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

5/30 Morning Sessions: “Random” Redactions and Mail to Nowhere

Clara Spera
Thursday, June 2, 2016, 9:55 AM

Session One

Published by The Lawfare Institute
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Session One

After a brief hiatus, the 9/11 military commissions kicked back in action on Memorial Day. Three back-to-back sessions were held on Monday, May 30th, with the usual suspects back before the Hon. Colonel Pohl. For the United States, Clay Trivett, Robert Swann, Edward Ryan and Major Christopher of the U.S. Air Force were all present. Mr. Trivett also introduced two FBI agents—Kim Walsh and Patrick O’Malley—but Col. Pohl was only concerned with the attorneys present. For defense, the plethora of lawyers representing the five accused were: Major Poteet, Mr. Sowards, Ms, Leboeuf, Mr. Nevin, Ms. Bormann, Major Seeger, Michael Schwartz., Mr. Harrington, Major Wichner, Mr. Connell, Lieutenant Colonel Thomas, Mr. Ruiz, Ms. Lachelier, Lieutenant Williams, Lieutenant Colonel Gleason. All of the accused were present and Col. Pohl reminded them of their right to be present and their ability to request to be absent.

The morning pre-trial session dealt primarily with housekeeping issues, with a strong focus on the government’s heavy hand in redacting documents. Earlier in the proceeding, however, there was a brief colloquy between Col. Pohl and Mr. Bin’Attash, in which the accused confirmed that he wanted Mr. Schwartz to be excused as his defense counsel. The government took no issue with this request, but Ms. Bormann wasn’t so sure: briefing on the issue is due later in the month. Mr. Bin’Attash interjected just as the court was prepared to move on to another issue, explaining that in 2013 there was an attorney assigned to his case and he asked that he be removed. There was no objection then, and he doesn’t understand why this situation should be any different. The judge thanked him for his contribution and moved on to the issue that took up the rest of the session: redactions.

Several defense lawyers—with Mr. Connell taking the lead on the issue—expressed frustration with what they interpret as overly-cautious, unnecessary, and at times random redactions in the materials provided by the government. Edward Ryan defended the government’s practice, explaining that there is an enormous number of documents that are simply irrelevant to the case at hand: for example, interviews conducted near Ground Zero in the days immediately following 9/11 with a barely tenuously link to the case. In a particularly crisp exchange, Col. Pohl asked who was making the determinations of whether documents were irrelevant or not: “Is it an attorney or is it – or a paralegal?” (One imagines a collective gasp in the courtroom.) Mr. Ryan demurred, responding that it’s “typically” an attorney and that he could not unequivocally say that it is “always” an attorney making the determination. Col. Pohl, seemingly offering trial counsel a helping hand, pressed on, and asked if perhaps the attorney “does a review, maybe not the initial redaction, but will review the redaction before it’s redacted?” Mr. Ryan seized the opportunity: “I’m good with that.”

The defense wasn’t buying it. Mr. Connell described lengthy back-and-forth between his team and the government to try to make sense of what had been redacted and why, with, he insisted, little cooperation from the government. He acknowledged that the principles the government articulated in its defense of their redaction practiced made sense in the abstract—they were “technically valuable”—but not pertinent because the government was not actually doing what Mr. Ryan described. Instead, Mr. Connell suggested, the government had removed important administrative information from documents that would allow the defense teams to make sense of other documents: serial numbers from some documents were removed so as to make it impossible to understand if and how those documents related to other documents that were turned over. In some cases, page numbers were inexplicably scrambled, making the defense’s task of even organizing some records more cumbersome. More troubling, Mr. Connell continued, was the redaction of key medical records of his client—al Baluchi—which would shed light on his mental state that would be key to his defense. In a not-so-thinly veiled insult, Mr. Connell noted that “if we were in a civil case, there would probably be some consequences for [this type of behavior], but [we’re] not. . . .” Ultimately, Mr. Connell concluded "this is not the way that discovery is supposed to work.” Col. Pohl said he would “revisit” the issue in a classified session.

Next up, a brief dialogue between Mr. Nevin and Col. Pohl, in which Mr. Mohammed’s defense lawyer motioned for his client to be present at the M.C.R.E. 505(h) hearing and if the court engaged in a closed session under M.C.R.E. 806. Col. Pohl denied the request for the 505(h) hearing and reserved ruling on the second issue for a later time.

