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Pre-trial sessions resumed this week in the military commission trial of five Guantanamo detainees, who allegedly orchestrated the September 11th attacks. Only three of the five accused were present Monday morning when hearings resumed after the weekend recess. Walid Bin Attash used his right not to be present as a pointed stab in his months-long fight to replace his defense team, writing to the court that he would not attend “because of the presence of the attorneys Cheryl Bormann and Michael Schwartz on my defense team.”
The Public’s Access to Guantanamo
The agenda for the morning is AE 400, which is a third-party motion by the press to gain access to transcripts of the proceedings that the government unilaterally redacted. Dave Schulz argues on behalf of the 15 news organizations seeking to enforce the public's right of access to a transcript from an open proceeding held before the commission on October 30, 2015. While the hearing was initially open, afterwards, the government unilaterally redacted the unofficial transcript made available to the public on the commission's website. The redactions censor the testimony of a witness who appeared under the pseudonym Staff Sergeant Jinx, and appear to cover mundane or known facts such as what the acronym DIMS stands for (“Detainee Information Management System”), Sergeant Jinx's qualifications and his service history, the number of guards that are used during forced cell extractions, and the complaints of the detainees about the use of female guards.
Schulz argues that the public has a constitutional right to the transcripts of an open official proceeding and that the government may not unilaterally censor a public record after the fact. The press, Schulz says, motions for access to the full transcript based on the following legal positions: (1) the transcript of the proceedings are judicial records and therefore subject to the constitutional access right; (2) the government does not have the constitutional authority to unilaterally redact such transcripts without any involvement of the court or any review of its reasons for redaction; and (3) the government in this case has not made the proper showings necessary to uphold the redactions it made.
First, according to Schulz, a judicial record is any document filed with the court that plays a role in the adjudicative process. Transcripts of these proceedings clearly fall into this category—they function to inform the public and offsite reporters about the proceedings, allow reporters to check the accuracy of their stories, and provide a record to the defense of the day’s proceedings. Moreover, the Supreme Court has never suggested that an open proceeding is only open to those who are bodily present in the courtroom. Once information is admitted into an open proceeding, the right to access that information is held by the entire public, not just those who heard the words in person.
Second, Rule 806 makes clear that it is the military judge who is responsible for protecting both the accused's right to and the public interest in a public trial. Rule 806(b)(2) requires specific findings by the military judge anytime a proceeding is closed to the public, regardless of whether the information a party seeks to admit is classified. In the military commission scheme, the government does not have the discretion to close a session to the public or to seal a judicial record.
Here Judge Pohl pushes back a bit: he is wary that the role of the judge is to sanction the diffusion of classified information via the web, simply because that information was mistakenly revealed in an open session at Guantanamo Bay. Schulz responds that refusing to redact is not akin to declassifying information or spreading classified information. Rather, the judge is vindicating the public’s constitutional right to a transcript of classified statements that were already released by the government in the course of an open hearing. Schulz essentially argues that what happens in open court is public property. If the government wants to prevent the further spread of classified information uttered in an open proceeding, it must object at that time and the court, upon a sufficient showing by the government of harm to a compelling interest, will stop the audio recording, thereby preventing the statement from reaching the court reporter who is on a 40-second delay. Alternatively, if the government can show after the fact that there is a compelling need to redact a transcript that overcomes the public’s right of access to court, then the judge may grant permission to seal or redact the transcript.
A new member of the Bin Attash defense team, Edward Perry, enters to advocate on behalf of Bin Attash on this issue. He asks the commission to consider an order prohibiting ex-post redaction unless the government has complied with the standard set forth in Rule 505, which mandates that only the judge may close a hearing and only for a justified purpose. Again, Judge Pohl is concerned that this method will result in him ordering the release of classified information. Perry responds that the release has already happened, and the judge has a role to play in the extent to which it remains accessible once released.
Mr. James Connell, Counsel for Ammar al Baluchi, stands to speak on this issue too. The starting point, according to Connell, is the Sixth Amendment rather than the First Amendment. The Sixth Amendment contains within it the right to a public trial, and the government has not claimed that that this right is impracticable or inapplicable to defendants at Guantanamo Bay under the standards laid out in Boumediene v. Bush. In fact, he argues, the Sixth Amendment interest in a public trial is especially essential at Guantanamo, where the trials are located in a secure facility on a remote island, the courtroom has controlled access, there is substantial public interest in these proceedings, there is no general electronic transmission, and the official transcript is not available until the parties review it and the military commission authenticates it.
Under these circumstances, the unofficial transcript posted online is all the more important as a way for members of the public to understand the happenings in the military commission proceedings.
Additionally, Connell notes that the regulations governing these proceedings already provide a mechanism for protecting against the unintentional disclosure of classified information: the court reporters who write the transcript operate from outside the courtroom on a 40-second delay and are required to “avoid inclusion in the draft, unofficial/unauthenticated transcript of any inadvertent utterances of classified or protected information inside the courtroom.”
