Case Coverage: 9/11 Case

2/23 Session: The "Touhy" Edition

By Matthew Weybrecht
Thursday, March 3, 2016, 2:56 PM

We pick up the February 23 session in the afternoon, with Col. Pohl presiding. (Transcripts from the morning session were not released.) Khalid Sheikh Mohammad, who was absent in the morning session, has joined.

Judge review of unredacted versions of documents (AE 112)

The defense begins by explaining its motion for compelling discovery of unredacted versions of documents obtained under FOIA requests, specifically Appellate Exhibit (AE) 112. At issue, is whether the judge is allowed to see what is behind the redactions (or “deletions,” which defense says is the same thing). Counsel argues that there has to be judicial review of the discovery process, both so that the judge can ensure that the government’s explanation for redaction is valid, as well as to preserve the unredacted versions for appellate review.

Defense then offers a 2013 example where the judge ordered the government to provide him with unredacted versions of AE 167 in order to review. There the judge ruled that the government’s proposed redactions were not proper. Defense concludes the argument stressing the need for the judge to see the unredacted versions of AE 112.

Prosecution briefly requests an order that structures and consolidates the discovery of AE 397.

The process for compelling agency witnesses (AE 386)

The focus now shifts to AE 386, with the primary concern being how Touhy applies. (Touhy refers to the process wherein Congress delegated authority to executive agencies to establish rules governing the conduct of their employees as well as for when they may refuse to produce records, papers, and property.) Defense points out that there are three distinct questions here. First, does the CIA Touhy regulation exceed congressional delegation of power under 5 USC §301? Second, does the CIA Touhy regulation even govern the military commission process? And third, does the CIA Touhy regulation impose an unconstitutionally nonreciprocal burden on the defense?

First. Defense notes that AE “386B is, God help us, an administrative law question.” The CIA Touhy regulation seeks to cover former employees “to the extent provided by applicable nondisclosure agreements.” But §301 says nothing of former employees, so defense argues that this part of the regulation falls outside the congressional delegation. Defense cites to a district court decision from 1979 in support, recognizing the paucity of authority on the issue. Defense also notes that the definition of “employee” includes contractors with a current employment relationship with the CIA.

Defense frames the purpose of §301 as one of protecting government resources so that private litigants cannot compel government employees to be expert witnesses for them. When viewed this way, he argues, there is no reason for extending the regulation to former employees.

Second. The discussion now turns to AE 386A: Does the Touhy regulation govern the defense’s request for the testimony of a former CIA interpreter? The regulation states, “No [former employee to the extent consistent with applicable nondisclosure agreements] shall produce any materials or information in response to a demand without prior authorization as set forth in this part.”

Defense argues that this language requires a judicial determination of whether the potential witness falls under the “applicable disclosure agreements,” and that the government has not carried its burden to show that the regulation even applies to this witness. (The judge later confirmed that if the government produced this evidence, this specific argument for the defense would go away. But it would not defeat the defense’s other Touhy arguments.)

Moreover, the limitation only applies when the CIA is not a party and, the defense argues, here the CIA should be considered a party because the United States is a party. Defense points out that the Office of the Chief Prosecutor (CP) is speaking on behalf of the entire government (which enables them to raise an objection under Touhy. It would be inconsistent for the CP to be able to object under Touhy on behalf of the CIA, but then claim the CIA is not a party. What’s more, the CIA had operational control over Guantanamo for at least some portion of the time the defendants were held there.

The judge asks whether Touhy will never apply to any government agency when the United States is a defendant in a civil or criminal proceeding. The defense asserts that this definitely is the case in civil proceedings, citing Alexander v. FBI, 186 F.R.D. 148 (D.D.C. 1998). Defense then notes that since everything here is routed through the CP, there is no chance that a CIA employee would respond to a request without the CIA knowing about it.

Third. This brings us to the last question regarding 386: Does Touhy as applied here impose an unconstitutional nonreciprocal burden on the defense? The defense argues that the detailed information required for in a Touhy request requires the defense to share strategies with the prosecution without any additional burden on the government, citing Wardius v. Oregon, 412 U.S. 470 (1973) and United States v. Bahamonde, 445 F.3d 1225 (9th Cir. 2006).

The Government Responds

The government responds by framing §301 as not primarily about protecting an agency’s time but rather the flow of sensitive information and ensuring that each agency can make a centralized decision about when to disclose or when to challenge disclosure requests. Using this rationale, a former CIA employee could just as easily as a current employee reveal sensitive information that the CIA would challenge.

The government also asserts that there is an obligation in the interpreter’s nondisclosure agreement (NDA) that requires the CIA to have the opportunity to analyze information he would provide as testimony.

The government distinguishes the 1979 district court case upon which the defense relied by pointing out that there, the agency itself did not care. It was a private party citing Touhy for his own benefit. By contrast, the government points to Snepp v. United States, 444 U.S. 507 (1980), a case concerning prepublication review, in which the Supreme Court held that a former CIA employee was bound by his NDA.

Furthermore, the government answers defense’s contention that the CIA is a party because the United States is a party by pointing out that Touhy was applied in cases involving DoJ employees. This undercuts the idea that a government prosecutor speaks for all U.S. agencies, since even DoJ as an agency had Touhy interests for its employee even when another arm of the same agency was prosecuting. The government summarizes by arguing that there is little precedent for the idea that every agency becomes a party simply because there is a criminal case before the court. The United States, as a sovereign, is the party, not the independent agencies.

