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10/22 Motions Session #4: On the CAT, Part Three

Wells Bennett
Tuesday, October 22, 2013, 4:14 PM

The prosecutor Clay Trivett will rebut the defense’s opening argument on AE200---its bid to have the 9/11 charges dismissed, or to have the death penalty removed as a sentencing option, in light of restrictions imposed by the case’s protective order.  The latter (AE13), the defense says, cannot be squared with the United States’ obligations under the Convention Against Torture (“CAT”).

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The prosecutor Clay Trivett will rebut the defense’s opening argument on AE200---its bid to have the 9/11 charges dismissed, or to have the death penalty removed as a sentencing option, in light of restrictions imposed by the case’s protective order.  The latter (AE13), the defense says, cannot be squared with the United States’ obligations under the Convention Against Torture (“CAT”).

That’s wrong, according to Trivett, for several reasons.  For one, the defense’s problem isn’t really with the protective order at all, but instead, with decisions made by original classifying authorities.  And, as the court has pointed out, the protective order’s withdrawal would still leave defense counsel in the same place they are now: unable to share classified information with others who lack the same clearance and need to know.  And this isn’t a torture case; it is instead a criminal prosecution about the summary execution of thousands of innocents.  It is true that evidence of torture may become relevant at some point.  And when that time comes, the defense has a means of presenting that evidence---including testimony by the accused.  Breaking the MOU logjam, moreover, will put all of that evidence in counsel’s hands.  Nothing to see here, Trivett seems to say.

As for the CAT, the United States fully complies with the treaty, which is not self-executing.  That means follow-on legislation is required, in order to give the treaty legal effect in the United States.  Judge Pohl asks whether customary international law is binding; Trivett answers that, yes it is, if the United States specifically recognizes the binding effect of a given customary principle.  The prosecutor cites the executive’s recognition of certain Geneva Conventions protocols as attaining customary status---but disagrees with the court’s suggestion that courts can recognize customary principles.  Still, Trivett accepts that the accused have avenues available, in U.S. courts and elsewhere, for redressing their rights under the CAT.  That said, there is no individual, judicially enforceable CAT right in play here, argues Trivett.  

Trivett refers to the United States’ submission, regarding CAT compliance, to the United Nations.  A part of it makes clear that the government views existing legislation as fully carrying out the country's conventional obligations.  Another reflects the United States’ position that the Military Commissions Act is fully consistent with the CAT.  And still another mentions redress mechanisms, including civil remedies, criminal prosecution, and others.  And, he adds, the ICRC visits Guantanamo detainees, and detainees can raise complaints with ICRC officials as well as with Defense Department personnel.  That last part piques Judge Pohl’s interest; detainees can talk to the ICRC?  Yes, says Trivett.  (The judge speculates that a direct complaint to the Defense Department won’t inspire much confidence, given the circumstances.)  So what, then, is the remedy for a claim of torture?  Trivett tells the court that the CAT doesn’t really guarantee one, and dissembles about the likelihood of a detainee's ability to win money damages.  Pushing that to the side, he gets to a bigger, and (to him) more relevant point: the defense can get any and all mitigation evidence it needs to, provided it respects the rules pertaining to classified information.  But there’s no separate, private right under the CAT for the military commission to shield here.  He adds that the defense’s proposal---to allow disclosure of classified material to unclassified persons---is a nonstarter.  That’s why we have CIPA, and its analogues in the Military Commissions Act.   A final, caution-counseling point: Trivett argues that conferring a private right of action (as the defense seems to seek here) is an inherently legislative act.

It’s reply time for defense counsel, save J. Connell III, who will reserve his remarks pending the outcome of this afternoon’s Rule 505(h) session. On behalf of Mustafa al-Hawsawi, CDR Ruiz expresses shock at Trivett’s suggestion that Ruiz’s client has no judicially cognizable rights under the CAT in this forum.  And he didn’t hear any suggestion of a remedy from the prosecution, either.  How can that be squared, Ruiz asks, with promises from President Obama, who publicly pledged compliance with the CAT?  The guarantee just doesn't jibe with the prosecution’s suggestion, that the absence of specific legislation leaves the accused up a creek in this particular forum.  Judge Pohl asks his expected question about declassification: does your argument, CDR Ruiz, call for the airing of classified material?  If it does, then the President’s remarks leave him in a bit of a bind, though the President can always declassify if he chooses.

Of course Ruiz says that his non-disclosure agreement precludes him from leaking secrets.  But the question here is what Mustafa Al-Hawsawi, his client, can say---to ICRC personnel and others.  And the protective order perversely deems Al-Hawsawi’s thoughts and experiences about his interrogation to be classified.  Those aren’t properly classified standing, according to Ruiz.  Not so for the court, who recites the relevant provisions of the order to Ruiz, aloud.  One, for example, speaks of observations about “classified information . . . including” observations of the accused regarding CIA interrogation.  A skeptical Ruiz asks the court about the authority---the judicial authority, seemingly---underlying such language.  Al-Hawsawi’s observations, Ruiz argues, don’t belong to the United States; they belong to him.  The contrary view, implied by executive classification decisions and the protective order, runs directly counter to the CAT.

