Terrorism Trials: Military Commissions

Majid Khan Arraignment #2

By Benjamin Wittes, Lawfare Staff
Wednesday, February 29, 2012, 10:02 AM

Military Judge James Pohl walks in promptly at 9:00 am and calls the military commission to order.

Trial counsel Courtney Sullivan of the Justice Department begins by announcing that there have been minor changes to the charge sheet. She introduces the prosecution team and various other personnel, and says that the government is prepared to begin. Defense counsel Lt. Col. Jon S. Jackson then introduces himself, as do the other members of the defense team.

Judge Pohl then turns to the defendant and asks him if he speaks English--which he does, very well--and needs an interpreter. Khan says he does speak English and doesn’t need an interpreter. Judge Pohl tells him to let him know if he needs help at any point.

“Sure thing,” says Khan.

Judge Pohl then walks Khan through his rights to counsel and verifies that he wants to be represented by his current lawyers. Khan affirms that he’s satisfied with his three lawyers. Down the road, he says, in some other proceeding, he wants a Pakistani representative and help from the embassy, but for now, he is satisfied with the three. Judge Pohl emphasizes that in future hearings, he has the right to have an additional lawyer as long as that person meets the necessary qualifications. Khan says he just wants it to be on the record that he has made an official request to have a Pakistani help down the road.

Judge Pohl then verifies that neither side wants to challenge him as the presiding judge. Neither does. He takes care of a few other preliminaries, including verifying with Sullivan that the changes to the charge sheet to which she had referred related to whether certain overt acts the government is alleging predate the conspiracy agreement. She affirms that this is correct.

Judge Pohl then proceeds to the arraignment, asking Sullivan to specify the charges.

She responds: murder in violation of the laws of war, attempted murder in violation of the laws of war, material support for terrorism, spying, and terrorism.

The defense waives a reading of charges.

Judge Pohl then asks whether there are any motions before he takes Khan’s plea. Defense lawyer J. Wells Dixon says there is one, but Judge Pohl--after verifying what it is--asks him to defer it until after the plea, saying that it only makes sense in the context of plea. Dixon agrees.

Judge Pohl then asks how Khan pleas, and one of his attorneys responds: “Mr. Khan pleads as follows to all charges and specifications: guilty.”

Judge Pohl then turns to Dixon’s motion, which deals with the pretrial agreement (PTA). (See filings AE11, AE11A, and AE11B.)

He says that the issue may be a little opaque until he rules on it, given the nature of the motion, but he clarifies with Dixon that Dixon wishes certain parts of the PTA to remain sealed and asks  until when he wants them kept under wraps?

Dixon responds that he wants them sealed until such time as the government is required by law to unseal and disclose them. And the reason is concern about the welfare of Khan’s family and friends in the U.S., Pohl asks. Yes, Dixon responds, there is no dispute as to the factual underpinning of the defense’s concern.

Judge Pohl says he has to be cautious in the way he discusses it, but as he understands it, the defense is concerned that if the entire document were released, that would provide information that is currently not public knowledge. Or would it, rather, he asks, confirm information that already is public? Dixon is not entirely clear about the answer to this question but says Khan’s is an exceptional case that justifies the measure. Judge Pohl asks him if he is concerned about a generic threat, as opposed to a specifically identified threat. And Dixon responds that there is a specific historical basis for the concern, and the concern is not generalized. It is a particularized concern about particular individuals in particular locations, not a generalized concern, as might be present in a less extraordinary case. Pohl pushes back: But there’s no specifically identifiable individual threat beyond what Dixon just said? Dixon confers with co-counsel and responds that the defense has identified in its brief with specificity the nature of the concern, which, he says, is also identified in the charge sheet. But that’s a public document already, Judge Pohl notes.

Dixon concedes that but says it doesn’t resolve the issue. The defense, he says, is asking for very specific relief that would prevent certain actions in the future that it believes are likely and not merely theoretical. As evidence, he says, we point to facts in our sealed brief and evidence in the charge sheet.

Judge Pohl turns to the prosecution and asks whether they oppose this request. Sullivan says she does, though she understands the defense’s concern. The prosecution’s position, she says, is that Rule 806 articulates a presumption in favor of public proceedings and documents. To grant the defense’s motion, she says, Judge Pohl would have to find that the relief is necessary to protect individuals’ safety. The prosecution does not believe that the defense has made that case. You don’t believe that the risk is sufficient to warrant granting defense relief, Judge Pohl asks.

Sullivan says that she doesn’t disagree that the defense has articulated a theoretical risk. But much of the basis for the risk is in the public domain already. The government is not in a position to go all over the world and run down every lead for every possible risk, she says. While the government is not disputing the theoretical risk to individuals in foreign countries, actual risk hasn’t been shown, and there’s an overwhelming public interest in disclosure. Moreover, the relief the defense seeks is not narrowly tailored.

Judge Pohl asks whether she has any concerns that disclosing the complete PTA will make it hard to find commission members who are not aware of this issue prior to their coming to court. Sullivan response that given the proposed delay in sentencing, she’s confident that the voir dire process can yield a panel that doesn't know about it.

Dixon, at this point, makes clear that he actually has two requests for relief. One involves the sealing of filings, and regardless of how Judge Pohl rules on the sealing the PTA itself, the defense does request that the filing underlying it remain sealed. The second, he says, involves a matter the client wants the defense to raise--but it’s a classified matter and the court would have to go into closed session to discuss it. He thus requests that they do so.

Judge Pohl says he wants to take the two issues in order. He asks Sullivan whether she objects to keeping the filings sealed. She does.

There is a long pause and Judge Pohl considers some papers.

He then asks Dixon whether he wants to close the proceedings only to discuss classified information. Dixon responds that yes, there is a document he wants to discuss that is either classified or presumptively classified.

What if, Judge Pohl says, we don’t discuss the document, but I just read it? Is it okay if we don’t go into closed session then? Dixon says that’s fine with him, and Sullivan okays it as well, though she notes that she has had no notice of this document or any request for closed session prior. Judge Pohl suggests a recess in which Dixon can give Sullivan the document and, if it’s okay with her, give it to him and he can read it--and then decide whether a closed session is necessary. All are okay with this, and a recess follows.