Judge Pohl begins with the usual business. We are now going on day four with no Bin ‘Attash. As for changes to the legal staff, James Connell, counsel for al-Baluchi, notes the absence of their linguist due to a family emergency, and though he is prepared to proceed, wants to “note the fragility of a system that only has one linguist available in it.” A major is called to testify that he met with Bin ‘Attash, notified him of the hearing, and that Bin ‘Attash signed a statement acknowledging he understands his right to be present. Despite everyone’s best efforts, he still declined.
Sealing Exhibits 112K, L, and M.
First order of business, trial counsel has something it would like to discuss. It seems Exhibits 112 K, L, and M may contain classified information, so the government would like those exhibits sealed fully until it gets more information on the classified nature of the documents. Judge Pohl wants to know more about the overlap between the documents the government wants sealed here, and related documents that were apparently previously released under a FOIA request, that were redacted in part. Prosecutor Jeffrey Groharing wants this moved into a closed session, but Judge Pohl knows what he’s doing and isn’t going to ask about classified material. The exchange continues,
Judge Pohl: I’m going to use a double verb here, they redacted some of the FOIA redactions and put them in a discoverable document.
Judge Pohl: Unredacted, yes, a better term.
Groharing: I don’t know if that’s a word either.
Finally, we get to the bottom of it – the focus “is the new information that was not redacted in the released documents.” It seems there was a FOIA release, and a subsequent discovery released with portions unredacted, and now a concern that those documents should be sealed pending classification review. Defense counsel, Mr. Connell, thinks only one of the exhibits—112L—is the subject of controversy, and so objects to sealing K and M. Mr. Groharing is still anxious that we’re discussing these things in an open session. Mr. Connell is noticeable irritated: “I’m not tracking what I said that was classified.” Connell similarly wants to prospectively object to the redaction of the public transcript here because the Fifth and Sixth Amendments guarantee a right to a public trial. (He apparently wins this fight since we have access.) Judge Pohl is convinced though: “Seems to me to resolve this issue we’ve got to discuss it in a closed session.” Connell is concerned about remediation and wants to discuss it. Judge Pohl says we’ll cross that bridge when we get to it but he isn’t worried: “I’m not hearing anything from Mr. Groharing at this point that would indicate that there’s an issue with the defense counsel doing anything wrong, as much as there’s an issue that perhaps the big G in the sky permitted, perhaps, a spillage.”
Connell knows something Judge Pohl doesn’t:
Connell: I have just one more comment I’d like to make on that, is that the General Baker issue is not so much my defense of institutional military commission defensive organization interests, it’s really defense of Mr. Al Baluchi’s interests, because, you know, making sure that you’re not the highest ranking person with a secret is an important way to protect yourself. And my supervisor is Brigadier General Baker and, you know, get left holding the bag if I’m the highest-ranking person holding the secret.
Judge Pohl: I’m not quite sure what that means.
Connell: I think you will once you know what the spillage is.
David Nevin, counsel for KSM, pipes up to say he thinks we can have the discussion of this “spillage” right here, right now, in an open session. He wants the public to get the chance to assess how the process “gets hamstrung by these kinds of claims.” Judge Pohl wants the background in a closed session though, and Mr. Nevin requests that session be scheduled for tomorrow. Judge Pohl grants the motion to temporarily seal the documents, notes that it will be discussed in a closed session the following day, with a likelihood that it will then be discussed in an open session. Connell wants to raise an objection to the “tomorrow idea,” noting his position that the public and the media need notice. Judge Pohl says he’s giving the notice now, and questions how helpful the notice really is: “Quite frankly, I’m not sure what value there is to the public to say, ‘Oh, by the way, we’re going to discuss something in a closed session. We’re not going to tell you what it is, but you’re free to object to it.’ Anyway, that is the procedure and that’s what I’ll do.” Judge Pohl, by the book.
The Defense Calls Binalshibh
James Harrington calls his client, Binalshibh, to the stand. Judge Pohl notes that the issues Binalshibh is testifying on are current camp conditions, not past treatment, and if he goes off topic, it will need to be addressed accordingly.
