Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

5/28 Session #4: On the Motion to Reconsider the RDI Discovery Order

Wells Bennett
Wednesday, May 28, 2014, 4:44 PM
We return from a recess-ette.  The parties quickly handle AE272, in which the defense asks the commission to replicate, in this case, a ruling entered in the 9/11 case.  Recall that in the latter, the FBI had conducted a security investigation, contacted a member of the defense team in connection with its inquiry, and ultimately asked the team member to sign a non-disclosure agreement.

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We return from a recess-ette.  The parties quickly handle AE272, in which the defense asks the commission to replicate, in this case, a ruling entered in the 9/11 case.  Recall that in the latter, the FBI had conducted a security investigation, contacted a member of the defense team in connection with its inquiry, and ultimately asked the team member to sign a non-disclosure agreement. News of the episode shortly found its way to 9/11 defense counsel, who perceived a possible conflict of interest; on the defense's motion, the military judge then effectively invalidated the gag order, and instructed any defense personnel contacted by investigators to make that fact known to the lead lawyer for each accused.  (For its part, the prosecution was entirely walled off from the FBI inquiry.)  Now Al-Nashiri’s defense wants a comparable order from Judge Pohl.  The prosecution doesn’t really oppose this---but scrupulously refuses to get involved beyond reiterating as much in open court. We therefore turn to the week’s big-ticket item: AE120D is a prosecution motion to reconsider Judge Pohl’s prior ruling, which directed the government to turn over significant, classified discovery into the CIA’s notorious program of rendition, detention and interrogation---some ten categories of information overall.  In essence, the government now wants that order rescinded; or, alternatively, further clarification of the legal standard that the military judge has applied in ordering prosecutors to hand over sensitive material. The Chief Prosecutor rises and asks the court for reconsideration, having in mind the applicable legal standard: an order should be revisited if either party shows new facts, or a clear legal error by the court. Martins cites some new facts: the defense has received extensive classified discovery already, by means of summaries of Al-Nashiri’s “experiences” within the RDI program---and some of this material, as of now, indeed can be shared and discussed with the accused.  That marks quite a change from before, gauging by defense counsel’s past complaints about their inability to speak with Al-Nashiri freely, about what the CIA did to him.  On to legal error: the Chief Prosecutor here cites military judge’s failure to consider rules governing the classified information privilege, as they relate to discovery.  Martins has in mind the Yunis and Sims cases---which noted the government’s compelling interest in protecting national security information, and insisted on respect for that interest, in the application of discovery rules. For that reason, the usual procedure allows for the crafting of legally adequate summaries for classified discovery, or sanctions against the government.  Initially, the court is puzzled: the government had denied the defense’s discovery requests, but didn’t rely on secrecy procedures in doing so; it instead objected instead on garden variety discovery grounds---relevance, materiality, and so forth right?    Martins disagrees with that account, and quickly returns to his second principal claim---that the court erred legally in crafting its RDI order.  That ruling, the lawyer stresses, called for the production of unredacted documents regarding enhanced interrogation techniques, among other things. In this respect, the order seems to preclude Martins and company from turning over legally adequate summaries or substitutes for classified material where needed---and that's contrary to the secrecy rules which ordinarily permit them to do just that. Classified discovery---including litigation over the adequacy of summaries of classified material---is supposed to be an “interactive” process, Martins explains.  But that goes out the window---to the detriment of defense and prosecution alike---if classified documents must be handed over as an initial matter, unredacted. Martins argues for a few minutes more along these lines, underscoring the overall structure: if classified material is discoverable, then prosecutors may claim a privilege and shield it from production---provided, of course, that prosecutors also turn over summaries or substitutions that put the accused in substantially the same position as he would have been, upon production of the classified items.  The RDI order makes an end run around this setup, and thus should be taken back. Learned Counsel Rick Kammen is incredulous. He cites a widely-noted January letter from Senators Carl Levin and Dianne Feinstein, wherein the pair urged the President to declassify all information concerning the “now-defunct” CIA RDI program.  They asked, Kammen points out, that the classification issue be promptly resolved, or the case transferred to a civilian court.  For the lawyer, the letter’s point is plain: we need to break the CIA’s stranglehold on the truth.  