Military Commissions

Last Week at the Military Commissions: 9/11 Commission Debates Who Gets to Determine When Hostilities Began

By Sarah Grant, Rachael Hanna
Tuesday, May 7, 2019, 3:35 PM

The military commission in United States v. Khalid Shaikh Mohammad, et al. (i.e., the 9/11 military commission) reconvened from April 29 to May 2. The parties discussed conflict of interest concerns, the disclosure of classified documents, and how to approach the determination of whether or not there is an armed conflict, among other issues. Before recessing until the next session in mid-June, presiding military judge, Col. Keith Parrella, informed the parties that he will be replaced in July 2019.

April 29

After conducting the rights colloquy with the defendants, military judge Col. Keith Parrella recapped a Rule for Military Commissions (RMC) 802 conference held on April 27, during which the parties went over the docket order for the session.

Following the recap, Parrella asked if the defense had any objections. David Nevin, counsel to Khalid Shaikh Mohammad, asked to incorporate his prior objection from the litigation of Appellate Exhibit (AE) 615 during the last session. Parrella asked Nevin if it was his position that he could not continue to represent Mohammad because the commission had not ordered him to continue to do so. Nevin clarified that it was a factor in the defense’s decision, but not the only one. Parrella then ordered Nevin to resume representation because he had found no conflict of interest stemming from the government’s intrusion into the defense counsel’s activity and to relieve Nevin of any concern about violating rules of professional conduct in representing Mohammad. Parrella noted that he would consider any unwillingness by Nevin to represent Mohammad as a waiver of his right to participate in whatever particular issue was before the commission. Nevin responded that the defense’s intention was to continue to refrain from participation, but that this was not intended as a waiver of Mohammad’s right to be heard on a specific issue or his right to counsel generally.

Cheryl Bormann, defense counsel for Walid bin Attash, noted that they were waiting on a ruling on the defense’s filing in AE 615BB, requesting that Parrella decide whether bin Attash’s defense attorneys would be witnesses in the matter of the alleged conflict of interest.

Next, James Connell, defense counsel for Ammar al-Baluchi, clarified the defense’s position at the RMC 802 conference regarding AE 524NNN, the government’s proposed modifications to Protective Order #4, governing the defense teams’ ability to contact or investigate potential classified CIA witnesses involved in the CIA’s Rendition, Detention, and Interrogation (RDI) program. Connell generally objected to arguing issues prior to briefing but had been prepared to do so in this instance and agreed with the commission that it made sense to implement the proposed amendments to Protective Order #4, given that the defense’s witness requests must be filed by May 10. Connell also noted that the defense would likely waive the opportunity to file a brief in response to AE 524NNN but would file a brief on the effects of the new tool provided through the amendments and on the recent disclosures from the government about the identities of medical witnesses.

Nevin then asked for a recess to consider the military judge’s order that the defense proceed with its representation of Mohammad since the defense was not given prior notice that such an order would be issued. Parrella stated that he wanted to hear from the government first and that he would grant a recess before the commission took up the AE 286 series to afford the defense time to decide whether they wanted to participate.

For the government, chief prosecutor Brig. Gen. Mark Martins began by addressing the government’s position on the procedural posture of AE 286, a defense request for the production and preservation of the full unredacted Senate Select Committee on Intelligence (SSCI) report on the CIA’s RDI program, the production of unredacted documents on which the report was based, the production of the unredacted “Panetta Review” (the CIA’s internal review of the RDI program), and the production of the unredacted CIA rebuttal to the SSCI report. The government requested that the commission no longer defer ruling on these requests and deny them at this time.

Parrella clarified that Martins had just addressed AE 286, but that AE 286AA concerns the unredacted copy of the executive summary of the SSCI report and the unredacted documents underlying the executive summary. Martins agreed and noted that those were part of the full report.

Martins continued, arguing that granting the defense’s requests would require the disclosure of sensitive classified information to people unrelated to this case and would thereby risk compromising intelligence sources and methods. Granting such relief would go against established classified information procedures that the commission has relied on to produce relevant information in this case. Regarding preservation of the full SSCI report, Martins noted that the report is a congressional record, and while it had not been integrated into any executive branch records system, the Department of Defense has a copy of the full report and is complying with the commission’s order that it maintain the copy pending resolution of the defense’s requests for information relating to RDI.