The witness is sworn in by Chief Prosecutor BG Mark Martins. Harrington notes that he is going to do his questioning in English and the witness will answer in English. First, Harrington asks yes or no questions about past treatment, specifically whether the witness was subjected to torture through the use of vibrations. “Yes.” The defense introduces the Senate Torture Report, asking Binalshibh whether the vibrations are described therein: “no.” Binalshibh says noises and vibrations have been used against him as long as he has been in US custody. He describes their effects: they “make all my life terrible, make it upside down. You cannot concentrate, you cannot read, you cannot sleep, you cannot pray, you cannot do any of this because of living with this condition day and night. 24 hours a day.” Since getting to Guantánamo, Binalshibh says there has been “banging on [his] cell.” Harrington asks what last night was like for him and Binalshibh describes trying to get his preparation for trial done on his laptop but being disrupted by these noises and vibrations. He says he was also unable to sleep because the vibrations would start every 30 or 40 minutes. He says he called the intercom (the system detainees can use to ask for things from the guard in the control room – water, toilet paper, to go to their rec yards, etc.) to ask for it to stop, but the guard on the intercom denied anything was happening.
Next, Harrington asks Binalshibh if he’s heard “bird noises” since he’s been at Guantánamo. Binalshibh says yes. Mr. Harrington wants to introduce a memo to Judge Pohl that says the government isn’t going to use Binalshibh’s hearing of bird noises to attack his competence because there were, in fact, “devices . . . at the camp that enable the camp to broadcast artificial bird noises.” Harrington continues his questioning. Binalshibh thinks the guards are organized in these efforts: “they were doing these things in a professional way. Certain times vibrations, certain times noises, certain times quiet, certain times banging.” Binalshibh testifies that the vibrations start when he tries to write letters or work on his laptop to prepare for commissions hearings. He thinks it is a coordinated effort to interrupt concentration.
Binalshibh is asked to describe the vibrations: “It’s like sitting in the car while the car is – the engine – the engine machine is on. . . . it is very annoying, very destructive . . . if they just do it in very low level, it’s bad. If they put it up, you can . . . go crazy.” As the questioning continues, it appears Binalshibh is experiencing a targeted vibration. Harrington asks where he feels it: “if I’m lying down, I’m sleeping, they keep moving it from my – say from my stomach or legs back and forth to my feet, and goes on and off.”
Binalshibh says he complains daily about the vibrations, but the guards have never checked his cell. After some discussion of the guards ignoring his requests to stop the vibration, Harrington shifts to how Binalshibh complains: “do you ever yell at people?” Binalshibh admits: “Yes, sometimes. Many times.” He explains that it’s because the vibrations drive you crazy, but that he always asks nicely at first. He says that since Judge Pohl’s order that any noises or vibrations being used against Binalshibh stop, the situation has remained the same. He does note that one female guard has been helpful to him and made the situation somewhat better.
The noises and vibrations are, according to the defendant, interfering with his ability to work with his defense team. He can’t review documents sent by his legal team, and his ability to write letters responding to their questions is impeded. He says it’s all he can discuss with his legal team when he meets with them and wants to be able to talk about his case. Harrington asks if he has to cancel meetings with his defense team: “even though your team has come all the way from Washington down here, sometimes you cancel the meetings because of your distress; is that right?” “Yes.”
Harrington turns to the elephant in the room competence question: “you’re aware . . . that when . . . the prosecution asked for a hearing about your competence, they made a claim that what you have testified today is a delusion in your mind . . . ?” Binalshibh understands. Harrington asks about whether he’s seen psychiatrists. He says yes, but not by choice. He elaborates on his dislike for his first psychiatrist who prescribed medication in response to the bird noises complaints, but Binalshibh says all the detainees hear the bird noises: “injections that make me completely dead in my bed . . . I couldn’t even feed myself by myself” because the injections cause severe shaking. Binalshibh’s ultimate assessment of this first psychiatrist: “I think she is [a] war criminal.” And all psychiatrists since then “just copy and paste what she said without even knowing [him] or interviewing [him].”
Binalshibh is off on a monologue. Judge Pohl jumps in: “let Mr. Harrington ask you questions and he can kind of direct you the way the answer has got to be . . . we have got to use a question and answer format.”
Binalshibh says he is now under the psychiatric care of a Dr. Homer, and not on any medication.
