Case Coverage: 9/11 Case

10/23 Motions Session #2: CAT and Connell

By Wells Bennett
Wednesday, October 23, 2013, 10:51 AM

James Connell III argues his client’s position with respect to AE200.  That’s the defense’s attempt to have the case thrown out, or the death penalty removed as a punishment option, given an inconsistency between restrictions imposed by the case’s protective order on the one hand, and the United States’ obligations under the Convention Against Torture (“CAT”), on the other.

The lawyer goes straight to the heart of the matter: how does the protective order impose secrecy obligations, over and above those imposed by executive classification rulings?  Well, here’s how, says Connell.  Imagine a letter written Al-Baluchi about his torture, which Connell hasn’t read or talked about with his client.  Obviously, that isn’t classified.  But Connell still cannot send the letter to the UN Special Rapporteur on Torture, given protective order language that deems observations of the accused, related to their "experiences" in the CIA interrogation program, to be “classified.” But that classification hasn’t come from the executive branch, so far as concerns statements made by Al-Baluchi for the first time in the letter; he isn't in privity with the United States, and holds no security clearance.  No, the prohibition comes instead from the court's protective order.  And that’s the problem mucking up Al-Baluchi’s rights to raise complaints under the CAT: in seeking to raise such complaints, counsel and accused can theoretically comply with executive classification rules, while still violating court rules that ostensibly only codify---but do not supplement---their executive counterparts.  The hypothetical, notes Judge Pohl, assumes a violation of the protective order, as entered; Connell acknowledges as much, while noting that he is always bound not to confirm or deny classified information.  But he cannot do that, obviously, when he does even know the information in question---much as he doesn’t know what, say, details about programs which Edward Snowden spilled to the New York Times.  Ditto here: he has no idea, in his hypothetical, about the contents of Al-Baluchi’s letter.

International law is our next topic.  The prosecution is correct that the CAT doesn’t create domestic law rights, acknowledges Connell.  But that's not the end of the matter.  There's also a jus cogens prohibition against torture under customary international law, which creates domestic law favorable to his client.  Such has been the case since 1815, and the Supreme Court's decision in The Nereide.  Accordingly, the customary prohibition against torture has the status of federal common law.  (A surge of dorky nostalgia at Smallwood: Al-Baluchi’s lawyer resurrects the Koh-Goldsmith/Bradley debate over international law in U.S. courts!)  As support, Connell cites the Supreme Court’s Sosa ruling (while distinguishing the ruling, last term, in Kiobel.)  His point: jurisdiction is a separate inquiry from that concerning a cause of action.  And here, a cause of action against torture arises not from the CAT, but instead from customary law.  

Head-scratching at the bench: so how do I help you?  You’ve signed the Memorandum of Understanding, and thus pledged compliance with the protective order, Mr. Connell.  That doesn't pose a problem for the defense lawyer.  He proposes that Judge Pohl strike offending protective order language that, despite all claims to the contrary, calls something classified (observations of the accused during interrogation, e.g.) which is, in fact, not classified by the executive branch. But alternatively, if Connell is incorrect, and if executive branch secrecy policies indeed forbid the accused from openly discussing torture, then the policy can’t be squared with anti-torture law, and the case must be dismissed.  The lawyer then piles on a string of citations---the Second Additional Protocol to the Geneva Conventions, the Rome Statute, and the like---which all demonstrate the customary norm against torture.

Connell again mentions the prosecution’s view, that the CAT is not self-executing.  Again, that’s true, he says, but also irrelevant to the domestic enforceability question.  Here, he cites Filartiga, which famously found a judicially enforceable right, under customary international law, against torture.  At that time, notes Connell, the United States had not ratified the CAT.  No, the question there, and later, in Sosa, was whether a claimed customary law principle was sufficiently specific, universal, and obligatory. And if so, then the principle can be enforced at the domestic level.  Bolstering his historical account, Connell refers to the Torture Victims Protection Act, which codified a long-existing---pre-Filartiga, pre-CAT ratification---cause of action for torture survivors.  The gist: there’s nothing---nada, zilch---to the prosecution’s claim that the CAT requires specific legislation, in order to afford the accused some sort of independent form of relief against torture.  Such mechanisms have long existed, and continue to, given the nexus between customary law and federal law.

The judge sums up: this is all about whether my order correctly embodies executive branch classification law? Connell mostly agrees, and carries on----but not for too long.  The court stops him and calls a quick recess.