Martins then addressed the five questions posed by the commission. First, Martins said that the government has completed its review of the approximately six million documents allegedly underlying the SSCI report, subject to additional targeted reviews that may be necessary due to ongoing discovery obligations. Second, the government has not turned over all documents it intends to provide related to the SSCI report but has provided the majority. The requirement for continuing production should not delay the commission in ruling on this motion or litigating the defense’s motions to suppress evidence of guilt. Third, the government does not believe any portion of the SSCI report, the Panetta Review, or the CIA rebuttal, beyond what the defense has already been provided, to be discoverable. Fourth, the government believes the defense’s requests for production pursuant to AE 286 are no longer ripe, given the discovery already provided. Finally, Martins said that it is a question for the defense whether the original rationale underlying the defense requests has changed in light of the additional discovery provided by the government.

Martins also addressed the broader discovery context related to proving that the five defendants planned and executed the September 11, 2001, attacks. Bormann objected to the relevance of discussing the overall discovery process at this time, but Parrella overruled her objection. Martins noted that the commission stated in 2018 that the government “deserved a trial date,” and that in light of the voluminous discovery produced to date, Judge Parrella should deny AE 286 and allow the parties to move on toward trial.

Parrella asked if the government could return the full SSCI report to Congress without impeding its continuing discovery obligations. In response, Martins confirmed that it could be returned, because the government would likely be able to obtain future access to the report if needed.

Parrella then recessed the commission for 15 minutes, over Nevin’s request for an hour-long break, to allow Mohammad’s counsel to discuss the conflict of interest issue over alleged government intrusion in defense counsel’s communications with defendants, for which Nevin had sought to remove himself as defense counsel. When the commission returned, Nevin stated that the defense had not had sufficient time to decide what to do, so Parrella proposed that the commission hear from other counsel on AE 286 and then allow Nevin to take the lunch recess to decide whether to continue to participate. Nevin continued to argue that that would not afford the defense adequate time to make a decision, but Parrella noted that the commission’s position was that it had been clear there was no conflict and had previously implicitly ordered Nevin to continue representation. Parrella commented that he had only realized that Nevin was operating under the assumption that he had not been ordered to continue representation when Parrella read Nevin’s appellate filing, which is why he made the explicit order at the beginning of this session.

Nevin responded that since the military judge does not have the power to hold him in contempt for refusing to participate in representation, Nevin does not have the normal right to appeal such a decision. Nevin also asserted the need to request an independent counsel to explain the situation to Mohammad. He said that the commission’s desire to proceed is in tension with the defense’s right to be prepared to go forward. Parrella responded that he was giving Mohammad’s defense team sufficient time to consider the matter by allowing them to postpone their arguments on any of the docketed motions during the last open session of the week.

Next, Walter Ruiz, counsel for Mustafa Ahmed al-Hawsawi, informed Parrella that the camp staff judge advocates had refused to return al-Hawsawi’s laptop to him despite Parrella’s order that they do so. They did not respond to requests from either the defense or the prosecution team. Clayton Trivett, counsel for the government, noted that al-Hawsawi’s laptop still had to undergo an IT security review separate from the forensic examination previously conducted and which Parrella’s order followed. The parties debated the necessity of additional inspections and what Parrella could do to enforce compliance with his order that the laptop be returned to al-Hawsawi promptly.

Returning to discussion of AE 286, regarding the SSCI report and related documents, Connell conceded that the government “has made enormous strides toward providing the information” requested by the defense but that there is remaining information that al-Baluchi’s team needs. Connell maintained that its discovery requests pursuant to AE 286 are still ripe notwithstanding additional discovery provided by the government and said that the most important missing information are the dates of the majority of the underlying documents provided thus far. The military commission had approved withholding that information, with the exception being the latest productions of RDI documents, which did include specific dates. Connell argued that this supports his belief that the RDI document dates recently became declassified, but the government did not want to reproduce its discovery to provide those dates to the defense. He had not, however, confirmed with the government that the dates were declassified. Connell highlighted that the publicly available portion of the SSCI report contained more specific dates pertaining to al-Baluchi’s experience in the RDI program than all of the RDI discovery produced by the government and asserted that a full chronology of al-Baluchi’s time in the RDI program may exist.