Harrington wants to know if Binalshibh participates in the Guantanamo social program, “DSMP,” which Binalshibh describes as, “meetings with some . . . psychology doctors and they claim this is for social activities . . . [to] talk with people, know each other, watching [a] movie or playing [a] game or such things.” Binalshibh used to go but doesn’t anymore – the program stopped in 2015, he says.
Harrington asks Binalshibh if the noises and vibrations bring back feelings he had in his pre-Guantánamo treatment in custody. “Same feelings, yes.” “Does that make it very hard for you to deal with [the noises and vibrations]?” Binalshibh responds, “it is very hard to deal with it…” But now Binalshibh remembers how this is supposed to work and instructs his defense counsel to ask him why:
Binalshibh: It is very hard to deal with it and say – just bring me the question why.
Binalshibh: Yes. Are you asking or am I asking?
Harrington: I’m asking why.
Binalshibh: Okay. Good.
After the witness describes the initial attempt to get him to cooperate with promises of “safety, good life, good future”, he says that stopped after the first psychiatrist determined he was not helpful. Mr. Harrington has no further questions. The prosecution, Clay Trivett, does have questions, but requests a “health and comfort break.”
[15 Minute Recess]
Binalshibh Cross Examination
Mr. Trivett is on for cross-examination of Binalshibh. Trivett first asks if anything would convince Binalshibh that the noises weren’t being done on purpose. No, nothing would convince him. Trivett turns again to the specifics of the complaints – what kinds of noises in the first complaint (answer: banging), coming from where (answer: first from the neighboring cell, then from the rec yard behind his cell). Mr. Trivett wants to know if the noises coming from behind Binalshibh’s toilet could be from pipes in the wall. “No . . . I know it from the black site. They use the same method.”
Mr. Trivett turns to the defendant’s 2013 declaration. The defendant reads from it: “[T]hey can make noises [come] from any places in your cell. That can banging your walls; they can banging from fences outside your Charlie rec; they can make banging from the showers.” We go on for some time on the specifics of the noises and where Binalshibh believes they are coming from, whether he can see the machines he believes people are controlling to make the sounds. Binalshibh says he knows it is machines because when the power goes off at Guantánamo, the noises stop. We repeat the exercise for all of the sound categories: the knocking, the cracking, the buzzing. Trivett wants details. He wants to know about whether Binalshibh has been given ear protection – yes, specially made earplugs from the doctors, but it doesn’t help.
Trivett’s found a gotcha moment: “Do you ever feel them in the courtroom?” “The noises? No, I don’t think the noise is there. Maybe they have the vibration, other things, maybe they still have it here. . . . “ Mr. Trivett wants to be sure: “So you think it’s possible that the guards have – did the vibrations in the courtroom?” Confirmed: “I believe they have it everywhere.” But just to be sure, one more question: “Everywhere you go?” Answer: “Every place. Yes.”
Judge Pohl jumps in with some questions of his own: “Mr. Binalshibh, you indicated that you felt this in your attorney room meetings? “Yes.” “Were your attorneys there with you at the time or was this before they came to the meeting or after they left?” Binalshibh clarifies that it’s usually when he’s by himself: “Especially when they are leaving, if nobody is there, just me by myself.”
Judge Pohl hands it back to Mr. Trivett, who now wants to talk about Binalshibh’s meetings with the first psychiatrist. Trivett suggests to the defendant that the first psychiatrist with whom he met (the psychiatrist that, Mr. Trivett helpfully reminds us, Binalshibh refers to as a “war criminal”) actually looked into his complaints and “didn’t just automatically make the assumption that [he was] hallucinating.” Binalshibh isn’t convinced. He knows the psychiatrists are generally in on it from his time at the black site.
Now Mr. Trivett gets scientific. He wants to know whether Binalshibh was told about the potential side affects of the injections he would receive—“tardive dyskinesia,” specifically. Binalshibh doesn’t know the term, but Trivett suggests the tiredness is this side effect. He wants to know if the medication worked—did Binalshibh hear the vibrations after receiving it? Binalshibh already told him the vibrations didn’t start until later; it was the banging and the temperature issues at first. After the vibrations started, he says he didn’t complain for a while because he knew it would get worse if he complained. Then Trivett asks about the switch to a pill medication that Binalshibh “started taking . . . voluntarily.” “Not voluntarily, they forced it.” Mr. Trivett clarifies that no one forced him to swallow it. Binalshibh retorts that he was told it was that or back to the injections. Trivett asks whether it is true that in the six months that he was on the injections, he wasn’t complaining about the noises and vibrations. Binalshibh says he was “completely dead” but still complaining. Mr. Trivett’s point is that the complaints aren’t in the records. Binalshibh unsurprisingly thinks the records are not to be trusted.
