Case Coverage: Military Commissions

10/22 Session #2: On the CAT, Part One

By Wells Bennett
Tuesday, October 22, 2013, 11:21 AM

We thus turn from legal bins to docketed items, and in particular, to AE200: that’s a defense motion to toss out the charge sheet, in light of alleged inconsistencies between a protective order meant to safeguard national security information in the case, on the one hand, and the United States’ obligations under the Convention Against Torture, on the other.

In short, the protective order restricts the detainees’ abilities to speak freely about, among other things, their experiences during their controversial interrogation at the hands of the CIA.  (The United States still deems such information secret, despite extensive public knowledge of the euphemistically described “enhanced interrogation program.”)  But the latter---a treaty to which the United States is a party---obligates the United States to allow torture victims to have their cases examined by “competent authorities” within the U.S. legal system.  The treaty also authorizes victims thereafter to submit complaints to an international committee.  In its filing, the defense says such complaints should contain, among other things, details about any alleged torture---details which, according to the defense, a detainee must omit in light of the protective order’s unlawful restrictions.

J. Connell III, a lawyer for Ammar al-Baluchi, desires to make procedural point.  Before he makes it, the court seeks to nail down an ambiguity: yours is a legal motion, the factual predicate for which is assumed?  Judge Pohl asks because the treatment of the accused in U.S. custody implicates all kinds of well-known issues, and touches on a boatload of classified as well unclassified material.  But the secret stuff here is taken as a given, right? Connell doesn’t quite agree, in light of a classified addendum submitted by his team.  That sets forth certain secret, but apparently quite important and even disputed, facts.  There’s also this twist: AE200 isn’t ready for argument in any event, because of unresolved witness issues.  Among other things, there are still pending defnse witness requests for AE200, ones which the prosecution hasn’t acted on.  Will the government produce these people or not?  Connell needs to know, and can’t go forward on AE200 without the answer.

It’s a head scratcher for the court: why do you need a witness to make a unadorned legal argument, about a treaty's relationship to a rule of court?  What purpose would a witness---or, perhaps a closed session to debate the witness's testimony---serve?  Connell is no less frustrated: he has facts he wishes to put in the record, ones that will advance his position on AE200.  At least one witness, it seems, is a doctor and expert who can explain medical issues to the commission, so far as concerns Al-Baluchi.

(Connell’s crew stands in a somewhat unique position: unlike other defense counsel, they have executed a “Memorandum of Understanding,” which entitles them to receive classified discovery under the case’s protective order.  Other defense attorneys have refused to do this. The latter claim that the protective order imposes restrictions which violate the law and impinge on the lawyers’ ethical objections.  Connell and his co-counsel, by contrast, have signed the Memorandum while at the same time endeavoring to attack the protective order’s many flaws---such as, for example, its alleged incompatibility with the Convention Against Torture.)

Court and defense counsel go a few rounds more on the carousel, the former irked about a belated bid to delay a docketed and purely legal motion, the latter irked about being rewarded, after a rigorous effort to obey all rules, with a chiding from the bench and a call for argument on an unripe motion.  We wouldn’t have this problem if I had a unilateral power to subpoena witnesses, says Connell.  That prompts an obvious and enduring question about the equality of arms in military commission cases; when asked, the prosecution dutifully disclaims any power to subpoena civilians to Guantanamo.

Prosecutor Clay Trivett is ready to argue AE200.   Addressing the court, he acknowledges not responding to Connell’s witness requests---but nevertheless sees no real problem here.  Trivett says the prosecution would deny Connell’s requests on relevance grounds, and does so de facto, now.  At any rate, the prosecutor is prepared to debate the Torture Convention’s application without these witnesses, and to debate the witnesses’ relevance.  For his part, Connell says he will soon file a motion objecting to Trivett’s denial, and along the way cites to the commission Rule 703(e)(2)C)---which apparently, and contrary to the prosecution’s position, empowers the court and the government to subpoena civilian witnesses.  The military judge clarifies, annoyance in his voice: sure, I or the prosecution can write a subpoena, but we cannot compel any civilian witness to leave the United States and come to a foreign country.  Such is true in courts martial; so too in this military commission.

A word or two more from Connell, and from Ruiz (who likewise has AE200-relevant discovery requests still pending), and we come to the punch line:  we’ll do legal argument today, or at least some, despite unresolved evidentiary stuff.  The latter will be the subject of an afternoon closed session.