Then, Connell confirmed his understanding that discovery on the issue of the defendants’ capture, rendition, detention and interrogation is complete. However, the government excluded from its previous production information about how al-Baluchi came into U.S. custody. Parrella clarified that while information regarding the detention and interrogation of defendants prior to their rendition may not fall under the construct of AE 308, the government still had an obligation to review that material as discoverable. Connell added that the government’s refusal to provide discovery related to how the defendants were captured and came into U.S. custody supports the defense’s argument that the government committed outrageous conduct by disregarding “its own rules in rendering and abusing” al-Baluchi.

Parrella asked Connell to specify the elements of outrageous government conduct, and Connell said that the standard is if the way in which information or a defendant is acquired “shocks the conscience” of the court. The defense conceded that no court has ever actually found “outrageous conduct” but asserted that that is because of the usual professionalism of U.S. law enforcement, both military and civilian. Al-Baluchi’s case is, however, unique and the CIA may have engaged in outrageous conduct in rendering al-Baluchi and deciding to use so-called “enhanced interrogation techniques” against him.

Connell further argued that the defense’s access to RDI-related dates could have important implications for future sentencing proceedings. He referenced Hamdan v. Rumsfeld, in which apparent witness testimony about the importance to the United States of information that Hamdan provided during interrogation contributed significantly to the commission’s decision to hand down a more lenient sentence in that case.

Regarding the importance of the underlying documents to the SSCI report, Connell noted that, pursuant to AE 112, the commission ordered the government to produce original documents with redactions instead of substitute summaries “because of the power and provenance of the original documents.” The defense argued that the same rationale applies to the underlying documents of the SSCI report, the CIA official response, and the Panetta Review. The defense stated its intention to argue against a death sentence for al-Baluchi, if he is convicted, on the ground that doing so would help ensure the RDI program or something like it will never be repeated again. Finally, Connell noted that the importance of the Panetta Review, which remains publicly unavailable, is its opinion that the CIA engaged in wrongdoing in its RDI program.

James Harrington, defense counsel for Ramzi Binalshibh, argued that given the specific pages of information on Binalshibh in the public executive summary of the SSCI report, the full report must have substantially more graphic information that would help the defense better tell its story at trial. The jury has a right to hear the full account of Binalshibh’s story in order to reach a proper judgment, and the decision whether to make that information available to the defense and ultimately to a jury should not lie with the government. Harrington concluded by stating that the defense would submit a filing to the commission on this issue.

Parrella clarified that his earlier invitation to submit additional documentation pertained to AE 524NNN, not the AE 286 series.

When the commission returned from the lunch recess, Nevin relayed that he had consulted with ethics counsel and stated that the defense would do its best to comply with the commission’s order to continue to represent Mohammad. He noted, however, that Mohammad has the right to be advised by a conflict-free attorney as to whether or not conflicted defense counsel should continue to represent him, and that no such counsel is currently available to Mohammad nor anyone in the Military Commissions Defense Organization (MCDO). Nevin said that the defense is preparing a mandamus petition on the issue.

Parrella rebuked Nevin, stating that the recusal motion had been denied and reiterating that the commission finds there to be no conflict of interest. He said that he would grant Nevin additional time to prepare his arguments on the motions currently under discussion but expected arguments to be made during the current session.

