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Reminder: Hearings in the 9/11 Case Tomorrow

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Sunday, January 27, 2013 at 5:29 PM

Ben’s analysis of Charlie Savage’s article on the Chief Prosector prompts this reminder: tomorrow at 9 a.m., Lawfare returns to Smallwood Hall for closed-circuit, piped-in-from-GTMO hearings in the 9/11 case.   There are twenty-five items set for oral argument during this week’s four-day session. Obviously, that’s waaay too many to digest in a single preview post.  Instead of doing that, we’ll below identify a few of the case’s major themes to date, while highlighting some significant filings in each thematic category.  (Should you not thirst desperately for a motions preview, then read no further—but do tune in tomorrow morning.)

One note before commencing: there are no potentially case-dispositive items on this week’s crowded agenda.  It does not call for, say, debate about whether an armed conflict indeed existed at the time of the five defendants’ alleged conduct, and thus conferred military commission jurisdiction; nor, for example, for any back-and-forth over whether executive branch officials’ pre-trial statements already have dashed any hope of empaneling an impartial jury.  To be sure, the defense will sketch out some of its big-ticket-but-not-scheduled items, chiefly by arguing related and underlying motions.  Thus lawyers will delve deeply into discovery and witness matters—four motions in all—surrounding the defense’s long-pending motion to dismiss for defective referral, AE008.

But argument on that case-could-get-tossed-if-the-defense-wins motion—and a like one, to throw out the charge sheet for unlawful command influence (AE31), among others—will await a future session, at least according to the docket.   Ditto the by-now-notorious “conspiracy charge withdrawal” issue: strictly speaking, it also isn’t on this week’s dance card, and thus likely won’t see argument.  (Caveat Lawfarer: “likely,” does not mean “certainly.”  Motion schedules can change on the fly, and the parties can raise issues outside the docket, provided the court signs off—and the conspiracy charges’ future undeniably looms large these days.)

Here’s a high-altitude, thematically organized overview of some—but by no means all—of the motions that, according to the most recent schedule, will be addressed this week at Guantanamo.

Information Management Procedures

As always, the parties will argue over how to manage case information, in a fashion that at once ensures the national security while respecting the rights of the accused.  Here, there are two broad categories of information at issue: first, communications passed among defense counsel and the clients, and therefore potentially subject to the attorney-client privilege and other protections; and second, material covered by a recently-entered protective order, which shields classified national security information from disclosure.

Safeguarding the attorney-client privilege and the right to counsel

In the first category, defense lawyers seek an order protecting “[the] right to counsel by barring invasion of privileged attorney-client communications” (AE32).  In short, they charge that JTF-GTMO promiscuously rummages through legal mail and other documents transmitted between attorney and accused—and that, in order to avoid such snooping, counsel must forgo needed exchanges with their clients.  The effect is to impinge severely on the their clients’ rights to counsel.

The government rejoins (AE32A) that the court already has resolved this very issue, in al-Nashiri.  Thus prosecutors have propose a privileged written communications order (AE18, renewed in AE49) that tracks the equivalent order entered in the latter case—by (guess who) Judge Pohl, who happens to preside over both of Guantanamo’s capital prosecutions.  (Handed down after considerable litigation—see Ben’s write up, and Ben’s and Ritika’s oral argument coverage—the molten core of the al-Nashiri order is to permit review of certain materials by an executive branch “privilege team,” which cannot discuss the reviewed materials with prosecutors.  Such review does not trigger any waivers of legal protection for the accuseds’ attorney-client communications.)

The defense apparently does not dispute the similarity between the government’s proposal and the al-Nashiri communications regime, or at least not emphatically.  Rather, defense attorneys argue (AE18C) that the al-Nashiri approach deems nearly everything to be “contraband,” which may be reviewed and even seized at the whim of JTF-GTMO personnel; that conditions allegedly underlying the al-Nashiri order either do not obtain in the 9/11 case, or never really obtained in al-Nashiri’s case to begin with; that the al-Nashiri order adds restrictions not found in an order governing communications in habeas cases, which ostensibly served as the template for the al-Nashiri approach; and that replication of the al-Nashiri regime still would prevent counsel from providing minimally adequate legal representation.  For trial counsel, the al-Nashiri process balances the accuseds’ legal rights with the security imperatives at GTMO.  And in any event, they say, defense counsel hasn’t proposed an alternative.

