On This Week's Scheduled Mini-Hearing in the 9/11 Case

Day one of the two-day hearing was apparently cancelled yesterday evening.  We await the final word on tomorrow's planned session, though the odds of further in-court proceedings strike us as slim. At any rate, the Chief Prosecutor at Guantanamo had this to say. His statement addresses, among other things, the impact of the SSCI report on commission cases:

Before turning to the proceedings scheduled for the coming week, I note that this past Tuesday, on 9 December 2014, the Senate Select Committee on Intelligence made public the 517-page Executive Summary of its Study on the Central Intelligence Agency’s Former Rendition, Detention, and Interrogation (“RDI”) Program. Though publication of the Executive Summary resulted from many factors and considerations, the process by which the Legislative and Executive Branches made this document public did include some consideration of military commission trials. See Attachment B to AE 120D, Letter from Kathryn H. Ruemmler, Counsel to the President, to Sen. Feinstein, Chairwoman, S. Select Comm. on Intelligence & Sen. Carl Levin, Chairman, S. Comm. on Armed Services (Feb. 10, 2014) (noting, in the context of the Committee’s Study, that the CIA Director “is taking [steps] to declassify certain information relating to the former [RDI] program in support of the current military commission proceedings”). Far from disrupting military commissions, as some observers have speculated, the Committee’s publication alters none of the rules of law or due process that will continue to govern each and every trial to its conclusion. That said, the declassification of information contained in the extensive Executive Summary surely accelerated the provision of specific material to the defense that would have otherwise occurred through the discovery process. I have consistently maintained that the United States will not, in any case, seek to introduce statements it assesses are involuntary under the Military Commissions Act (“M.C.A.”). And, under Section 948r of the M.C.A., no statement obtained through the use of torture or cruel, inhuman, or degrading treatment is admissible into evidence in a military commission. Yet there remains a formal process by which an accused and defense counsel may use the discovery they receive to challenge the admissibility of any statements the prosecution might seek to introduce as evidence at trial. See 10 U.S.C. § 948r; M.C.R.E. 304. Such discovery will further enable accused persons to present evidence, and seek due consideration by the commission, of postcapture treatment, where appropriate. Tuesday’s declassification increases the likelihood that more of these processes will be open to the public and assures the accused will be able to see and consult with defense counsel about certain information not previously available to them. But all this will unfold without changing any part of the essential framework of justice by which the alleged offenses are to be tried.