However, when classified information is released without objection, the desire by one of the parties to seal or redact that judicial record after the fact is a constitutional event, requiring the intervention of the judge to weigh the risk of dissemination with the right to a public trial. Finally, judicial intervention is especially important because it triggers notice to the other side and the opportunity to be heard, which is at the core of due process.
With this, Judge Pohl calls time and orders a recess.
Upon return, David Nevin, counsel for Khalid Sheikh Mohammed, adds two points. First, Nevin argues that once material is placed into evidence in an open military commission session, that information becomes the judge’s information. For example, Nevin recalls a time in 2012 when he was speaking to the commission and the red light, indicating he was revealing classified information was turned on—not by the judge or the commission but by the CIA at an offsite location. Judge Pohl was incensed that someone besides him was controlling what information was leaving the courtroom. After that, the CIA was disabled from controlling the output of the court. Second, Nevin reminds the court that one of the country’s principal grievances against the Crown at the time of Revolutionary War was that the English court of law conducted its proceedings in secret. The Founders understood that the public legitimacy of a criminal proceeding is tied to the ability of the public to view that proceeding.
The counterargument is delivered by Military Commissions Chief Prosecutor Mark Martins, who requests the court deny the motion for public access to the full unofficial/unauthenticated transcript of the October 30th hearing.
BG Martins first asserts that these transcripts are not judicial documents because they are not the transcript that is authenticated by the military judge. Even if they are judicial documents, he implores the judge not to overturn the determination of the government’s classification authorities that further dissemination of the information in these transcripts would cause damage to national security. BG Martins argues that this is not the kind of information that has traditionally had a right of public access, and even if there is some limited right of to the full transcript, the court should defer to the government’s expert conclusion that the redactions are necessary to prevent damage to the national security and are narrowly tailored to serve an overriding interest.
BG Martins also rejects the contention that government must object at the time the classified information is revealed or else it has waived its interest in containing the dissemination of this information. Rather, he argues that the government may use many measures to protect classified information, including objecting, calling for a closed hearing, and after the fact redaction upon proper justification. In this case, BG Martins asserts, the redacted transcript provides adequate testimony to show that the methods of restraint used by guards are humane, methodical and secure, but properly censors details about the guard force and their techniques that are not publicly available.
On rebuttal, Schulz argues that a judicial record is any document used in a judicial proceeding, regardless of the document’s name or classification. Schulz succinctly upends the prosecution’s argument by accusing the government of saying that because the information needs to be closed, the court should not find a constitutional right of access. But this analysis is flipped. Rather, if the transcript is a judicial record, then the constitutional right of access applies; whether the information “needs to be closed” is immaterial to the analysis of whether it is subject to the right of access. The classified nature of the information is only relevant as to whether there is a compelling interest to override the right of access. Schulz concludes but stating that ultimately, what is most important, is that the court makes these determinations and not the government.
Connell chimes in one more time to state that the Rules of Court establish that the court may direct that part or all of a transcript not be released, but nowhere do they authorize the Department of Defense classification review team or the Office of the Chief Prosecutor to direct that part of a transcript not be released.
The commission closes the morning session.
The afternoon session begins with four of the accused now present, although Bin Attash continues to boycott the proceedings.
The Pain and Punishment of a Woman’s Touch
The afternoon session will be devoted to a defense motion to reconsider an order denying discovery requests for information about why the government changed a regulation governing female guard contact with the accused. The new regulation deletes a provision stating that “close contact with unrelated females is culturally inappropriate,” and generalizes a directive that “female guards and interpreters should not insist that the detainees make eye contact with them” to apply to all guards and interpreters of any gender.
Nevin argues for the defense that the court failed to apply the correct standard when it denied the discovery motions because it did not analyze the issue under the Eighth Amendment. Although the Eighth Amendment generally applies only to convicted detainees, Nevin argues that courts have adopted the same standards for pretrial detainees.
According to Nevin, the Eighth Amendment is implicated in one of two ways here, and both lead to the conclusion that the policy change may violate the detainees’ rights.
Either the Eighth Amendment flatly prohibits the intentional imposition of punishment on pretrial detainees, or it flatly prohibits the unnecessary and wanton infliction of pain on detainees. Whether the court analyzes female guard touching as intentional punishment or unnecessary and wanton infliction of pain, Nevin argues, the new policy meets this standard and therefore violates the Eighth Amendment. First, the record bears out the inference that the change in policy was made with an intent to punish—female guard touching was never a problem in the past, and the changed policy occurred amidst “remarks of political leaders that these men should be allowed to rot in hell, that we should return to waterboarding.” Second, Nevin argues, female guard touching is an unnecessary and wanton infliction of pain on these detainees (emphasis added).