Precedent, and Judge Pohl’s detailing to this case as well as al-Nashiri’s, could matter here.  If indeed the prosecution’s written communications order perfectly tracks its al-Nashiri counterpart, then we can expect the court to ask the goose/gander question: why shouldn’t the same procedures regulate lawyer-client communications in both capital cases?  Earlier, in challenging the proceedings’ legitimacy, defense lawyers highlighted Judge Pohl’s double-detailing.  Having resolved an issue unfavorably to the defense in al-Nashiri, the lawyers say, the court cannot help but follow suit in the 9/11 case—even if he claims to keep an open mind, and even if distinctions between the cases warrant the application of somewhat different rules in each.

            Tweaking the rules for handling national security information

This brings us to protective order #1, regarding the handling of national security information.  In short, the defense views the order, which Judge Pohl issued in December, as unsatisfactory.    Thus counsel has asked the court to adjust its language in four different respects.  (AE13R, AE13S, AE13T, and AE13U).

A refresher: as entered, the order grants the defense’s request for an independent, defense security officer (“DSO”); preserves the controversial, 40-second audio delay during court proceedings; and effectively dispenses with the much-derided “presumptive classification” regime, whereby all statements by the five accused, no matter how innocuous or obviously not secret, would be deemed classified until completion of a security review.  The new rules are different.  Now, with the protective order’s entry in December, the defense must treat as classified only information that it knows or should know to be, in fact, classified.  This more workable standard obviously covers the accuseds’ observations about their rendition, detention and interrogation, and other national security-ish subject matter; but almost certainly doesn’t cover, say, the name of an accused’s family, who, during the case’s penalty phase, could testify about his good character or troubled upbringing.  The tweak thus removes a needless burden on the defense: under “presumptive application,” the witness’s name could only be discussed under certain secure conditions; and then only with cleared personnel, who themselves possessed the requisite “need to know.”

Fast-forward to the present.  Given the protective order, is “presumptive classification” really dead?  Or alive and well?  The defense glances toward the second answer in AE13U, its motion to “strike the testimonial notice requirement of protective order #1.” Notwithstanding the order’s new, ostensibly more defense-friendly secrecy rules, it nevertheless still requires defense lawyers to provide notice to the court and prosecution, in advance, if any accused intends to make statements or to offer testimony in the courtroom.  Why?  Because, according to the protective order, their remarks  “may” contain classified information.  This is nothing but presumptive classification, defense lawyers say, a stubborn little sin that must be purged from the protective order.  Their reasons are, first, that the commission has no power to insist upon prior notice of unclassified testimony; and second, that the order’s notice requirement lopsidedly favors the prosecution—which need not give any advance heads-up about unclassified testimony by its witnesses.  Unfortunately we don’t yet know the prosecution’s thoughts on these arguments, as its written response has yet to clear the requisite Guantanamo security scrub.

But we do know the prosecution’s views of a related defense motion, to reconsider the protective order’s definition of “unauthorized disclosure” (AE13R).  At the moment, the protective order makes clear that “[c]onfirming or  denying [classified information], including its very existence, constitutes disclosing that information.”  The accused want the “including its very existence” clause excised, because confirming information’s existence can only constitute disclosure if, in fact, the information’s existence has been classified independently of the information itself.  There’s a universe of classified information out there, the argument goes, the existence of which is unclassified, and, in some cases, has been broadcasted to the public.  Take the RDI program’s operation by the CIA, for example: its existence has been acknowledged officially, but the program’s operational details remain classified.   Of course those details’ ongoing classification remains a matter of sharp dispute—as we saw during the case’s most recent argument session.

The government return-serves (AE13R-1) with this taxonomical point: there are many categories of classified information, the existence of which is also separately classified—and these are what the “including its very existence” phrase aims to protect.  Trial counsel also adds (rather meekly) that motions to reconsider—like that filed by the defense—are only appropriate if the underlying facts and law have changed.  But the protective order was entered only last month, and nothing has altered the factual and legal status quo in the meantime.

For what it’s worth, the latter, procedural claim seems to duck the question of whether, in fact, the protective order could be altered so as to allow defense counsel to confirm the existence of classified information, in situations when that existence was never classified at all, or was classified but then was declassified officially.  On this issue, the protective order’s definition elsewhere of “classified information”—that which counsel “knows or should know to be classified”—might well help to protect the government’s interests here, whatever the language of the “unauthorized disclosure” provision.  In that regard, the dispute seems a candidate for relatively easy resolution, notwithstanding the government’s unquestionably legitimate need to safeguard materials that, if disclosed, would harm the national security.

The Treatment of the Accused Both Before and After Capture

Apart from information handling, the case’s other and more well-worn leitmotif is this: for the prosecution, the case is about what was done by the defendants; but for the defense, this case is about what was done to the defendants in the past, and what is being done to them now at Guantanamo.  The dichotomy will be on prominent display this week, and in two different respects.

