Nashiri Motions Hearing Preview

By Benjamin Wittes & Ritika Singh

The military commission for Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri convenes again tomorrow for a motions hearing at Guantanamo Bay. Thanks to the magic of live video feeds, we will be covering it from Fort Meade, where the Defense Department has set up an auxiliary monitoring station for the press and the general public. Word is that we may even be able to blog live from the room—which, if it proves true, would make military commission hearings even more open to Lawfare readers than, oh, say, D.C. Circuit oral arguments. But at a minimum, we will write up the arguments—as the estimable Keith Gerver did (here and here and here and here) at the time of the last Al-Nashiri hearing in November—after the festivities are over. This hearing is packed full of meaty motions. The following is a preview of the ten issues the court will be hearing. Because of the way the Office of Military Commissions web site is designed, we cannot link to the briefs, and many of the files are too large to upload to Lawfare. So we have uploaded files where we can, and where we cannot do so easily, we simply note the docket entry in parentheses. All of these briefs are available on the Al-Nashiri II docket page. On some of these issues, the full briefing is not yet available--so the precise state of play going into tomorrow's oral argument is hard to discern. Presumably the hearing itself will clarify that tomorrow. Issue #1: More Wrangling Over Ex Parte Requests for Expert Assistance Military commission nerds may recall that the last time the Nashiri commission held a motions hearing, Military Judge Col. James L. Pohl heard arguments concerning a defense motion to allow the defense to submit ex parte requests to the Convening Authority for expert witness resources and funding. The defense had argued (AE010), in essence, that it needed to be able to submit its requests in private so as not to give away its trial strategy, and it had asked Judge Pohl to order the Convening Authority--who had earlier rejected two requests for such a procedure--to entertain them. The prosecution had not resisted the notion of these ex parte requests with limited notice to the opposing party (AE010A), but it had not endorsed either the notion that Judge Pohl had the authority to order the Convening Authority to adopt this procedure. Judge Pohl himself clearly harbored some doubt on the point. So in the last go-around, he agreed to the procedure to the extent the Convening Authority okayed it, and the parties agreed to write to the Convening Authority, Bruce MacDonald, and secure his agreement. The trouble is that MacDonald has not responded yet to two letters since this last hearing. So the defense has now renewed its motion for Judge Pohl to "order the Convening Authority to entertain such requests. Alternatively, the defense requests that the parties be allowed to submit their ex parte requests for expert assistance and resources directly to the military judge, who after approval will then order the Convening Authority to pay for the approved experts and/or resources." The government opposes this request, arguing both that the commission has no authority to issue such an order to the Convening Authority, and that the motion is in any event not ripe, since the defense has not yet submitted any actual requests to the Convening Authority since the commission was actually stood up. Issue #2: It's Not Classified But Please Keep it Secret Anyway The government has moved for a protective order to prevent disclosure of what it describes as "sensitive but unclassified information that requires protection from public release and, in very limited circumstances, from release to the accused" (AE014).  In particular, the motion "seeks protection for privacy information, witness identities and identifying information for Members of the Commission." It further asserts the Government Information Privilege "over certain information pertaining to law enforcement activities, geographic locations, communications surveillance, interrogation techniques, intelligence or law enforcement administrative data, detainee health, detainee family members, the identities of certain U.S. Government personnel, and detention-related force protection." The defense (AE014A) does not object to the protection of certain information from the public, but it objects vigorously to other aspects of the proposed protective order--specifically, to certain findings of facts in the government's proposed order, to the treatment of "information otherwise released in the public as protected information," to having its hands tied as to sharing protected information with counsel in other cases, and to the breadth of certain of the protective order's categories, including "privacy information," "sensitive law enforcement information," and "sensitive interrogation information." The trouble, the defense argues, is that "Instead of narrow tailoring to specific pieces of information that the government demonstrates a compelling need to protect from public disclosure, the Prosecution has proposed a blunderbuss protective order for general categories of information that are broadly described. This, by definition, is the antithesis of a narrowly tailored limitation." The government defends its proposed protective order (AE014B), arguing that it does not cover material legitimately in the public domain, that it only restricts the provision of information to the detainee in very limited and compelling circumstances, that the information withheld from the public "will not inflict any appreciable damage to the public's right