His client, after all, has been tortured emotionally, sexually, and otherwise.  And Judge Pohl’s order regarding RDI discovery went straight to those very issues---and was in that respect quite brave, says Kammen. Brave just like Judge Sirica’s order was, in compelling discovery into tape recordings made by the Nixon White House.  Such is the magnitude that the government asks Judge Pohl to overturn. But put the momentousness aside. Kammen also notes another, more straightforward problem for the prosecution. It has run afoul of the usual process for reconsideration. Ordinarily, the rules insist upon a contemporaneous or prior pleading, requesting permission to seek reconsideration and setting out new facts or new law warranting that course of action.  But the government didn’t do that, for reasons that are unclear.  And at any rate, there isn’t any new law here.  The parties have debated cases like Sims and Yunis time and again; small wonder, as both were decided ages ago.  And there isn’t any new factual claim here, either. The lawyer is further befuddled by the suggestion that he can openly share classified stuff with his client---an uncleared man whom the government calls a terrorist.  It's a head scratcher.  Under the new rules of the road, can Kammen and company read non-Arabic classified documents to Al-Nashiri?  Can the materials be translated, or taken back to Al-Nashiri’s cell?  No such questions are addressed by Martins’s gambit---unsurprisingly, because the gambit isn’t really contemplated by secrecy law.  It’s just mind-blowing for Kammen.  People go to jail for showing classified documents to uncleared personnel.  And, Kammen adds---with due respect to Al-Nashiri---if somebody has to go to prison, its got to be the client. The lawyer further disparages the government’s ability to provide legally adequate summaries for the discovery at issue---something that the parties won’t have to get into, if the court’s “brave” order is allowed to stand. And it ought to, considering the defense’s inability to obtain needed information in other areas---say, to interview the likes of Jose Rodriguez and company.  Kammen then scoffs at the suggestion that the case might not be able to go forward, if the discovery order sticks; that’s a frivolous claim, in Kammen’s view---though he acknowledges that prosecutors might have a tough time executing Al-Nashiri, or admitting his statements, given his torture by the CIA. The Learned Counsel eventually sums up: the notion that you have erred is simply wrong, your honor.  Don’t reconsider your order.  You wrote what you meant; the question now is whether you meant what you wrote. In reply, Martins says first that RDI information had been furnished to defense counsel long ago, without Judge Pohl's prompting---including materials regarding Al-Nashiri’s abuse.  It didn't take any judicial courage or arrogant behavior by the prosecution.  The idea that defense counsel has a monopoly on what’s arrogant, and what’s courageous, would be offensive---if it weren’t so wrong.  How? For one, Kammen incorrectly suggests that the mere possession of a clearance entitles him and his colleagues to review any and all classified material; the rule, instead, calls for not merely for a clearance but also for a “need to know.”  The idea is to protect sources and methods, and the defense doesn’t always get to say who has the requisite need. Then there’s Kammen’s argument that summaries or substitutions can’t ever be adequate---which contradicts the Fourth Circuit’s decision in Moussaoui.  That case instead calls, again, for an iterative process of discovery, whereby summaries can be honed over time, in light of the totality of the circumstances; and the prosecution can move for reconsideration, when appropriate. Lastly, Martins tackles Kammen’s wonderment, regarding the defense’s ability to show and discuss certain discovery with Al-Nashiri---well, that’s been the regime for some time now.  Its hardly mind-boggling, as Kammen sees it.  Martins sits. Surreply follows from Kammen who once more says all this is old hat: we argued the insufficiency of prosecution summaries back in February, he says.  Been there, done that; the prosecution doesn’t get another bite at the apple, particularly when it hasn’t complied with procedural rules. The lawyer then mentions individuals described by CIA lawyer John Rizzo, in his book----who apparently witnessed Al-Nashiri’s waterboarding session and vomited in response.  Well, he argues, we need to discover such information, and we can’t wait for some sluggish declassification by the executive branch, either.  (Kammen also notes the prosecution’s willingness to delay proceedings, pending declassification---a principle to which he’ll hold the government later, when it seeks to speed up pretrial hearings.)  A final point: the prosecution is flatly wrong in suggesting that the rules have long permitted the discussion of select classified materials with the accused.  Kammen recalls the example seemingly underlying Martins’s claim in this regard---but, he says, it involved unclassified, not classified material. And again, is Al-Nashiri going to sign a non-disclosure agreement? Its absurd. The Learned Counsel soon finishes, leaving the balance of argument on the motion to tomorrow’s closed session---which, obviously, we won’t cover. We stand in recess.

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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