Next, Brig. Gen. Martins responded to the defense’s claim of outrageous government conduct and explained why, in the government’s view, the Panetta Review is neither relevant nor discoverable. Martins also noted that the government provided each defendant with a detailed chronological index of documents over a year ago. He acknowledged that this index does not contain all of the date information redacted in the produced discovery documents but argued that it gave the defense the ability to create its own chronology. Martins stated that the government was able to provide the defense with more date information beginning in the spring of 2018 and did so in tables previously produced. The government had therefore fully fulfilled its discovery obligations in accordance with current classification requirements, and it was appropriate for the commission to deny the defense’s requests for further documents relating to the SSCI report. In response to Parrella’s questioning about whether the Department of Defense should retain a copy of the SSCI report for appellate review or incorporate it into the judicial record, Martins said that the prosecution team was prepared to maintain a copy of the SSCI report but should not exert ownership over what is a legislative, rather than executive branch, document.

Connell also sought to clarify that he had mentioned the date sequencing index in his earlier argument and maintained that it was still problematic for the defense’s efforts to create a coherent chronology. Based on Martins’s argument, Connell understood the government to have confirmed his hypothesis that sometime in early 2018 the classification guidance for RDI program dates changed. Connell stated his belief that Parrella has a document, submitted to the commission by the government, that describes the change in classification guidance that allowed the government to produce RDI-related date information to the defense. The document would be in the record in an ex parte pleading, and Parrella should be able to make his own evaluation of the change in classification guidance. Connell further asserted that the commission has the authority to decide how the government must produce discovery, while adhering to the classification guidance. Since the classification guidance has changed, the government has not resubmitted information to the commission for its review under the new guidance. Parrella responded that the government stated that it did review previously produced information under the new classification guidelines and created the second RDI index as a result.

The commission then returned to the lingering AE 530 issue regarding the return of al-Hawsawi’s laptop. For the government, attorney Edward Ryan explained that the convening authority IT staff has to verify the forensic certification before the laptop can be returned. The military judge’s view that the examination conducted was sufficient and his order that the laptop be returned were not sufficient. Parrella asked how much of a delay the remaining approval steps would cause, and Ryan estimated three days.

For the defense, Ruiz responded that the predicted 72-hour delay could turn into a longer period and that al-Hawsawi’s ability to effectively participate in his own defense was impeded by his inability to access the case files on a laptop. Ruiz alleged that additional screening of the laptop was not necessary and that the camp security forces were obstructing the implementation of the commission’s order that the laptop be returned.

Moving to AE 524NNN, the government’s proposed modifications to Protective Order #4, Nevin, Bormann and Harrington all stated that they would make their arguments in a brief to be filed with the commission by May 10. Connell said that since Protective Order #4 went into effect in January 2018, it had blocked much of the defense’s investigation of the RDI program. The proposed changes to the protective order, if implemented, would do little to improve the defense teams’ position, given that the defense’s request for witnesses related to their suppression motion is due on May 10. Even if the defense were to write letters to RDI-affiliated individuals requesting immediate interviews, it would not be possible to make that deadline.

Additionally, under Protective Order #4, when the defense requests a witness interview by letter, it has to disclose to the government with whom it is seeking to speak. There are also issues with classification related to reaching out to witnesses who have been assigned a unique functional identifier (UFI) to protect their identity. The defense argued that the commission should use its authority to allow for witness depositions, because that would resolve the issue of the defense’s ability to provide a “rich and vivid” account of what happened to the defendants while they were in the RDI program, as well as the defense’s suppression motion and other issues.

Martins contested Connell’s claim that the government might not deliver interview request letters to potential witnesses, stating that the letters would have to go through a security review process but would ultimately be delivered to both UFI and non-UFI persons.

Connell responded that the government knowing which UFI witnesses the defense wants to interview is not an issue, because the government already knows who those persons are and has already interviewed them. However, with regard to non-UFI witnesses, having to disclose to the government whom the defense teams want to speak with interferes with the defense’s investigation by affording the government the opportunity to interview those persons first. Connell proposed a solution to the problem, suggesting that when the defense writes an interview request letter, it could submit the letter for security review by a neutral party on the Defense Department Security Classification/Declassification Review Team. Under such a procedure, the defense would file a copy of any letter ex parte with the commission, which would allow the commission to ensure that the defense was complying with the appropriate procedures without informing the prosecution of whom the defense intended to interview.