To support this conclusion, Nevin explains that all five of these defendants have personal histories of sexualized torture that specifically involved extensive unwanted touching by women and forced nakedness, contrary to their religious beliefs. The torture programs they endured were specifically designed by psychologists to inflict pain based on the degradation of their religion. The forced touching by female guards revives the torture experience and generates intense physiological responses of pain. Nevin asks the court for the opportunity to conduct discovery into whether there is a valid penological purpose behind this policy change or whether the change was made to intentionally inflict punishment or pain on the defendants.
Judge Pohl is not keen on the idea of the court restricting female MPs from doing the same work as their male counterparts, but Nevin cabins the concern by emphasizing that this order is necessary to protect the rights of these particular defendants only, who were subject to the extraordinary circumstances of being tortured through sexualized distress tactics that degraded their religion.
Connell adds that the court’s analysis, which was based on the framework laid out in Turner v. Safley, does not apply here because the Turner test balances a prison policy with penological interests. Here, the detainees have not been convicted of any crime and are being held under the laws of war, so there are no penological interests at play yet. Rather, Connell advocates that the court use the test laid out in Bell v. Wolfish, which asks whether administrative regulations are implemented in the genuine interests of safeguarding institutional security.
Essentially, Bell imports the Eighth Amendment standard into the ambit of pre-trial proceedings, permitting the government to detain and restrict a pretrial detainee to ensure his presence at trial, so long as those conditions do not amount to punishment or otherwise violate the Constitution. So whether the Eighth Amendment applies directly to these proceedings through the due process clause or whether the same standard applies through Bell, the detainees have the right to be free from punishment until convicted, just as they enjoy the presumption of innocence, the protection of the excessive bail clause, and the protections of due process.
21st Century Detainees
The last issue of the day concerns the detainees’ access to laptops, and the government’s apparent failure to follow multiple orders by the court to return the laptops used by the detainees from 2008-2010, when they were without counsel and conducting their own defense.
The government insists that two detainees have had their laptops returned, and the only thing holding up the return of the laptops to the other three defendants is the refusal by their defense counsel to follow the established protocol.
Gary Sowards, also representing Khalid Shaikh Mohammed, retorts that the protocol violates the court’s order, and so complying with it would be to comply with a violation of a court order. Sowards explains that the order requires the return of the same computers with the same capabilities as were used in 2010. The protocol issued by the government, however, requires modifications to the capabilities of the computers before they may be returned to the detainees.
The modified computers are unable to store or process large amounts of data and have no capacity to produce media files so that the detainees may process the information and effectively communicate with their counsel about the mounds of evidence in this case. In a capital case, it is essential that a defendant have these capabilities to assist in his defense and communicate with his counsel.
As the issue becomes more and more technologically thorny, Judge Pohl calls for a short recess.
The session resumes with Connell offering a short-term solution to the impasse: all the defense teams truly need in this moment is for the detainees’ computers to have a working USB port and an external CD drive. This way, the detainees may access the evidence via disk, through the normal process of delivering information to the detainees.
This fix, however, does not address the problem that the computers do not allow for effective communication between counsel and defendant in a complex litigation case. For this, multiple defense attorneys all stipulated that the detainees need access to Microsoft Suite programs. Defense counsels are asking for the court to require the government to comply with its order and provide the meaningful use of laptop capabilities to their clients, rather than a “a battered-down, beaten-out and stripped-down version of what a computer is, [that] has a functionality from 2001.”
The prosecution admits it is also their preference to give the detainees new laptops, but denies the allegation they disobeyed the orders to return the old laptops.
Judge Pohl does not react kindly to this defense. He tells the prosecution that he ordered the return of the laptops, and it is unacceptable that the government then decided it would comply with conditions, without requesting those conditions from the court or objecting to the initial order which did not include such conditions.
Judge Pohl warns the prosecution that simply stating, after the fact, that it unilaterally imposed conditions on complying with his order for a “legitimate penological purpose” doesn’t cut it—the court must know exactly what that purpose is and accept that it is, in fact, legitimate.
Walter Ruiz, for Mustafa Ahmed Adam al Hawsawi, posits that this is not the first time the government has sought to disobey or modify an order by creating conflicting protocols it states it must also comply with. Sowards adds that defense counsel shouldn’t have to go back to their clients again and tell them they have to wait for an order to be complied with. Rather, the court should direct the government to permit the return of the unmodified laptops today.
Judge Pohl accepts that the detainees need laptop computers in order to properly defend themselves in a capital case with so much data, and directs the prosecution to find out, within the next two weeks, whether the court can provide the detainees relatively new computers with basic Microsoft Office programs and with the ability to store large quantities of data. He is unimpressed with the idea of short-term fixes, and wants to solve this issue once and for all so the litigation can move forward. The prosecution commits to checking on the status of acquiring computers and working with defense counsel to provide new capabilities and programs to detainees without overriding security concerns.
The session concludes with the parties deciding on a plan for the rest of the week and adjourns for the day.