening months. At this point, he is asking for: (1) a complete set of medical records and certification from a records custodian to that effect; and (2) production of the records in chronological order. Kammen addresses these in reverse order. First, he complains to Judge Spath that the way the government has been producing records makes it look like they are using the “stairstep method,” in which “they take the records they are going to produce, throw them down two flights of stairs and pick them up in whatever order they happen to pick them up and then give it to us.”

Next, Kammen suggests an onerous but effective way to resolve the issue of incomplete records on either side: a member of the defense team and a member of the prosecution team should meet to go page by page through their respective records ensuring that they match. If there are any gaps, copies will be made for the other side. Kammen insists that this kind of measure is needed because the defense team cannot rely on the prosecution’s assurances that it has been given all the records, reminding Judge Spath that the government produced over 1600 pages of medical records in February after insisting that the defense already had all the records back in December. Kammen insists on a certification from “Joe the recordskeeper,” and not the prosecution, because “[f]ive years of experience has taught us that representations coming from the prosecution are not necessarily accurate, and that’s probably as kind a way as I can put it.”

Kammen concludes by touching on declassification of the medical records and the government’s “insulting” notion that the defense will harass medical providers whose names then appear in the records. He suggests that the court issue a protective order to prevent the defense from speaking with the providers unless it informs the prosecution first.

Army Colonel John Wells responds for the prosecution focusing on the classification issue, though he does concede that the pace of discovery leaves much to be desired. He recognizes the government’s obligation to declassify records to the maximum extent possible, but stresses this would be far easier if the defense identified specifically which records they anticipate needing for a mitigation case.

Wells then reframes the issue around the “essential principle” that classified information is available only on a “need to know” basis. Those, like the commission, with a need to know send requests to the United States Southern Command (SOUTHCOM), the “ultimate owner of these records.” Before records are produced, a specialist determines “what is really needed.”

Judge Spath is confused how the government is possibly fulfilling its obligation to declassify information to the maximum extent possible when it has effectively changed its default position on Nashiri’s medical records from unclassified to classified over the past year: whereas documents were previously generally unclassified, now unclassified records are the exception. Wells and Judge Spath go back and forth at length. Wells emphasizes that these records are unique and represent interface with a detainee who is a member of an organization at war with the United States. Due to this sensitivity, the government has an obligation to put the documents through review by the Office of Convening Authority. Becoming incensed, Judge Spath points out that the government chose to make this a capital case that and as a result, the defendant has the right to medical records to prepare his mitigation case. Wells pushes the point that 2200 pages is an “unwieldy” number to declassify “so they need to tell us which particular records” they need “for efficiency’s sake.”

Judge Spath is not prepared to rule on the matter but indicates that he is unlikely to issue an order given Colonel Wells’s acceptance of responsibility for the slow pace of discovery. He prefers to give the government an opportunity to resolve the issue. Even so, Judge Spath affords Kammen an opportunity to respond before taking a recess.

Kammen begins by reiterating his earlier points before turning to the big picture. Kammen explains that the sentencing phase of Nashiri’s trial (if there is one) will inevitably involve his torture, making these records crucial: “medical records of an individual who was tortured by the government—the same government that now wants to kill him—are clearly discoverable.” The defense needs the records to mount a mitigation case. Kammen refuses to provide the prosecution with a narrowed down list of records his team will need at that stage, explaining, “every record is important.” He wants to ensure that portions of the trial are not closed for secret testimony on Nashiri’s medical condition.

After a recess, the discussion turns to psychological records. Rosa Eliades steps up for the defense, explaining that the prosecution has deputized a “Captain X” to look through Nashiri’s psychological records. This flies in the face of the principle that prosecution has no access to psychological records, as distinguished from medical records. Eliades asks the court to order the prosecution to provide the name of the individual, his background, an accounting of the records he has reviewed, and an opportunity to speak with him without the prosecution present.

Wells responds for the government, arguing at length against the proposed order. He clarifies that Captain X had been charged with an accounting of the records, “not to evaluate the content.”

Judge Spath wants to take up one more issue before ending for the day. Earlier in the session, Kammen had drawn the court’s attention to the fact that for “some unfathomable purpose, Mr. al Nashiri’s psychological records have been given to some other governmental agency.” We return to this issue now with Mary Spears up for the defense. She explains her core concern: what if these records are “being given back to the people who tortured him”? That, she argues, is mitigating evidence that should come before a jury as a reason not to impose the death penalty.

The parties proceed to have a lengthy debate. The government contends that the records are relevant for force protection and therapeutic analysis. Furthermore, the intelligence apparatus routinely looks at what a “high-value detainee is doing while in detention.” Wells therefore has “a hard time understanding how permissible use of these records” is mitigating.

Judge Spath also seems to have a hard time understanding the defense’s argument and presses Spears to explain why it matters if the government is making permissible use of the records. Spears has difficulty formulating a direct answer due to the lack of information at hand. She and Judge Spath go back and forth on hypothetical ways, both nefarious and reasonable, that the CIA may be using this information. At the end of the their colloquy, it is not clear that Spears has managed to convince the judge.

After dispensing with some administrative business, the hearings conclude for the day to reconvene tomorrow. Two more weeks of hearings lie ahead.

Editor's Note: Chief Military Commissions Prosecutor Brigadier General Mark Martins' statement on the occasion of this week's hearings is included below.