At the end of a long exchange about Binalshibh’s sleeping patterns, Mr. Trivett asks essentially how Binalshibh could expect to sleep at night after what he did:
Trivett: So you say you never had anywhere from more than four to six hours of sleep without disruptions?
Trivett: Do you remember your dreams when you wake up from your sleep?
Trivett: Do you ever dream about the people that were killed on September 11, 2001?
Needless to say, objection sustained.
Now Trivett wants to know about Binalshibh’s assessment of the female guards. The defendant says he didn’t have a problem with female guards until the newest guards arrived. Trivett asks about a letter Binalshibh allegedly wrote to the camp commander entitled, “these are the rules for the females in Camp VII.” Binalshibh acknowledges the letter, but a few questions down this line, his defense objects that this is irrelevant and just trying to show something about bias against females. Mr. Trivett wants to explore the idea that Binalshibh is “lying and . . . fighting the jihad against the guards in the camp. . . . I want to be able to establish specifically he believes the guard force is his enemy, the United States is his enemy, and that gives him a motive to lie.” Objection sustained as to the female guards, and Judge Pohl isn’t all that impressed with Trivett:
Judge Pohl: I mean, Mr. Trivett . . .
Trivett: Yes, sir.
Judge Pohl: . . . why are they here?
Trivett: Why is who here?
Judge Pohl: Why are we in this trial? Because of the accusations made against these accused.
Judge Pohl: So you want to . . . you feel you need to explore the very basis of why we’re here to show bias. I will give you some leeway, but just not much.
After a few more questions and some objections, Judge Pohl declares, “this line of bias question is over.”
Back to his interactions with the guards. Trivett quotes Binalshibh yelling at one of the female guards: “You slut. I have your profile. I have your physical profile. I know how many push-ups and sit-ups you do. It’s quite impressive. I will tell ISIS. Good luck with your life and, by the way, I also have your social media. Good luck.” Binalshibh says he can’t confirm that’s exactly what he said, so Trivett says they can go part by part. Yes’s and maybe’s to the first parts of the statement. Then Trivett asks about the threat to tell ISIS about the guard, and Binalshibh claims he was just being helpful: “Some females want to join ISIS. They told me they want to join ISIS; so they want to join ISIS, not me.” Mr. Trivett wants to get this straight: “So you think some of the guards in Camp VII want to join ISIS? . . . They told you that?” Binalshibh claims yes, “some.” Finally Trivett asks, “So when you were offering to tell ISIS about her, was that so they could recruit her or were you threatening her with death?” Binalshibh: “This depend[s] on the context.” Well, alright, then.
And back to the specifics of the bird noises, complaints, whether they stopped after the complaints, stopped after whose complaints exactly…. Judge Pohl is all of us. He’s growing weary: “Mr. Trivett, how much more do you have?” Mercifully, after a few more questions on Binalshibh’s better relationship with his current psychiatrist, Dr. Homer, Mr. Trivett has no further questions.
After laying out the scheduling plan (Harrington’s redirect of Binalshibh, followed by a session of the mail release issue), Judge Pohl breaks for lunch.
After Lunch, Back to the 018Y Issue
After a brief redirect of Binalshibh, we are done with testimony for the day but there’s still the 018Y matter to sort out. The issue here is that defense counsel is alleged to have released certain mail from the detainees to NGOs and media outlets. There is a complicated discussion of how exactly the Guantánamo mail is reviewed.