The government then contests the idea that applying Touhy here would be unconstitutionally nonreciprocal. First, Wardius and Bahamonde are distinguished. Second, the defense would probably not be required to submit any additional information under Touhy than they already provided in their notice, so there’s not really any burden.

In sum, the government contends that “[i]f the defense seeks to call anyone from any agency, Touhy applies.” The only exception was a circumstance like Bahamonde, where the agency arguing for Touhy was intimately involved in the investigation and/or prosecution of the case, which does not apply to the CIA here.

The judge asks whether this means the CP can waive Touhy on behalf of any agency. The government says no.

Finally, the government cites to an Eastern District of Virginia case for the proposition that even in nonreciprocal cases, the imbalance can be justified when there is a strong state interest, especially one involving classified information or national defense information.

The Defense Rebuts

Concerning the existence of an NDA as a prerequisite for seeking to bring a former CIA employee within the gambit of Touhy, defense contends that a generic NDA will not suffice. Rather, an NDA must have something specific in it that makes Touhy attach.

Defense also points out that, if the government is correct that defense’s previous motions contained all the information that would be required by the CIA Touhy regulation, then none of the purposes of Touhy are served by making the defense go through the formality of filling them out.

The judge pushes back that an actual Touhy request puts the agency on notice of what defense is requesting. Touhy also makes administration of the proceedings more efficient, so the judge immediately knows what defense is requesting and what the government is denying. He doesn’t want to have to read between the lines.

Defense makes a few final arguments, noting that under Touhy the agency can order their employee not to do something, but that this makes less sense if applied to a former employee (since the agency can’t tell her to do much of anything).

At this point, the judge summarizes defense’s position on the Touhy process as follows: Defense requests a deposition from an agency witness. The subpoena is served directly to the agency. The agency then shows up in court saying they will not produce the witness because the defense failed to provide a Touhy notice. The judge then rules on whether a Touhy notice is required. If a Touhy notice is required and submitted, the judge then rules on whether it is sufficient.

The government essentially agrees that this is the process, and the commission goes into recess.

Security of GTMO and the attorney-client privilege (AE 018 Series)

After calling the commission back to order, the parties and the judge spend some time trying to figure out which issue to discuss next. After some discussion, they decide on AE 018Y, which is the government’s motion for an interim order. The issue is how to balance the security needs of the Joint Task Force Guantanamo (JTF-GTMO) regarding monitoring communications, with the protection of privileged communications between attorney-client.

The interim order in question sets out a rational basis-type standard wherein the government must show “a rational connection between the order and the legitimate government interest of protecting both national security and the safety of guards….” The commission, the prosecution argues, should defer to the administrators of the detention facility, citing among other cases Bell v. Wolfish, 441 U.S. 520 (1979), which found that reasonable measures to maintain security do not violate the Constitution.

The Prosecution

Brigadier General Mark Martins argues for the prosecution. He contends that this order, which protects attorney-client information, is being used to circumvent the security of JTF-GTMO. He cites a Red Cross message from Khalid Sheikh Mohammad’s (KSM) wife which said, “The letters you sent through the attorneys as an experiment have reached us.” He also argues that other non-privileged communications have been discovered has having gone through privileged channels. In other words, the defendants are intentionally using privilege to send non-case related material in and out of GTMO.

Defense Responds

Defense responds by first contesting the prosecution’s facts, or more accurately, the prosecution’s interpretation of the facts. Defense contends that they took the letter from KSM’s wife to the GTMO Staff Judge Advocate (SJA), who cleared them to send. The “experiment,” according to defense, had to do with the length of time it took to reach her. A similar argument is made for the other instances.

More to the point, defense contends that the protective orders do nothing to limit outgoing communications so long as the material is deemed unclassified. The judge pushes back and asks whether GTMO has an internal regulation governing the screening of mail. In other words, even if unclassified communications don’t fall directly under any of the military commission’s orders, this doesn’t address the point the government makes that the facility itself has discretion to establish restrictions to outgoing mail. Defense concedes that GTMO rules do not allow detainees to send or receive whatever unclassified material they want. The discussion then returns to the actual protective order itself.

The process at issue, explained in AE 018U, allows the defense attorney authority to determine whether a privileged communication is clearly unclassified and treat it accordingly. If there is any question, however, they must provide it to the Defense Information Security Officer (DISO), who then runs it through any interested agencies to get clearance. Once it is cleared, counsel treats it as any other privileged communication and can release it or protect it according to strategy or client needs. Defense then makes the strong statement that “essentially every communication from [his client] to me for whatever purpose is either lawyer-client privileged communication or other case-related material.”

The judge asks whether, even if defense counsel sends a communication to a third party such as an NGO, the communication remains privileged. Defense responds by arguing that if the recipient has a confidentiality agreement with counsel, the communication remains privileged.

This can’t mean that anything the client sends to the attorney is protected, for example a threat against the President. Defense concedes this point, but says that these types of communications are already included in the exceptions to attorney-client privilege and confidentiality. Absent these exceptions, he summarizes, every unclassified communication from his client to him is protected and does not fall under 018U.

Furthermore, the defense argues, the government’s real concern here is screening mail for intelligence purposes (document exploitation, or DOCEX). But this falls outside the scope of 018U, and 018U should not be expanded to cover anything additional except, perhaps, communications that violate existing laws, e.g. material support, fraud, etc.

The defense counsel for Mr. Hawsawi joins the argument just put forth.

The judge ends discussion for the day and sets the agenda for tomorrow, which includes testimony from a witness, Mr. Binalshibh. After a brief discussion on procedure (such as security measures for witnesses, where they sit, etc), the judge puts the commission in recess for the day.