Published by The Lawfare Institute
in Cooperation With
We thus march on to AE92. It’s an ex parte secret motion, Kammen acknowledges, and also insists that he now will address nothing classified. Instead he simply asks for an unclassified version of the pleading to be released to his client. That request implicates values similar to AE181, in which prosecutors have argued that some portion of the case evidence cannot be shared with Al-Nashiri. It’s an evergreen problem for Kammen, one that stands to render his assistance ineffective. We’ve litigated this already, Lockhart rejoins; your honor has so ruled. And she adds that this particular pleading cannot be reduced to unclassified form in any case. For his part, Kammen denies that the court has in fact ruled on AE181---and lo, it turns out that Lockhart misspoke, as she concedes. But the prosecutor emphasizes that the court in fact has rejected the accused’s effort to review classified materials, AE181’s pendency notwithstanding.
Now its time for AE178 and a related motion to compel, two supplemental filings which Al-Nashir attorney CDR Brian Mizer will address. The main pleading concerns defense attorney and consultant Nancy Hollander, and her on-again, off-again access to classified discovery and to her client, Al-Nashiri. In particular, Mizer speaks of Hollander’s program read-on, or “PAR.” The latter, he says, governs access to discovery, and to Al-Nashiri himself---and has been improperly held up. This, despite an uninterrupted attorney client relationship between Hollander and Al-Nashiri from 2008 to 2013. And yet in 2014---as Mizer has argued earlier, in litigation on the same issue---Hollander’s access was denied, because Hollander was a pro bono lawyer, and because she was engaged a dual representation of Al-Nashiri in the European Court of Human Rights. Mizer and company had raised the issue earlier; Judge Pohl, in turn, had demurreed, while allowing Hollander to once more seek the needed read-on. But that too was recently denied---and the denial prompted Al-Nashiri’s lawyers to renew their challenge to what (to them) looks like an arbitrary denial of counsel to a capital accused.
Mizer finds the recent denial highly dubious, given that Hollander earlier had been approved repeatedly for security clearances. All the more so, in light of (seemingly, to Mizer) whited-out, handwritten alterations to the earlier PAR itself. The lawyer suspects that the Defense Department has yanked Hollander’s read-on before the commission, in retaliation for Hollander’s participation in the ECHR case. He thus seeks an evidentiary hearing about the circumstances surrounding the PAR’s denial (Mizer alludes to a veto by the CIA); or an abatement of the proceedings. The whole thing just “doesn’t pass the smell test,” Mizer says; moreover, the government’s security discretion isn’t unbounded, when there’s a colorable constitutional argument---like serious interference with the attorney-client relationship between Hollander and Al-Nashiri. Mizer then previews a number of witnesses the attorney wants to hear from, in nailing down the circumstances of Hollander’s most recent access denial. (The court seems to think that the official who signed the PAR, a Mr. Varga, is the most important of Mizer’s would-be witness group.) The defense lawyer sums up: it simply can’t be the case that the government can pull the defense team’s access, one by one, in a case like this.
Over to prosecutor CDR Andrea Lockhart, who points out that this motion renews a prior one. The military judge earlier had ruled that Hollander could resubmit her PAR request---which Hollander did, and was denied. Lockhart also takes issue with Mizer’s characterization of the facts, particularly with respect to the generation of the PAR document at issue. The question isn’t what this or that form looks like to Mizer; it instead is whether procedural rules were obeyed, and n this case, the rules were obeyed. And that ends the inquiry: we are not here to second-guess executive branch security determinations.
The court wonders: suppose that, in the most recent denial, the security official relied on inappropriate grounds to deny Hollander’s access. Could Judge Pohl then intervene? Lockhart thinks there would be review outside the commission, according to set security protocols. Or what about simultaneous representation of an accused, in criminal, civil, and international fora; is that “dual” representation, warranting access denial? Now the prosecutor says she doesn’t know the answer---but she resists the idea that the miltary commission could act, if it disagreed with security officers’ decision. Such officers don’t have to explain those decisions in great detail, in Lockhart’s view.
There’s nothing nefarious here, she says. Were the case otherwise, Lockhart argues, the government wouldn’t have continued to read new counsel onto special access programs, as needed. The case law, lastly, presumes regularity of process; Al-Nashiri’s lawyers can’t overcome that, simply by noting that one person among many hasn’t been granted access. The prosecutor ends by zooming out a bit: all that Hollander is disallowed these days, after all, is information within a particular classified program; and access to Al-Nashiri himself. But the government is not---not---precluding Hollander from representing Al-Nashiri. That she can do plenty well, outside the courtroom. Judge Pohl tries again: what if I conclude that the proffered reasons for Hollander’s access denial are wrong; would that be reviewable? And Lockhart pivots again: an administrative process for such review exists, she says. But there’s nothing in the documents to suggest alteration or arbitrariness along the lines the defense has suggested.
Rising in reply, Mizer refers to the redacted PAR---that is, to the initial, July document containing the handwritten notation in question. Exhibit in hand, the defense lawyer notes that “approved” was whited out on the July security form, and then “disapproved” was checked. That’s significant, given the “presumption of regularity” which Lockhart had cited; a handwritten adjustment from “approved” to “disapproved,” and for facially doubtful reasons, sure looks irregular to Mizer. But what about later security materials? Hollander had submitted again, after all, and was again denied; given that, Judge Pohl wonders whether the most recent denial rationale ought to control. That’s something of a non-issue, Mizer tells the court: the reasoning isn’t indicated at all on the more recent denial form. And that defect only goes to Mizer’s larger point: Kammen is involved in multiple representations of Al-Nashiri, and his access hasn’t been denied, as Hollander’s has been for---wait for it---her having represented Al-Nashiri in multiple litigations. When asked to do so, Mizer treads where Lockhart would not: he says “dual” representation means representation of people with diverging or conflicting interests---something very much not in play here, with respect to Hollander and Al-Nashiri. The lawyer sums up: Hollander’s denial was arbitrary, she’s not a security threat, and the court’s intervention under such circumstances is entirely proper.
Lockhart wants to end on the same note as Mizer: the legitimacy of security concerns regarding Hollander. The process here regarding those concerns was followed, by experts in a position to make security access decisions. We shouldn’t second guess those. The court is still troubled, seemingly, by the absence of any reason for denying Hollander access in the most recent PAR. An inquiry into the most recent denial’s reasoning thus would call for evidence, the court suggests---and Lockhart agrees, while cautioning strongly against any inquiry into special access eligibility. Again, there’s an administrative procedure in place for such things, so far as Lockhart knows. Lockhart concludes by urging the court to deny any bid for an evidentiary hearing, and the defense’s underlying motion.Guess what: there is an administrative process for security clearances. But, Mizer says, there’s no such process for special access program denial. Thus, he seems to say, either the military commission steps in, or Hollander's arbitrary treatment will go unreviewed. The court is intrigued, and invites both parties to file supplemental pleadings on the issue---to the extent necessary to resolve the renewed AE178. That motion thus is submitted---sorta---and we take a lunch recess after the parties discuss housekeeping matters.