Mr. Nevin points out that “non-legal mail . . . does not get out of the camp.” Judge Pohl hesitantly asks, “Just so I am clear, the USPS delivers non-legal mail into the camp?” Mr. Nevin responds, “No.” Judge Pohl and Nevin walk through the current mail system: non-legal mail is limited to the two Red Cross letters allowed per month from detainees to family, but legal mail that is necessary for representation is not similarly restricted. Judge Pohl then reveals that even he sometimes gets mail from Guantánamo detainees! He seems concerned with the non-legal mail screening due to this. Nevin clarifies that mail to a judge, or to the President, or to a member of Congress, or to state Senators are designated “special mail” and not reviewed for content. Judge Pohl clarifies that sometimes he gets mail personally addressed to him, not addressed to “Judge” but to his official address. Nevin listens dutifully: “I see.” Mr. Nevin points out that attorneys in capital cases have an obligation to keep the defendant as “embedded in the fabric of the family” as much as possible, in order to develop mitigation evidence.
Walter Ruiz, al Hawsawi’s defense counsel, wants to specifically point out that the documents go through classification review and that these are documents that multiple security agencies have all signed off on as being no threat to national security. Ruiz to Judge Pohl: “what is going on here is not really a national security or threat assessment issue, but really what is going on here and what is at the heart of this issue is the prosecution’s and the government’s desire to engage themselves in censoring information. . . . to constrain and to narrow the scope of information that is available to the public.” According to Ruiz, this whole issue is simply a result of the government not “lik[ing] whatever the subject matter of the documents were and where they went.”
Chief Prosecutor BG Martins wants judicial notice of facts from the record in the al Bahlul trial. The defense is decidedly anxious about not having heard of this until now. Judge Pohl says he isn’t going to hear it until the defense can review.
Now it’s General Martin’s turn to explain why Judge Pohl’s previous order regarding the mail processing left gaps that now need to be clarified and filled because the defense should not be able to release information in this way. The prosecution’s position is that once legal mail goes to defense counsel, if the counsel wants to then later release it, it must allow the camp specifically to review it: “It’s not good enough to give it to the classification review system . . . they are being relied upon improperly as the whole equity of the government.” The discussion continues for some time until Judge Pohl becomes frustrated: “You know, General Martins, when you and I have these discussions, sometimes I feel like we are just not communicating very well.” Judge Pohl thinks this is a definitional problem of the difference between legal mail and non-legal mail.
Judge Pohl has marginally more success nailing down this definitional problem with Mr. Connell, who answers affirmatively when the Judge asks whether he defines legal mail broadly, and whether it would include lobbying efforts to NGOs. Connell also points out that SOUTHCOM is one of the agencies that gets to review so he isn’t clear why that doesn’t represent the interests of the camp. Connell also suggests that if the government’s concern is security, the solution is to get the defense counsel a privileged security review process.
Judge Pohl says the relief sought in the government’s motion is unclear and asks the government to get back to him on exactly what they are asking for before he decided.
After a brief discussion of other loose ends and motions, the commission is in recess, heading into a closed afternoon session.
After the proceedings, Chief Prosecutor Mark Martins issued the following statement:
CHIEF PROSECUTOR MARK MARTINS
REMARKS AT GUANTANAMO BAY
26 FEBRUARY 2016
Good afternoon. Members of the media will be aware that after fulfilling my duty to answer questions following weeks of commission proceedings, I always close by thanking the Soldiers, Sailors, Airmen, Marines, and Coast Guardsmen of Joint Task Force Guantanamo, Naval Station Guantanamo Bay, and Joint Base Andrews. Today I am going to begin by doing so. Troops: your unsung daily sacrifices and those of your families are deeply appreciated, and the conduct of these military justice hearings would not be possible without your professionalism and discipline and strength. So thank you.
Thank you also for opening your arms and your hearts to the wounded and to the familymembers of the fallen of September 11th. You do this every time a separate group of survivors and family members comes to Guantanamo to observe proceedings, and every single time you ensure that it is an individualized and warm bear hug by the United States armed forces of these cherished citizens. Of course, most of you first raised your right hands and took the oath to support and defend the Constitution after the September 11th attacks, and among the most important reasons you cite for enlisting is to defend these citizens. Citizens such as Timothy Stout, who worked as a quality assurance analyst at Cantor Fitzgerald on the 103rd floor of the World Trade Center. Timothy took his position at Cantor in the year 2000 so he could spend more time at home with his three children. Before dawn, he would kiss his wife and peek at the kids while all were still asleep. And then all day, while working in Manhattan, he would look forward to coming home to them in the evening. On the morning of September 11th, Timothy’s beloved wife happened to be awake for their parting kiss. Timothy’s brother, Jordan, and brother-in-law, Scott Duncan, were here this week, and I know they share my appreciation for the many large and small things military servicemembers do for them and for all Americans.