to know and understand the operations of its government, or to the accused's right to a fair trial," and that the proposed protective order aligns closely "with similar orders to protect sensitive but unclassified information in federal court." Issue #3: Stop Snooping on Our Computers The defense has moved for an order to prevent the Defense Department from monitoring the computers and emails of Military Commissions defense counsel. The government conducts, as part of DoD's normal cybersecurity operations, what the defense terms (AE016) "monitoring techniques" of government computers that "will invariably expose the content of privileged and confidential data accrued by [defense] attorneys in the course of representing their clients, even if that was not the original purpose of of the search." Given that Al-Nashiri is required to be represented by the military commission defense office and that the office has no choice but to use government computers, the defense argues, the monitoring is a "per se infringement of Mr. Al-Nashiri's constitutional and statutory rights to effective representation and a breach of defense counsel's ethical obligation to secure clients' confidential information." The defense proposes that the court order DoD to create an "enclave"--basically a firewall and a series of permissions--that will ensure that government outsiders cannot look in on defense lawyer files and communications. The government acknowledges (AE014A) that Al-Nashiri enjoys a statutory (though not constitutional) right to counsel and privileged communications with his attorneys, but it claims that nothing about its cybersecurity systems interferes with those rights. Privileged communications are not given to the prosecution or used against the defendant in any way, the government argues, so signing the required consent to monitoring is not a waiver of any client's right. There is no prejudice to detainee, the government contends. "The cyber threats to modern society are both real and grave," the government argues. "The kind of routine 'monitoring'--a poor descriptor of what actually occurs; perhaps a better word is 'filtering'--that all e-mail undergoes is essential to protect national security." The defense retorts (AE016B) that the government's arguments "are no more persuasive with respect to the government's blanket electronic monitoring of Mr. Al-Nashiri's confidential attorney-client information that they were with its cursory reviews of his legal mail" (see Issue #8). The government, the defense complains, "does not even try to explain why the defense's proposed remedy presents a unique or excessive burden" when it does more or less the same thing for other offices within DoD. The government (AE016D) announced in response that it means to put on a witness named Adam Bennett on this issue. Issue #4: Trial Schedule The parties have radically different notions of when this trial is actually going to take place. The government has proposed two trial schedules that would have trial beginning either in March 2012 or in January of 2013, depending on whether the court determines that Al-Nashiri has waived speedy trial rights or withdrawn that waiver (see Issue #6). Al-Nashiri's counsel, by contrast, has proposed a much longer trial schedule--one "based upon several assumptions"; if these assumptions "prove to be incorrect or too ambitious," defense counsel emphasize, "the schedule will be correspondingly longer." In the defense's proposed schedule, trial would not begin until March 2015. Issue #5: Defense Motion Objecting to the Government’s Ex Parte Motion and Request for Protective Order Apparently in connection with discovery related to some Special Access Program, the government, the defense states  (AE024),  moved the commission for a protective order and requested that the Commission “(1) authorize the use of summaries [of evidence] in place of the actual classified information, and (2) find that the government has fulfilled its discovery obligations through these summaries” (See Issue #6). The defense objects to this move. It  "request[s] that it be allowed an opportunity to be heard ex parte prior to the Commission's decision on whether to authorize the use of summaries of classified evidence." The defense argues that its input on the adequacy of the summaries is essential: “The Commission cannot be expected to ascertain the scope of the defense and therefore the adequacy of the substitutions [of the classified information] without hearing from the defense first.” Moreover, the defense "objects to the proposed finding in the [government's proposed] protective order that the 'government has satisfied its discovery obligations' through the use of summaries." The government responds (AE 024A) that the defense's request to “review the government’s . . . protective order” and review the summaries is “inconsistent with . . . the Military Commissions Act of 2009, and it contravenes Congressional intent and established case law.” The government, however, states that it “does not object to the defense request for an ex parte hearing to provide the Commission with its theory of the case.” The defense remains unsatisfied (AE 024B), arguing that the government’s solution--that the defense make its ex parte case to the Commission--doesn’t address the underlying problem that the defense is going in blind. Issue #6: Defense Motion to Slow Things Down Until Prosecution Speeds Things Up The defense is asking (AE 025) the Commission to “order the abatement of proceedings” until the prosecution is able to certify that the “government is prepared and able to comply with the discovery orders issued by the military