Ruiz here distinguishes his position from that of MAJ Wright, Khalid Sheikh Mohammed’s attorney.  Unlike Ruiz, the latter focused mostly on counsel’s obligations under the CAT, and the protective order’s effect on those---as opposed to the accused’s abilities to communicate.  That distinction made, Al-Hawsawi's lawyer carries on.  The Memorandum of Understanding might be modified, he says so as to remove an obligation on the lawyers to prevent their clients from relaying classified information to others.   Removing these restrictions, Ruiz argues, thus could put Al-Hawsawi in a position to develop further information bearing on his torture.  Judge Pohl spins his by now familiar yarn: can defendants be prohibited from disseminating classified information to third parties?  For Ruiz, the question is difficult as a general matter, but much less difficult in this capital case, where rendition, detention and interrogation all are in play.  But the narrow question here is only whether the commission indeed will rule that, yes, Al-Hawsawi can communicate, himself, with third parties about stuff that counsel must treat as classified, under executive branch decisions and the overbroad Memorandum of Understanding.   A few words more, and Ruiz concludes.

Speaking for his client KSM, MAJ Jason Wright emphasizes his most salient point: just because executive branch classification rulings defy the CAT, doesn’t mean this court has to follow suit.  Mere mention of this provokes the same bench reaction as earlier: the judge doesn’t get how he can give anyone a right to disclose classified material; and yet, he tells Wright, the very wrong alleged by the defense is the accused’s inability to disseminate such material.  Doesn’t this tension implicate some sort of “Greymail,” to borrow a term the prosecution has used?  A defiant Wright: our witness will testify that it is unprecedented, for a State to torture an individual and then deny them a right to investigate that torture and to speak about it openly.  And if the court cannot rid us of the protective order’s gag on RDI discussion by accused, then it certainly can---and should---dismiss the case or knock out the capital referral.

Two cents more come next from Cheryl Bormann.  She cites protective order provisions that wrongly purport to “classify” the accused’s observations and experiences during interrogation.  But those can’t be classified, Bormann argues, and she can’t imagine any executive branch law would authorize their classification, either.  After all, Bormann says, the United States doesn’t purport to bar her client from talking with the ICRC.  Well, if the executive branch can’t stop spillage there, then a military judge can’t try to stop spillage, either, by means of a protective order or MOU.  Okay, says Judge Pohl: do I have any power to limit further dissemination of classified information, by a defendant?  Bormann mentions Scooter Libby, and answers yes---but Libby, she points out, held a clearance.  CIPA works differently, though, when the holder of the information is not security-cleared, and indeed had any classified information forced upon him involuntarily, by torture.   In such a case, there’s absolutely no power to classify a person’s thoughts and experiences, period.  Bin Attash’s Learned Counsel winds up.

The military judge asks Trivett if the military commission can limit the defendant’s ability to disseminate classified information, and Trivett says yes.  This is so even with respect to information learned during interrogation, which involves sensitive sources and methods.  The court hypothesizes: could the accused, prior to referral, write a letter to a third party and describe their treatment?  Nope, answers Trivett.  That would mean shipping by non-legal mail, and screening for the leakage of classified sources and methods.  Fine then,  suppose the detainee wants to complain to an international body, Judge Pohl hypothesizes.  Can they do so?  Or does the protective order preclude that?  Such complaint, Trivett answers, requires prior authorization for the government.  Defense counsel pounce, and all put their requests for such authorization on record; the lone exception is Connell, whose motion on this issue was denied.

Our already meandering, complex discussion meanders more, and grows more complex, as KSM lawyer David Nevin raises an issue: does the protective order apply only to classified information learned during this proceeding, or to all classified information, including that which his client learned forcibly, before the case’s inception?  KSM’s ability to investigate and press his CAT claims will be much different, if the answer is the former.  Trivett counters: disclosure is prohibited any time the accused seeks to disclose classified material to uncleared personnel.

So ends argument---for now---on AE200.  Of course there will be more, during a classified Rule 505(h) session, and perhaps remarks from Connell  in open session after that. Wait: will only Connell be in the room for the 505(h), or will other folks, too?  After all, argues Trivett, only Connell and Al-Baluchi's other attorney have signed the Memorandum of Understanding regarding classified discovery---and Connell's motion implicates such discovery. Return serve from Connell: I already circulated copies of my motion to all counsel, via the commission's classified network, as I must under the rules.  (Apparently the prosecution protests this move, and says so out of microphone range; Connell relays this to the military judge.)   Trivett persists, insisting that other not-signed-up counsel be excluded from the closed meeting.  The defense lawyer is still flummoxed: the documents in question were marked unclassified by the prosecution, but Connell had worried that they contained classified stuff, and therefore brought the issue to the attention of security officials.  The prosecution's belated concerns, about the presence of non-MOU personnel during the Rule 505(h) accordingly strike Connell as a bit too rich.  (Nevin stands and points out an inconsistency: if, as the prosecution says, the protective order's withdrawal wouldn't affect defense counsel's obligations not to disclose classified things, then how can it be critical for defense counsel to sign on to the protective order in the first place?  Its a heads-I-win-tails-you-lose proposition for the defense, Nevin says.)   Pause while the court mulls, and now rules: the prosecution circulated the document in question to defense counsel already.  Thus other cleared counsel will be permitted in our Rule 505(h), notwithstanding their refusal to sign the protective order. The commission is in recess.  And the closed session means that, so far as your correspondent is concerned, the recess will last until tomorrow at 0900.  We'll see you then.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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