Today the Military Commission convened to try Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi completed another series of pre-trial sessions to resolve disputes regarding outstanding legal and evidentiary issues. These past two weeks, the Commission addressed several matters by examining the parties’ written briefs, hearing oral argument, and taking testimony from four witnesses in more than four hours of testimony.
Before I briefly summarize these matters, I emphasize that the charges against the Accused are only allegations. The Accused are presumed innocent unless and until proven guilty beyond a reasonable doubt. Matters under consideration by a military commission in this or any other particular case are authoritatively dealt with by the presiding Judge. Any comments addressing systemic issues that are the subject of frequent questions by interested observers should always be understood to defer to specific judicial rulings, if applicable.
Motions Related to the Discovery of Classified Information
When we last spoke, I mentioned that, on 24 June 2014, the United States v. Al Nashiri Commission established a ten-category construct “to focus the Prosecution’s analysis of information as it unilaterally fulfills its discovery obligations and responds to current and future discovery requests” from the defense for information regarding the CIA’s former Rendition, Detention, and Interrogation (“RDI”) Program. During oral argument last week in United States v. Mohammad, et al., the prosecution reiterated what it had already made clear in Appellate Exhibit 397—that it had agreed to produce to the defense discoverable information falling within the Al Nashiri ten-category construct. See also AE 308A. This information, albeit small in proportion to what has already been provided, is substantial in absolute terms. For those items, many of which are classified, the government is in the process of identifying appropriate substitutions and other relief, using the classified-information procedures of the Military Commissions Act of 2009 (“M.C.A.”), to prevent damage to the national security.
In fact, the prosecution has invoked these procedures by requesting substitutions and nother relief for four of the ten categories of information in the ten category construct. See 10 U.S.C. § 949p-4(b)(1)-(3); see also 10 U.S.C. § 949p-6(d). On Monday, 15 February, prosecution lawyers met with the MilitaryJudge for an ex parte, in camera presentation under 10 U.S.C. § 949p-4(b)(1) and Military Commission Rule of Evidence (“M.C.R.E.”) 505(f)(2)(B) regarding these requests. Under this rule, the prosecution may request substitutions and other relief from classified discovery “in the form of an ex parte presentation to the extent necessary to protect classified information, in accordance with the practice of the Federal courts under the Classified Information Procedures Act (18 U.S.C. App.).” The rule requires a military judge to seal and preserve the presentation for appellate review, if the military judge grants relief after the presentation. Under 10 U.S.C. § 949p-4(b)(3) and M.C.R.E. 505(f)(2)(C), the military judge must grant relief if he finds that it “would provide the accused with substantially the same ability to make a defense as would discovery of or access to the specific classified information.” When sessions resumed on Tuesday, 16 February, the Military Judge noted that he had conducted the hearing and that the presentation was preserved in the record for appellate review Unofficial/Unauthenticated Transcript (“Tr.”) at 10188. He has taken the requests for relief under advisement.
On Thursday, 18 February, and beginning again on Monday, 22 February, the Judge continued argument on a series of motions to compel the production of discoverable information relating to the CIA’s former RDI Program. The Judge heard oral argument (some of it in a closed session under Rule for Military Commissions (“R.M.C.”) 806) on the following matters and then took them under advisement:
• Appellate Exhibit 397, a government response to the Military Judge’s order directing the government to propose consolidation of motions relating to the CIA’s former RDI Program;
• Appellate Exhibit 112, a defense motion to compel production of discovery related to White House and Department of Justice consideration of the former CIA RDI Program;
• Appellate Exhibit 114, a defense motion to compel production of information related to buildings in which the Accused or a potential witness has been held;
• Appellate Exhibit 114F, a defense motion to compel the government to grant defense counsel access to buildings and locations in which the Accused may have been confined;
• Appellate Exhibit 190, a defense motion to compel the production of information relating to statements made by Mr. Ali or a potential witness at a detention facility;
• Appellate Exhibit 191, a defense motion to compel production certain information;
• Appellate Exhibit 195, a defense motion to compel production of communications between government and the filmmakers of “Zero Dark Thirty”; and
• Appellate Exhibit 252, a defense motion to compel discovery of non-redacted discovery marked “MEM."