Nevin spoke next and clarified that he believed the aim of the commission’s order requesting the filing of the defense’s motions to suppress and requests for witnesses was to test how a motion to suppress would be decided under the limitations imposed by Protective Order #4. However, such a “trial run” would not resolve the question as to whether AE 524 places an unconstitutional limitation on the defense’s ability to investigate because it would not cure the defense’s problem of not knowing what relevant information it does not have. Nevin argued that the commission must grant the motion to suppress because there is no way to know what information a normal investigatory process would have produced; the commission would only know what the restricted process under Protective Order #4 produces.

Next, the commission turned to AE 617 and 620, addressing four questions Judge Parrella posed to the parties:

  1. Whether proof of the existence of hostilities (as opposed to a nexus to hostilities) is a component of the common substantive element established by 10 U.S.C. § 950p(c) and, if so, whether this commission is bound to use the same member instruction used in United States v. Hamdan and United States v. Bahlul.
  2. Whether the military judge may determine the existence and duration of hostilities for purposes of 10 U.S.C. § 950p(c) as an instructional matter, while reserving the question of nexus to hostilities to the panel.
  3. Whether existence of hostilities for purposes of 10 U.S.C § 950p(c) in this case is to any extent a nonjusticiable political question.
  4. Whether existence of hostilities for purposes of 10 U.S.C § 950p(c) in this case is to any extent subject to judicial notice as a matter of legislative fact.

Clayton Trivett provided arguments first for the government. He explained that Parrella’s questions implicated three different provisions of the 2009 Military Commissions Act: 10 U.S.C. § 950p(c), which states that military commissions can only try offenses committed “in the context of and associated with hostilities”; 10 U.S.C. § 948a, subsection 7, which defines the term “unprivileged enemy belligerent” as including members of al-Qaeda; and 10 U.S.C. § 948d, which provides that the military commissions have subject matter jurisdiction over law of war offenses “committed before, on, or after September 11, 2001.” Trivett said that these provisions together show that the political branches already came to the legal conclusion that hostilities between the United States and al-Qaeda existed prior to September 11, 2001. He accordingly asked the commission to take judicial notice of the fact that the political branches already made a determination and that that determination is owed great deference. Alternatively, the court could determine that the commencement of hostilities is a nonjusticiable political question that the commission cannot decide.

The commission, Trivett said, is not bound by the decision in the Hamdan and Bahlul military commissions to put the question of when hostilities began to the military jury as a question of fact, and to allow the jury to consider the totality of the circumstances, rather than specific factors, in making its determination. He said that the particular charges in those cases—material support for terrorism—distinguish them from the case against the 9/11 defendants, as the latter group are charged with an ongoing conspiracy to commit war crimes that began before 9/11 and continued after it. For material support charges to be tried in a military commission, it was necessary that the nexus to hostilities be proven. But for conspiracy charges directly related to the 9/11 attacks, Congress has made clear that it views such conduct as within the military commissions’ jurisdiction.

Trivett then discussed what elements should go in the instructions given to the jury at the close of the trial (when, at least a few more years from now, the parties actually get to trial). Trivett and Parrella went back and forth about the differences between the jury instructions in Hamdan and Bahlul and those given in the trial of Serbian war criminal Dusko Tadić in the International Criminal Tribunal for the Former Yugoslavia and how those instructions might be adapted to apply to the 9/11 defendants. Trivett noted that the Court of Military Commission Review (CMCR) decided that the military judges in both Hamdan and Bahlul were correct to instruct the jury members that they had to find both the existence of and the defendant’s nexus to hostilities in order to convict. The government believed that the CMCR’s position was binding on Judge Parrella but that he still had the ability to tailor the instructions as long as the underlying principles were respected. Additionally, the judge could limit discovery and argument based on relevance to the actual elements of the charges that the government has to prove.

