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10/25 Session #3: KSM’s ThinkPad

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Friday, October 25, 2013 at 12:33 PM

In our next item, AE149, the defense seeks the return of computer hard drives and DVDs.  These contain information—discovery and materials KSM and company prepared themselves— generated during the old days, when the government furnished the 9/11 detainees with laptops.  The court notes that the accused were pro se at the time, during the case’s first go-round at the military commissions.  But the computers were seized in 2008 or 2009, Nevin says, and are now held in the Air Force Office of Special Investigations.  Thus his return request, on KSM’s behalf.   

Generally, the prosecution doesn’t oppose the return of documents contained on the laptops, or even the laptops themselves. But there’s nevertheless a holdup, which Nevin sketches.  This, according to the prosecution, could go away, upon the execution of the Memorandum of Understanding (“MOU”).  (Nevin hasn’t inked it, for legal reasons.)  Moreover, Nevin argues, prosecutors claim that after signing the MOU, and thus agreeing to be bound by the case’s protective order, Nevin and crew can pass computer-generated documents  to their clients, pursuant to the case’s written communications order—which hasn’t yet been entered.  It’s a bit of a mess, to the defense lawyer’s eye.   The court: what’s the connection between the MOU, and the protective order, and the stuff at issue?  There isn’t one, according to Nevin.  Indeed, the protective order already allows for liberal passage to the accused of materials created by them in the first instance.  The situation, to Nevin’s eye, only underscores the absurdity of the MOU-protective order regime.  He closes by reiterating an evergreen defense concern: it is unclear who has accessed KSM’s stuff, during the materials’ storage at an Air Force facility.

Cheryl Bormann, Learned Counsel for Bin Attash, also sees absurdity.  Counsel have to execute a document in order to obtain materials generated originally by their clients?  It’s insane, she says. Ramzi Bin Al Shibh’s Learned Counsel, James Harrington, sees insanity, too: these computers were shrink wrapped and stowed away five years ago.  To Harrington’s eye, the “just sign the MOU and we’ll give you your stuff” position, now staked out by prosecutors, is simply another way of subjecting the defense to a presumptive classification regime.   Remember, that was supposedly bad, Harrington argues, and supposedly chucked some time back.  James Connell III builds on claims by Harrington and Nevin, among other things by insisting the MOU and protective order in no way bar the computers’ return.  

In 2008, prosecutor Robert Swann had offered to provide each accused with a laptop, whether the latter elected to proceed pro se or with the help of lawyers. But when the case ended in January 2010, Swann says, the computers were bubble-wrapped and stashed, pursuant to a “further investigation” conducted by Some Other Organization.   (The Smallwood faithful can only guess which one.)  That is completed, Swann says.  And the prosecution will return the laptops, provided these are retained in a secure facility.  (Swann adds that neither he nor any other prosecutor has seen anything on the laptops).  The problem, Swann elaborates, is that defense counsel put some things on the laptops that the prosecution didn’t know about, back during 2008 and after.  That makes for secure handling issue, and brings about the SCIF method he’s outlined.  So everything will be returned to counsel, Swann says reassuringly.  And counsel can share documents printed off the computers with their clients, provided they employ Guantanamo’s privilege team mechanism.

The court hypothesizes: the accused writes down thoughts about this case.  Is it classified?  It may well be, Swann says; certain things remain classified no matter what, even if they come from the accused.  So why should these computers be treated as classified now, the judge asks; they weren’t before.  Answering, the prosecutor refers to defense counsel’s additions to the computers, which might well be classified.  That very issue was the subject of an investigation.  The military judge sums up: you are afraid that defense counsel might have stashed, inadvertently, classified stuff on the accuseds’ computers in 2008?  Yes is Swann’s answer.  Thus his approach, proposed here in an abundance of caution:   counsel can look at this stuff in a SCIF.

Judge Pohl sees the way forward: counsel could investigate the computers, in a SCIF, and satisfy themselves that the machines have no classified stuff—and then pass the laptops’ contents to their clients?  Swann is okay with that.  (It seems Nevin may be too.  The latter says he would be glad to receive the materials in question, though he again refers to the protective order—which doesn’t implicate accused-produced materials at all.)  As for who has seen or fiddled with the machines, from 2008 until the present, Swann cannot speak to that, other than to reaffirm that the computers were stored and investigated.  Swann agrees to set forth the prosecution’s knowledge about the who-handled-and-saw-what, in a future filing.  (There might be a chain of custody document, Swann says.)

Windup: the defense motion is granted, so far as concerns the return of the computers, and again subject to the procedure required today. Defense counsel will review the laptops, to ensure that they contain no classified material.  Assuming not, passage of printouts and the like of laptop-generated items will be processed pursuant to the (forthcoming) written communications order.

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