On Friday, 19 February, and Wednesday, 24 February, the Commission met with defense and prosecution lawyers for an in camera hearing under M.C.R.E.505(h) to make a determination regarding the use, relevance, or admissibility of classified information that certain defense counsel sought to discuss during a future session on the merits of defense motions listed on the Amended Docket Order. See AE 402C; AE 402D; AE 402E (granting request for an M.C.R.E. 505(h) hearing on Appellate Exhibits 254Y, 396, 397, 112, 114, 114F, 190, and 191); see AE 402F (granting request for an M.C.R.E. 505(h) hearing on Appellate Exhibit 400 in part and Appellate Exhibit 112). Once a commission grants a request to hold an M.C.R.E. 505(h) hearing about classified material that may relate to a motion to be litigated later, the parties will not litigate the merits of the underlying motion itself—that takes place in a session later, and such sessions are to be as open as possible. One purpose of such a hearing, which in cases involving fewer defense lawyers and prosecutors can often be held in a judge’s chambers, is to isolate and minimize that portion of proceedings that truly may need to be closed.
After holding the in camera hearings, the Commission determined that there was a need to conduct a closed session under R.M.C. 806 regarding Appellate Exhibits 114, 114F, 190, 191, 254Y, 396, and 400. AE 396D; AE 114M; AE 114N; AE 190H; AE 191H; AE 254UUUU; AE 400G. As I have previously mentioned, a closed session must meet the same strict criteria demanded in federal civilian criminal trials—namely, the Press-Enterprise II factors and thus must be as narrowly tailored as possible, preserving on the record the rationale and basis for civilian appellate court review. This means that the proceedings must be open unless (1) there is a substantial probability that an overriding interest will be prejudiced if the proceedings remain open; (2) closure is no broader than necessary to protect the overriding interest; (3) reasonable alternatives to closure were considered and found inadequate; and (4) the judge makes casespecific findings on the record justifying closure.
On 25 February 2016, the Commission held a closed session, taking testimony from two witnesses on Appellate Exhibit 254Y and hearing oral argument on Appellate Exhibits 114, 114F, 190, 191, 254Y, and 400. The closed session lasted four hours and 17 minutes. Of the more than 34 hours of sessions these past two weeks, only 12.5 percent were closed. This percentage will decrease when the Commission releases the transcript of the closed session, excising only classified information. To date, the Commission has held four closed sessions.
Total closure comprising these four closed sessions amounts to approximately 3.1 percent of the proceedings to date. This means that even for a pre-trial process involving several challenges and other matters implicating classified information, approximately 96.9 percent of that process has been open to the public. Moreover, the government is committed to ensuring that all of its evidence presented in the case-in-chief at trial will be in open court.
Other Matters Addressed by the Commission
Also during these pre-trial sessions, the Judge revisited a matter that arose in October 2015 when Mr. Bin ‘Attash indicated his desire to terminate his civilian learned counsel’s representation. After conducting an ex parte closed meeting in October (involving only Mr. Bin ‘Attash, his team of defense lawyers, and the Judge and judicial staff), the Judge declined to terminate learned counsel’s representation of Mr. Bin ‘Attash because he failed to show good cause for termination. Then, on 16 and 17 February 2016, Mr. Bin ‘Attash reiterated his desire to terminate his learned counsel’s representation and sought to terminate another civilian counsel’s representation. Again finding no good cause, the Judge declined to terminate either civilian counsel’s representation. He also denied, without prejudice, learned counsel’s motion to withdraw. Tr. at 10290. The Judge however did grant Mr. Bin ‘Attash an independent counsel to advise and assist him on termination-of-counsel issues. Id. at 10243-44; AE 380II.
The Judge also took up the following matters during these pre-trial sessions.
• The Judge heard oral argument on Appellate Exhibit 396, Mr. Ali’s notice of his position on “pending classification review,” and took the matter under advisement.