Army Capt. John Balouziyeh responded for Binalshibh. He argued that the 9/11 commission is not bound by the jury instructions given in Hamdan and Bahlul; that the existence of hostilities is not a nonjusticiable political question; that the existence and duration of hostilities are questions for the jury to decide, not the judge; and that the existence of hostilities is not subject to judicial notice as a matter of settled, legislative fact. Balouziyeh said the commission should adopt the Tadić jury instruction as-is. It listed the determinative factors for whether hostilities exist, rather than modifying it with the vague catchall provision the Hamdan and Bahlul commissions included—allowing the jurors to consider “any other facts and circumstances you consider relevant to the existence of armed conflict.” He disagreed with the government’s characterization of the existence of hostilities between the United States and al-Qaeda prior to 9/11 as a fact settled by Congress and the executive branch, such that the commission should either decline to leave the question to the military jury or at least instruct the jury of the view of the political branches. The 2009 Military Commissions Act (MCA) in the defense’s view does not state explicitly that a state of hostilities existed prior to 9/11. And in any event, the existence of hostilities must be determined consistent with international law, not just domestic law. The standard for determining the existence of hostilities from Hamdan and Bahlul is insufficiently objective and precise and, therefore, should be disregarded.

April 30

The commission reconvened in open session on Tuesday morning. First, Judge Parrella discussed an update to his order in AE 530RRR that al-Hawsawi’s laptop be returned to him. He said that additional IT personnel from the convening authority’s office needed to examine the laptop before it could be returned, so he was delaying the deadline for compliance with the order by three days. Next, James Harrington, counsel for Binalshibh, informed the commission that Binalshibh was having difficulty sleeping due to an underlying medical issue and that his prescribed medications were not helping. The defense therefore requested the opportunity to speak with the camp psychiatrist and senior medical officer in order to discuss treatment options, so that Binalshibh could obtain relief and be able to be more engaged in the conduct of his defense.

The parties then returned to argument on AE 617/620. James Connell, defense counsel for al-Baluchi, discussed the elements necessary to establish the commission’s jurisdiction over particular defendants for particular crimes. He explained that the MCA ties the commission’s jurisdiction to the laws of war and that jurisdiction does not exist without the existence of hostilities at the time the charged conduct occurred and a nexus between the defendant’s conduct and those hostilities. In his view, the start of hostilities is to be determined objectively by the facts and circumstances and is not a nonjusticiable political question. The D.C. Circuit and the CMCR—the military commission’s superior courts—have treated the existence of hostilities as a mixed question of fact and law that juries have a role in resolving. It is not a question that the judge should determine as a matter of law, but rather a question for the jury—“Existence of hostilities or intensity of hostilities is a fact necessary to conviction that must be proven beyond a reasonable doubt.” Connell also noted that the government took positions opposite to its current ones in past military commission cases. The government believed it necessary to prove at trial the existence of and nexus to hostilities in Hamdan and Bahlul, and their ability to do so, Connell said, was critical to the CMCR’s affirmance of those convictions.

Judge Parrella asked how to avoid the result of “five separate findings as to the beginning of the existence [of hostilities] for what is essentially one conspiracy” if the question goes to the military jury. Connell disputed whether the conspiracy for which the defendants are charged is necessarily a single conspiracy rather than multiple conspiracies. He said that that is also a question for the jury and that it would not be an absurd result for the jury to conclude, for example, that bin Attash “was included in the USS COLE conspiracy, but was not included in a 9/11 conspiracy.” Additionally, the period of each individual defendant’s engagement in hostilities could be different. The judge ruling as a matter of law that hostilities began at a defined point in time was also not necessary because particularly strained arguments about the beginning of hostilities could be weeded out by a judicial determination of relevance. Allowing reasonable argument about when hostilities began with respect to each defendant would allow appropriately individualized consideration.

Disagreeing with Binalshibh’s counsel, Connell said that the Hamdan jury instruction, with the catchall provision, is the binding standard. The CMCR, he said, approved of the Hamdan commission transforming Tadić’s two-prong test into a totality-of-the-circumstances test.