judge.” The defense complains that while the prosecution in November assured the military judge that it was ready to proceed and consented to a defense request for a trial delay only on the basis of its waiver of speedy trial rights, the prosecution is actually not prepared to proceed at all or to comply with discovery requests. Shortly after the November hearing, the prosecution notified the judge and the defense that the defense could not receive Top Secret/SCI material for a Special Access Program about which discovery might be necessary. The defense argues that it "cannot be expected to provide a remotely adequate defense if the government has no intention of ever providing discovery that will be central to Mr. Al-Nashiri's defense and whether the government will execute him." The government says it is working on the problem, the defense notes; "Abatement until the government actually succeeds in solving this problem is therefore necessary if the defense is to know how to prepare." It further asks "to withdraw its waiver" of speedy trial rights and asks that the delays in the case be held against the government’s requirement to provide the defendant with a speedy trial. It finally requests that it be relieved of the obligation of producing a litigation schedule by January 4--a point which is moot now but which explains both the assumption-laden litigation schedule it provided on that date and the two litigation schedules the government provided then (See Issue #4). The government calls the defense’s request for abatement "premature"  (AE 025A). It argues that "the defense has not been denied access to any discovery to which it is currently entitled." It acknowledges that it "has identified arguably discoverable materials that include Special Access Program (SAP) information." This is apparently the material at issue in the protective order request at issue in Issue #5. And the government says that "If the proposed summaries attached to the government's motion are approved by the Commission . . ., that approval will trigger a need to provide defense counsel with access to certain SAP information." The government claims it is "working diligently" to resolve this issue "in a timely manner" and before "the defense's need to receive this SAP information." Meanwhile, however, in light of the withdrawal of the waiver--on the basis of which the court had set trial for a year off--the government argues that it "is required to bring the accused to trial within 120 days of the service of charges," which would be no later than March 12. The defense later filed a motion to withdraw as moot its motion (AE 025B), which also appears to have been ruled on, at least in part (AE 025B) (Note: Neither the defense's last motion nor the ruling are currently available. Further note: An earlier version of this passage contained an error we have now fixed.) Issue #7: Tie Me Up, Tie Me Down The defense requests (AE026) that Al-Nashiri be allowed “to meet with his counsel without being restrained.” The defense states that defense lawyers have met with him unrestrained during his arraignment, and would like to have “appropriate access to their client.” They “do not believe that they are at any risk during their meetings with the defendant and do not believe that they would be at any [personal] risk if he were completely unrestrained.” The specific nature of the restraint is redacted from the motion. But the government says (AE026A) that the defense’s motion should be denied and that the “Commission should defer to the Commander, JTF·GTMO, on policies relating to the safety and security” at Guantanamo Bay. The governments asserts that the “safety and security of a detention facility is a legitimate government interest,” and “the policy helps protect the detainee, the guard force, and any other visitors to the detention facilities, including counsel for the accused.” The government also points out that the detainee can meet unrestrained with counsel in a no-contact room. Similar restraint policies, the government argues, are common practice in federal prison facilities, and “the defense offers no reason to depart from the Commander’s decision . . . , provides no examples of actual harm to the accused stemming from the Commander's policies, and . . . cites no legal authority beyond two law review articles to support its requested relief.” In a subsequent supplemental response (AE026B), the government notes that it means to call one “Col. Dannie Thomas as an anticipated witness for the government” on this motion. Issue #8: You've Got Mail The defense asks the Commission to “order JTF-GTMO to cease its new policy concerning the delivery of legal mail, and order a dismissal of proceedings upon a failure to do so” (AE027). During the last motions hearing, Judge Pohl issued a ruling on JTF-GTMO's earlier searches of Al-Nashiri's mail, which Keith summarized as follows:

Judge Pohl’s ruling on the motion was fairly favorable to the defense.  He concluded that the review violated the attorney-client privilege and granted the defense’s motion, “as follows”: (a) the defense will clearly mark correspondence, envelopes, and individuals pages. Judge Pohl made clear that he was referring to mailed letters or other type-written communications, not magazines or similar material; (b) JTF personnel may review these materials for those markings; (c) improperly marked mail may be seized; (d) failure to comply with the marking scheme by the defense will result in Judge Pohl’s revisiting this ruling upon application by the government. Judge Pohl added that the government may offer an alternative procedure that he will consider upon application.