• The Judge heard oral argument on Appellate Exhibit 406, Mr. Mohammad’s motion to abate the proceedings until the government grants his interpreter’s security clearance. He denied the motion to abate the proceedings but ordered the government to update the Commission, by 15 March 2016, on the status of the interpreter’s indoctrination into the special access program for accessing certain classified information. Tr. at 10331.
• The Judge heard oral argument from the parties and counsel for 15 news organizations on Appellate Exhibit 400, the news organizations’ motion to unredact the 30 October 2015 transcript. The Judge took the motion under advisement.
• The Judge heard oral argument on Appellate Exhibit 254YYY, a defense motion to reconsider the Judge’s discovery order on Appellate Exhibit 245Y. (The discovery order is available at Appellate Exhibit 254XXX.) The Judge granted the motion to reconsider but, upon reconsideration, denied Mr. Mohammad’s request for expertwitness testimony.
• The Judge heard oral argument on Appellate Exhibit 254RRRR, a defense motion to compel discovery responsive to a 15 December 2015 defense request for discovery. The Judge denied the request.
• The Judge denied a motion that the parties had argued in December 2015—Appellate Exhibit 254SSS, a defense motion to compel the government to produce discovery related to equal-opportunity complaints. AE 254XXXX.
• The Judge heard oral argument on Appellate Exhibit 182H, a joint defense motion for an order compelling the prosecution to return laptop computers to the Accused or, in the alternative, to show cause why it should not be held in contempt. The Judge ordered that, by 8 March 2016, the laptops must be returned to the Accused with the same functionality as they had in 2010. AE 182K.
• The Judge heard oral argument on Appellate Exhibit 386, a defense motion to invalidate Touhy notice requirements. The Judge took the motion under advisement.
• The Judge heard oral argument on Appellate Exhibit 18Y, a government emergency motion for an interim order and clarification that the Commission’s order in Appellate Exhibit 18U does not create a means for non-privileged communications to circumvent the Joint Task Force mail system. The Judge ordered additional briefing.
• The Judge heard testimony from Mr. Binalshibh on the Appellate Exhibit 152 series of pleadings requesting relief from alleged sounds and vibrations in and surrounding his cell.
• After granting a defense request to recall two witnesses, the Judge took additional testimony from those two witnesses and heard additional argument in a closed session on Appellate Exhibit 254Y, a defense motion to stop all activities that bring female members of the Joint Task Force Guantanamo guard force into direct physical contact with the Accused. The Judge also heard argument on Appellate Exhibits 254Y, 254WW, and 254WW (KSM Sup) in open session on Friday, 26 February 2016.
Prior to hearing argument, the Judge had denied a defense request to recall the three remaining witnesses, one of which had testified in October 2015 and two of which had testified in December 2015. AE 254UUUU. The next pre-trial sessions in this case are scheduled to occur over a two-week period from 4 through 15 April 2016.
Work Completed to Date Reflects Methodical Implementation of Law
The prosecution has provided the defense information comprising the government’s case against the Accused, as well as material required to be disclosed to the defense under the government’s affirmative discovery obligations—all while safeguarding our nation’s counterterrorism secrets. To date, the prosecution has turned over to the defense more than 320,000 pages of unclassified material and, with defense counsel signing the Memorandum of Understanding Regarding the Receipt of Classified Information, thousands of pages of classified material.
Also, to date, the parties have briefed in writing some 209 substantive motions and have orally argued some 50 motions. Of the 209 substantive motions briefed, 12 have been mooted, dismissed, or withdrawn; 98 have been ruled on by the Commission; and an additional 39 have been submitted for and are pending decision. The Commission has received testimony from 30 witnesses in more than 85 hours of testimony, with all witnesses subject to cross examination, to assist it in deciding pre-trial motions. The parties have filed 234 exhibits and more than 100 declarations alleging facts and providing references to inform the Commission’s consideration of these issues. This information, while never meant to imply that justice can be reduced to numbers, nonetheless reflects methodical and deliberate movement toward trial.
* * * *
For their tireless support to these proceedings, I once again commend and thank the Soldiers, Sailors, Airmen, Marines, Coast Guardsmen, and government civilians of Joint Base Andrews, Joint Task Force Guantanamo, and Naval Station Guantanamo Bay.