Connell also argued against the government’s request for Judge Parrella to take judicial notice of the beginning of hostilities as a settled, legislative fact, as opposed to as a contested, adjudicative fact. Like Binalshibh’s counsel, Connell contended that the question of when hostilities started between the United States and al-Qaeda remains an open question for the commission jury’s consideration. He pointed out that the commission in Al Nashiri treated the question of the existence of hostilities differently for personal jurisdiction purposes and for conviction purposes: The court deferred to the political branches’ view to establish personal jurisdiction, but then treated it as an open question for the jury whether the government met their burden of proof at trial.

Furthermore, Connell said, the government’s argument for treating the existence of hostilities as a nonjusticiable political question is foreclosed by Hamdan I, in which a majority of the Supreme Court “held that the explicit presidential finding on the nature of the conflict with al Qaeda was not controlling on the court.” A four-justice plurality went further, he said, and determined that the “conflict between the United States and al Qaeda began after the [September 14, 2001] AUMF [Authorization for Use of Military Force] that the government was relying on to activate the war powers of Congress.” If the Supreme Court did not consider the beginning of hostilities a nonjusticiable political question, then there was no reason for the military commission to do so. In making the existence of hostilities an element of the offenses triable by military commission, Congress gave the task of answering that question in each case to the commission. The court, therefore, should not relieve the prosecution of the burden of proving the existence of hostilities by either taking judicial notice of a political branch determination or withholding the question from the jury on political question grounds.

Cheryl Bormann, counsel for bin Attash, adopted Connell’s arguments.

Maj. Joseph Wilkinson argued on behalf of al-Hawsawi that constitutional requirements and the law of war are supreme over the statutory provisions in the MCA and that, in accordance with those sources of law, the government must prove that the defendants’ charged conduct occurred during active hostilities. The jurisdiction of the military commission is determined by the law of war as it existed on September 11, 2001, and Congress cannot retroactively confer additional jurisdiction beyond what international law allows. That is, if hostilities did not exist as a matter of international law before 9/11, a congressional declaration that hostilities did exist before 9/11 is legally invalid.

He agreed with the other defense attorneys that the existence of hostilities is a question of fact for decision by the jury and concurred with Binalshibh’s counsel that Judge Parrella is not bound to required to adopt the Hamdan totality-of-the-circumstances instruction. Wilkinson advocated for a checklist-style instruction like the one in Tadić, without a catchall provision, tailored to reflect the elements the government must prove in the current case. He asked that Judge Parrella frame the instructions as orders, telling the jury that they “cannot convict under these crimes unless the government proves the 9/11 attacks were not terrorism” but rather clear war crimes.

Wilkinson also argued that the commission erred in deferring to Congress’s determination of the existence of hostilities for personal jurisdiction purposes, saying that the Constitution confers upon the commission a duty to independently find the existence of hostilities so as to confirm its jurisdiction. Additionally, abstaining from answering a critical question on political question grounds would be inappropriate in a high-stakes capital case such as this. The commission should be more protective, not less, of the defendants’ constitutionally protected liberty interests.

May 2

The final open session for the week was on Thursday morning. James Harrington informed Judge Parrella that Binalshibh’s team was able to meet with the camp psychiatrist and senior medical officer as requested in order to discuss Binalshibh’s medical condition and treatment. He flagged that the defense would follow up with written motions.

First on the docket was argument on AE 523N, al-Baluchi’s motion to reconsider Judge Parrella’s ruling in AE 523J granting in part a motion to compel production of identities of medical witnesses referred to by pseudonym in discovery materials. Defense counsel James Connell said that the motion raises four discrete issues, some old and some new. The first issue is that the military commission is, in Connell’s view, erroneously treating the names of medical witnesses as classified when they are combined with the names of the detainees that they treat. This information should instead be “sensitive but unclassified.” Connell pointed out that the redacted medical records the defense previously received and one unclassified government pleading, AE 152P, include the true names of a number of medical providers, and the government claimed the authority to use pseudonyms on government information privileges grounds not classification grounds. Additionally, the defense had been able to interview some medical witnesses in unsecure spaces (locations where classified information may not be discussed).

Second, Connell argued that the government improperly filed its response to AE 523J ex parte, when that procedure is reserved in statute for specified, nonapplicable circumstances. If the government intended to redact details from the discovery material the commission ordered it to produce, it should have filed a motion in advance with the commission announcing its intent and allowing the parties to conduct an in camera hearing about it. But it did not do so and instead acted without authority to file ex parte.