Mr. Ruiz was up next. Before moving on to bolster Mr. Connell’s earlier arguments about the difficulties of discovery in the case, Ruiz noted that the “chow hall” had limited hours because of the holiday—he just wanted to note that for the judge to do with that what he wanted with the information, though the limited hours would not affect him “personally.” Presumably he brought his own lunch. The meat of Mr. Ruiz’s argument, however, was regarding a motion for a continuance on behalf of his client, Mr. al Hawsawi, stemming from a communication from the government in early April that the defense needed an “additional compensatory control measure” in order to access certain information. Despite that message, Mr. Ruiz and his team had not been able to obtain that required additional clearance and were therefore unable to access the potentially critical defense information. Ms. Bormann later added that Mr. Bin’Attash’s defense team was in “exactly the same situation.” Ultimately, the defense counsel stood for the proposition that until the additional clearance was sorted, they are “not in a position to provide . . . adequate representation by making those reasoned legal decision that [they] need to make in the context of the litigation that is moving forward next week.” The entire process was described—by both Mr. Ruiz and Ms. Bormann—as a “black hole.”

Seemingly nonplussed with the situation, Col. Pohl denied the continuance but, exasperated, wondered why there was such a “loss of priority” of the case and related administrative hurdles it necessitates with the government, or, as he called it “the big G.”

Session Two

Col. Pohl kicked off the late morning’s pre-trial session just shy of 11:00 AM, and not without noticing that one of the trial counsel’s paralegals was no longer present. Given Mr. Schwartz’s worries regarding the safety and “habitability” of Camp Justice articulated just moments later, maybe it’s no surprise that paralegals are trying to get out of there. According to Mr. Schwartz, there has not been sufficient testing of toxins that are potentially present at Camp Justice, a fact which poses serious problems to the suitability of the venue for the proceedings. Col. Pohl, apparently unmoved, will “think about” the defense’s motion to get an independent expert to verify the safety of the premise.

Next, the topic of discussion was the screening process of detainee mail. The defense provided an apparently invaluable diagram to the court, which we are unable to reproduce here but it presumably diagramed the different steps of getting communication from defendants to counsel, and vice-versa, and what kind of screening process those communications go through before reaching their intended recipients. The crux of the issue surrounds the question of legal v. non-legal communications: the latter, the government argued, should be subject to the screening policy and, further, according to the government, a lot more communication falls into the latter category than the defense maintains. The government sought clarification from Col. Pohl on both the distinction of processes that legal and non-legal mail are subject to and what constitutes non-legal mail because, even though it was “crystal clear” to the government, it did not appear to be so obvious to defense counsel.

Much of the discussion defining “non-legal” mail had to do with whether or not it is intended for third parties: the government’s position, as clarified by Col. Pohl, was essentially that “any detainee mail that the defense intends to send to third parties [like NGOs, the media] be treated as non-legal mail subject” to the screening procedures, while the defense maintained that such a sharp divide isn’t legally coherent. According to Mr. Connell, there is a key distinction between “attorney-client privilege and work-product privilege” that plays an important role in the non-legal v. legal communications distinction. Work-product privilege is “far more robust” than attorney-client privilege, and there are “certainly” third parties to whom the defense could disclose information without that information losing its confidentiality. At this point, there was a lot of pointing to the defense counsel’s chart and other well-crafted slides, unavailable to us here. There was a fair amount of back-and-forth between Mr. Connell and Col. Pohl on what exactly the defense’s position was with respect to defining non-legal mail, which included this light-hearted exchange:

Col. Pohl: Okay. So under the scenario we talked about earlier, where a piece of paper was intended to go to be published in the press, okay, waiving any privilege, let’s say ab initio, that was your plan.

Mr. Connell: I’m with you. I’m with you. You’re skipping over a lot of nuance, but I get the point.

Col. Pohl: I’m not a very nuanced guy . . .

Further, Mr. Connell added another wrinkle to the debacle, arguing that designating correspondence as non-legal actually prevents it from being sent in the first place: “information goes to die” with that procedure. To illustrate, Mr. Connell told the commission of how his client, Mr. al Baluchi, tried to send a postcard to a “postal historian” who collects mail sent from detention centers around the world. The historian “just wanted the stamp” from Guantanamo Bay. The postcard never left the facility because, according to Mr. Connell, “non-legal mail [doesn’t go] anywhere.” So, by designating certain mail non-legal, not only does the government suspend confidentiality and privilege associated with that correspondence, but the correspondence itself might end up being completely obstructed. Once Mr. Connell was done setting forth his arguments on the issue, Col. Pohl ended the session, noting that the commission would reconvene at 1400.

Clara Spera is a 3L at Harvard Law School. She previously worked as a national security research intern at the Brookings Institution. She graduated with an M.Phil from the University of Cambridge in 2014, and with a B.A. from the University of Chicago in 2012.

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