In response, the defense complains, Rear Admiral D.B. Woods, the base commander, issued a new policy, under which "only 'privileged communications' from counsel is allowed to be directly delivered to the detainee." Other mail--including newspaper articles, and third party communications relevant to detainee cases--"is subject to be scanned, reviewed, translated, redacted and subject to possible exclusion." According to the defense, "various defense teams at the Office of chief Defense Counsel have had a number of items rejected for immediate delivery under this policy"--including copies of the new mail policy itself, newspaper articles, communications from the Convening Authority, and the curriculum vitae of potential defense experts. The defense alleges that the new policy “infringes upon the accused’s rights to the effective assistance of counsel and his access to the courts. Accordingly, it violates his rights under the Fifth, Sixth, and Eighth Amendments to the U.S. Constitution, the Detainee Treatment Act of 2005, and the Military Commissions Act of 2009.” The government's response (AE027A) is not available, nor is the amended government response (AE027A), or the defense’s reply (AE027B). What is available is the defense’s motion to supplement its original motion because of “two intervening events that are relevant to the Commission’s evaluation of these issues” and its call for additional witnesses (AE 027C):

The first [event] is that…the Chief Defense Counsel . . . issued an interim professional responsibility instruction barring defense counsel from complying with RADM Woods’ new orders. . . . This interim instruction [found] that RADM Woods’ new policy "compel[s counsel] to unlawfully reveal information related to the representation of a client." The second event was that defense counsel learned that individuals assigned to the Privilege Review Team were located in Guantanamo. Defense counsel inquired, but were not provided the names or other identifying information for these individuals. The Defense therefore asks to supplement its reply by adding these individuals, JOHN DOE and JANE DOE, as witnesses in support of its motion.

The government responds with a supplemental request (AE027D) to add one Tom Madigan as a witness in support of its response to the defense’s motion. The defense, in turn, has moved (AE027E) to “Compel the Production of RADM David Woods and a Privilege Review Team Member Stationed in GTMO to Testify at the Hearings on AE027.” Details of this motion are not available, but this set of issues promises fireworks at the hearing. Issue #9: Let's Just Watch it on TV The government requests (AE 028) that the Commission “authorize closed-circuit television (CCTV) transmission of all open commission proceedings to remote viewing sites located in the continental United States” because of “the courtroom’s geographically remote location and the limited public seating available.” The government believes that closed-circuit transmission of the hearings to Ft. Meade, MD, and NAS Norfolk, VA--of which we are big fans--will “facilitate public access to the trial of the accused,” and thus that the “the Commission should issue a trial conduct order setting forth the procedures and rules relating to the remote viewing sites.” To nobody’s surprise, the defense agrees that the proceedings be made available for public viewing, but it “objects to the severe restrictions placed upon the public’s access to the proceedings and requests that the Commission institute procedures that insure that the general public, not just those acceptable to the Government have access to view the proceedings” (AE 028A). The defense goes as far to state that it would rather close the proceedings to the public in order to “make clear that the military judge--not the prosecution--controls access to the courtroom.” The government calls the defense’s ultimatum “unfortunate and inappropriate” (AE 028B). It states that “the procedures for accessing the remote viewing site at Fort Meade are consistent with procedures for accessing federal courthouses and general courts-martial,” and therefore, the Commission should grant the government’s motion. Military Judge Col. James L. Pohl (AE 028C) issued an order granting the government’s request. But subsequent briefing, including AE028D (Observer Selection for Viewing of Military Commission Proceedings), AE028E (Draft of Standard Operating Procedure Public/Observer Closed-Circuit Television Site Operations for Military Commissions Proceedings) and AE028F (Draft of Rules for Public/Observers of Military Commissions via CCTV Fort Meade, MD) are not yet available. So it's unclear at this stage what is left to argue about on this point. Issue #10: Is It Secret or Public? Get Your Story Straight Finally, the defense complains (AE029) that the government lacks a “coherent and consistent” approach “concerning classified information previously entered by the Commission.” The defense notes that at the prosecution’s request, the Commission entered a protective order “that guides the parties in dealing with the treatment of classified evidence during pretrial and trial proceedings. . . .” During the arraignment, however, the detainee made statements—which are presumptively Top Secret/SCI because of his captivity in covert programs—but the prosecution waived protection for those statements. The unofficial transcript, the defense notes, appeared on the military commission web site two days later. “However, the parties have been advised [since] that the entire official, unauthenticated transcript is now deemed to be TS/SCI. . . .” This raises several problems, the defense argues. First, if the entire hearing is classified, then only people with TS/SCI clearances can view the proceedings, and the government “has now widely disseminated TS/SCI information.” It also raises a problem of retroactive classification—creating uncertainty about what aspects of hearings anyone is allowed to talk about. The defense argues that “the only way to have a consistent, coherent policy, rather than one in which classification is a malleable concept waived by the prosecution at its whim when it wants pseudo-transparency, is to insist that if the authenticated transcripts are TS/SCI then all the proceedings are TS/SCI unless and until the [Original Classification Authority] specifically determines otherwise.” The defense acknowledges and “regrets” that this would mean “even more secret proceedings.” The government’s response (AE029A) to this motion is not yet available.