Third, Connell addressed the defense’s request to obtain the identities of witnesses who have information the defense deems relevant to al-Baluchi’s January 2007 interrogation, portions of which the government intends to introduce as evidence. The parties previously litigated production of CIA and medical witnesses, but Judge Parrella had not yet ruled on four categories: witnesses with knowledge of standard operating procedures in Camp VII (where high-value detainees are housed) in late 2006 and early 2007; a witness or witnesses who prepared a specific document of interest to the defense; a third category that the defense would discuss in closed session; and witnesses from the Bureau of Prisons who toured a CIA black site and assessed compliance with ordinary incarceration procedures.

Fourth, the defense seeks full, unredacted original medical records for the duration of their client’s detention at Guantanamo. The medical records are, in the defense’s view, the property of the defendants and should not be held by the government but not the defense teams. The full medical records are necessary for the attorneys to properly prepare a defense and to identify relevant witnesses. The use of confusing pseudonyms for medical providers in the redacted versions of the medical records makes it difficult to determine with whom the defendants interacted and when. The medical records are directly pertinent to al-Baluchi’s motion to suppress the fruits of his 2007 interrogation because, the defense contends, he suffered a traumatic brain injury while in CIA custody prior to 2007 and had a number of other medical conditions that likely affected his behavior and responses under interrogation.

Lt. Col. Jennifer Williams, counsel for al-Hawsawi, echoed Connell’s arguments.

Prosecutor Clayton Trivett then answered a number of questions from Judge Parrella about what Connell discussed. Trivett said that the pairing of medical providers’ names with the fact that they treated the defendants is classified, but that the defense teams had been able to nevertheless interview some medical witnesses in unsecure spaces because they referred to the witnesses by substitute identifier codes. That is, the providers’ real names were not revealed in those discussions. Trivett also argued that the government believes it has fully satisfied its discovery obligations with respect to witnesses and information that might be relevant but that it would reconsider and provide additional material to the defense if called for. He agreed with the defense that the commission had not yet ruled on the Bureau of Prisons witnesses but said that those witnesses are “completely irrelevant to any of the legal issues before this commission.”

Robert Swann stood up next for the government and provided additional information on the name redactions in the medical records. He said that there should not have been any true names in the records provided to the defense and that if there were it was an error, not a signal that the names were not classified. Swann stated that he had previously offered to go through the medical records with the defense teams and make sure there were no improper redactions but that none had yet taken him up on that. He reiterated that the medical records and providers’ true names are classified and must be held by the government in order to protect the providers’ identities.

Connell responded that he had made an effort to come to some sort of resolution, but Swann’s suggestion that the parties go through the medical records line by line together—but with the government looking at its unredacted records and the defense looking at its redacted records—was highly impractical given that there were 47,000 pages of records. He maintained that the medical records should be unclassified, but even if they were classified Secret, they could still be produced to the cleared defense attorneys even if not the defendants themselves. He disputed the government’s arguments for withholding the providers’ identities on security grounds and said that the identifier codes given to the medical providers are, in some cases, as effective as redactions in obscuring the identity of the providers. That is because some the records refer to some individuals by multiple identifiers, and some identifiers are used for multiple people.

He also reiterated that the Bureau of Prisons witnesses are highly relevant to the defense’s account of how the defendants were treated in CIA custody and what the lasting impact of that treatment might have been. In order to provide a “rich and vivid account” of the circumstances leading up to the 2007 interrogations, the defense needs access to the additional witnesses requested.

Before closing out the session, Judge Parrella informed the parties that he would be leaving his post and transferring to a new job in early July 2019. A new military judge would replace him at that time. Parrella then put the commission into a brief recess to transition to closed session. The remainder of the proceedings for the week were conducted in classified session.

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The next session in the 9/11 case is currently scheduled for mid-June, following a break for Ramadan. Next up at the military commissions is a presentencing hearing in the case of Majid Khan, beginning June 5.