Case Coverage: Military Commissions

5/28 Session #2: Protective Order Rules, and Ex Parte Contacts

By Wells Bennett
Wednesday, May 28, 2014, 12:30 PM

In AE13N, the defense seeks relief from the case’s protective order regarding national security information---in particular, permission for defense counsel in this commission case to draw on classified evidence of Al-Nashiri’s treatment and condition, in an affidavit which they wish to file in Al-Nashiri’s pending habeas challenge in a D.C. federal court.  As written, the protective order prevents this from taking place.

Learned Counsel Rick Kammen explains the gist of the habeas suit: the main idea is to enjoin the military commission from proceeding, for jurisdictional reasons.  But there’s another argument in play, too, one arising as a consequence of Aamer. The D.C. Circuit’s ruling blesses conditions of confinement claims for Guantanamo detainees---and that’s precisely what Kammen and company wish to pursue, in the affidavit.  To put that together, the lawyer wishes to move classified material regarding Al-Nashiri’s treatment from GTMO to the D.C. court’s secure facility---but, of course, not to release it publicly.  When asked, Kammen explains that his conditions challenge, though not strictly related to the threshold claims regarding commission jurisdiction, nevertheless bear on the government’s argument that the habeas court should abstain from hearing Al-Nashiri’s habeas suit.  The military judge wonders: if the habeas court finds this material relevant, then why can’t it order discovery?  Kammen answers, in essence, by emphasizing some basics: all we seek is to move secret material from one secret facility to another, and the prosecution hasn’t really put forth a reason not to.

The prosecutor Maj. Christopher Ruge says this argument is really about process.  The defense wants to make and end-run around the ordinary procedure, by having this court rule on relevance and necessity of classified discovery---but in different court, in a parallel case. He adds that the “need to know” in a given case is driven by discovery’s bearing on a litigation.  And that’s for the D.C. court, not this military commission, to decide. Ruge continues for a few more minutes on this theme, and sits.

Kammen protests: we’re not seeking to displace the habeas court’s authority. The converse, after all, would have Kammen and company asking the D.C. judge to order discovery from the commission.  No, the process, as Kammen understands it, is the other way around; he is supposed to seek assistance from the commission first.  That’s part and parcel of counsel’s duty to keep secret information safe.  The lawyer also says that the habeas court can always reject any evidence as irrelevant or inadmissible, down the line---but that the underlying information has to get before that court, first, for that to happen.  He's trying to do just that, by means of AE13N---which is submitted and now awaits decision.

We proceed to AE266.  In that motion, according to Al-Nashiri lawyer Rick Kammen, the defense seeks to uncover information about ex parte approaches to the court, by the CIA or like agencies.  The lawyer supplies context: the CIA did, after all, seek to influence the Senate’s RDI report; we know this from the many media accounts.  Kammen likewise notes some past government efforts to control secrecy in the military commissions: fake smoke detectors hiding listening devices in attorney meeting rooms; the hitting of “censor buttons" in the Guantanamo courtroom, and the like.  The lawyer is thus concerned that the CIA may have reached out to Judge Pohl, directly and quite improperly, in seeking to undermine the proceedings.

The government doesn’t really oppose the motion, having noted, in its pleadings, the impropriety of some kinds of ex parte contacts.  Parenthetically, prosecutor Lt. Bryan Davis stresses his belief that no such communications have taken place---with the court, or with any victim witnesses.  The lawyer here distinguishes between improper ex parte communications (which must be disclosed), and proper, legally authorized ones (which are not subject to discovery, for reasons of irrelevance).  An inquiry into the latter would show only that the commission staff obey statutes and rules; and the defense surely knows that, given its legitimate, and frequent, ex parte communications with the court on discovery requests.  Would those be discoverable by prosecutors?  No way.  Thus Davis sums up: the defense here wants the court to ignore the ordinary procedures for discovery, by mining for proper communications by the trial judiciary.

Kammen in reply: there isn’t great disagreement here, about the line dividing okay contacts from not okay ones.  But he’s still worried---justifiably on the evidence, in his opinion---about the chance of some not okay ones here.  If none of the intelligence agencies have contacted the court, then great, Kammen says.  But if they have, then Kammen wants to make his record, and will need to uncover more about what transpired between the court and intelligence officials.

It looks like nothing, in fact, transpired.  Judge Pohl says he will rule on AE266 later, in writing. In the meantime, he says from the bench, the court has not been party to any improper ex parte contacts with intelligence personnel, and he isn’t aware of any, so far as his staff is concerned.  As to victim witnesses, the military judge has never had a substantive conversation with any of them while in transit to and from GTMO, bar the rare and de minimis “hello” or “excuse me.”  We'll expect this to be reflected in a forthcoming order.

Recess time.