Case Coverage: Military Commissions

8/5 Motions Hearing #2: Things Classified

By Lauren Bateman
Wednesday, August 6, 2014, 9:15 AM
When the Court reconvenes, Major Tom Hurley begins argument on AE 280. In it, the defense requests that summaries of classified discovery be marked with more granular classification information.  Specifically, the defense objects to the government's practice of marking whole documents as classified; instead, the defense wants the government to go through the process of reviewing the documents paragraph-by-paragraph to determine what must be withheld from the defense and from the public. In support of this motion, Major Hurley cites two documents: DoD Manual 5200.01 -- the essence of which, he submits, is a requirement that the government be specific in indicating what is and is not classified material  -- and Executive Order 13526.  Although the defense foremost wants Judge Spath to impose additional specificity requirements on the government, Major Hurley also suggests an alternative remedy: that the government share the classification guides with the security officer appointed to the defense.
Prosecutor Mikeal Clayton rejoins, first by asking that Judge Spath look to the plain language of 5200.01 Section 8(c)(1), which requires the government to mark whether materials are classified or not "in accordance with the underlying materials."  To the extent that the defense's suggested solutions would have the government "go back and remark these documents with additional markings . . . would be to ask the government to do something, frankly, inconsistent with the plain language of the statute, to mark the summary document in a way different from the underlying source material."  Nor can the defense find a toehold in the Executive Order, Clayton argues: it specifically doesn't create any new substantive rights for any party in suits against the United States.  He then turns to practical considerations. If the classification levels differed between the underlying information and the summary, "there would be a never-ending string of litigation over those facts, debating whether or how a particular classified fact impacts national security."  Instead of considering those issues in a military tribunal, interested parties should challenge the propriety of classifying the underlying information in federal courts capable of hearing disputes under the Classified Information Procedures Act.
With the government's challenge in mind, Judge Spath mulls aloud. "I am just trying to figure out where the authority comes from to have them to basically act -- sort through a document that has been marked as top secret or secret, and sort through and find parts that are unclassified and mark it."  In reply, Major Hurley notes that because the government is in the unique position of looking at the classification manual when putting together the summaries, they have a duty to ensure the classification authorities are accurate. Judge Spath agrees with that assessment: "I hope the government is making that effort. I assume they are." But when it comes to the precise type of relief the defense requests, Judge Spath seems to balk: "[t]he trial counsel aren't the classification authorities. They can't do that assessment."  The argument comes to an end.
Moving right along to AE281---a tiff over how to handle secret items shown to Al-Nashiri. The procedural setup here has a trifle unusual: earlier, it had been determined that the accused could be allowed to see certain classified items, on a "display only" basis. (Usually, no terrorism defendant is given access to classified material of any kind.) But the boundaries of that permission are unclear, and make for considerable anxieties on the defense's part; attorneys can get in trouble, big time, for sharing secrets in violation of the law.  When the government issued a "notice" regarding the display protocol, the defense swiftly filed an anxious counterstatement, asking (among other things) for better guidance, and advance immunity from leak prosecution.
His nerves up, Learned Counsel Kammen begins with broadside against the secrecy mechanics at Guantanamo. His words convey profound frustration: "Virtually every day, virtually every hour that we are in this courtroom we, on the defense side at least, have visual and oral reminders that we are not at all trusted. It  doesn't make any difference whether it is when we meet with our client and what we are allowed to bring, we are not trusted. . . . The other piece of this, we have got to be honest, the trust -- the lack of trust runs both ways. One of our members of the defense team had her access to the client revoked on patently frivolous, false reasons, and the commission has ruled that can't be challenged. So we serve at the sufferance of who ever, big G, some bureaucrat, somebody wants to decide. You messed up, and all manner of havoc, starting with you no longer can see your client, you no longer can be a lawyer in this case, flow from that."
He calls the proceedings "psychedelic." The defense has no sense of where the line between proper and improper handling of classified information exists because the government has not articulated where that line is, but the costs of crossing that line are nevertheless profound.  The informational security rules at Guantanamo are so nebulous and malleable that defense attorneys are at perpetual risk of being accused of mishandling classified information.  And worse yet, the same goes for Al-Nashiri.  What if, after a day of questioning, Al-Nashiri returns to his cell and says to a fellow detainee "you can't believe the load of nonsense they [the prosecution] are saying?"  Such a comment may be made completely innocently, but if Al-Nashiri were to unknowingly reveal classified information in that discussion, would that give the government justification to continue detaining him, even if he were acquitted?
Kammen asks, primarily, for stability: "The starting point of this is give us the written assurances from the relevant public official that this is appropriate. Give us the handling procedures in writing. Let's make sure that JTF knows about it. Let's make sure that the Privilege Review Team is in the right place. Let's make sure that all of this happens properly, and then answer the final question: How can we discuss this in a nonsecure facility? Answer all those questions, we are happy to proceed, but we can't proceed in this environment until those questions are answered."
Here's Clayton with the government's response.  He says essentially, that Kammen has nothing to worry about. The government has said twice that the defense can use the classified summaries, and has given the defense specific rules for handling the documents:  "Mr. al Nashiri is allowed to read these documents, presumably once translated into Arabic, he is allowed to review those documents, they are allowed to discuss those documents freely with Mr. al Nashiri. He is, however, not allowed to keep a copy of those documents. And that's all spelled out pretty explicitly in the notice." What more relief could the defense want?
Kammen returns to the lectern. He wonders: why should he trust what the government is saying when they have already removed a defense attorney on a pretext?  The defense again requests that somebody from the OCA acknowledge, in writing, the extent of the defense's abilities to use the materials, and that the OCA be directed to establish handling procedures for the materials.  Kammen argues that the defense can't just presume that their good-faith efforts to handle the information properly will be acceptable to the government: "I mean, we want to take yes for an answer. We just want to make sure that as we do so, we are really genuinely complying with what they [the restrictions on handling the information] say."
Now a vignette about the SSCI report: what, Kammen intones, does the prosecution mean when they say they are working to provide the report to the defense?  Are they referring to the declassified version that "could be reviewed by, you know, anybody in Omaha?"  Or are they referring to the full report?
Clayton responds that, first, "Office of Chief Prosecutor has requested the full SSCI report through the proper executive channels," and that the request is currently processing. Clayton then wonders -- what is it the defense is worried about when they talk about the risk to al-Nashiri?  He (obviously) doesn't have a security clearance, and he hasn't signed a non-disclosure agreement, so what could the government possibly punish him for with regard to mishandling of classified information?  Judge Spath: "I concede that likely there is not a lot there."  But Judge Spath acknowledges that the practical concerns of the defense are legitimate: couldn't the prosecution at least ask the OCA if it's possible to create a document with written protocols as to how the information could be handled? Though Mr. Clayton notes that he cannot compel the OCA to produce anything, the prosecution could, at least, ask the question.
The session concludes with a housekeeping item.  Judge Spath approves the government's motion for leave to file a supplement to 048K, which relates to the ability to get the D.C. Circuit's en banc opinion in Bahlul before the Court.  The defense does not oppose that motion, though Kammen asks that Judge Spath rehear the argument before making a ruling on the substance of the matter.