Preserving and Uncovering Information about the CIA’s RDI Program

First, the defense continues to seek information about the accuseds’ euphemistically described “participation” in the CIA’s rendition, detention and interrogation (“RDI”) program—which was conducted at several still-nominally-considered-secret facilities abroad.  As we noted earlier, the project advances many core defense objectives: to name but a few, to demonstrate that the accused suffered greatly at the government’s hands during interrogation, and thus should be spared the ultimate penalty of execution; or, more broadly, to put the government itself (and certain U.S.G. counterterrorism policies post-9/11) on trial.

On this score, we’ll hear about a request to compel discovery “related to White House and DOJ consideration” of the RDI program (AE112).  Likewise, defense counsel desire discovery “related to buildings in which the accused or a witness has been confined (AE113), and also have asked Judge Pohl to order the government to “preserve evidence of any existing detention facility” (AE80).  The latter duo directly implicates the foreign locations where the accused were interrogated.

The government obviously accepts its baseline obligation to disclose certain discovery materials;  the dispute is, instead, about precisely what this obligation entails.  The prosecution’s response filings on RDI and black sites (AE112A and AE113A), for example, commit the government to turning over:

tens-of-thousands of pages of discovery to the Defense, including information—both classified and unclassified—relating to the arrest, detention, rendition, and interrogation of the Accused. The Prosecution will also produce all statements and treatment-related information of the Accused, all of the Accuseds’ medical records in the possession of the U.S. Government, and other discoverable information.

This unremarkable-seeming promise raises the question: what is the appropriate legal standard for pretrial discovery, anyway?  Among other things, the accuseds’ lawyers insist that under R.M.C. 701(c), the accused is entitled, now, to any items that: are material to the preparation of the defense; reasonably tend to negate the guilt of the accused of an offense charged; or could reduce the punishment imposed after conviction.  The trouble is, in the defense’s view, prosecutors have conflated these broad and easily-satisfied standards with more rigorous ones, and thus impermissibly diminished their disclosure obligations.  By way of example: the government seems to have imposed a relevance requirement on pretrial discovery—even though the question of relevance concerns only evidence’s admissibility at a trial or hearing.  For its part, the government simply doubles down on its pledge to respect discovery obligations.  Thus, which side has accurately formulated the standard—and not the general disoverability of RDI information—will be the issue for decision by Judge Pohl.

The case is similar, though not quite the same, in AE80—the motion to preserve (rather than to compel discovery of) black site evidence.  In this filing, the defense notes that—apparently in response to submissions by lawyers for Ramzi bin al Shibh—prosecutors earlier “answered that [the government] would maintain the status quo, as of the date of the defense motion for preservation.” Again, there’s some question as to what this means exactly: the government’s response to AE80 remains classified, and its response regarding discovery suggests residual disagreement about where, exactly, the legal boundaries of the prosecution’s discovery should be drawn.

In any event, the preservation motion goes a step beyond its companion motions in this respect: here, the defense puts the court and prosecution on notice of the consequences that, in its view, would follow any failure to preserve evidence about the foreign sites where the accused were detained and interrogated.  By destroying any such proof, “the government would make a constitutionally adequate trial impossible in this case, and destroy any confidence in the verdicts along with them.”  That obviously doesn’t sway the prosecution, which as always stands on its commitment to preserve and turn over evidence to which the accused are entitled.  But the emphasis here flags an obvious defense concern—and likely foreshadows future argument about discovery’s impact on later phases of the case.

Inquiring into Conditions of Confinement

Apropos of phases, the question of detainee treatment in the 9/11 case comprises historical events (what happened between KSM’s apprehension in Rawalpindi, and his transfer to GTMO?) as well as current ones (under what conditions will JTF-GTMO forcibly restrain an accused?).  In addition to the CIA’s RDI program, the defense also wishes to address the prevailing conditions at Guantanamo.

In the latter respect—and without summarizing further—I note that four of this week’s docket items touch on Guantanamo detainee policies, so far as relevant to the accused: AE108, a motion to compel an examination into conditions of confinement, including discovery of correspondence between the International Committee of the Red Cross and the United States about the camp; AE84, a motion to prohibit force-feeding, pending a court determination that the practice is unnecessary; AE85, a motion to compel production of JTF-GTMO’s standard operating procedure on force-feeding; and AE93, a motion to permit Ammar al-Baluchi a one-time “audiovisual communication” with his family.

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