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9/11 Military Commission Motions Hearing Preview

Benjamin Wittes, Wells Bennett
Tuesday, August 21, 2012, 3:07 PM
The motions hearing that begins tomorrow in the 9/11 military commissions case is far too sprawling to preview motion by motion. Instead, we've broken it up thematically. Nearly all of the 25 motions on which Military Judge James Pohl will hear arguments fall into one of three categories. There are, first, a series of threshold challenges to the case itself or to the military commissions system more broadly. There are, second, challenges to the handling of the national security secrets and other sensitive information, especially information related to detainee treatment and interrogation.

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The motions hearing that begins tomorrow in the 9/11 military commissions case is far too sprawling to preview motion by motion. Instead, we've broken it up thematically. Nearly all of the 25 motions on which Military Judge James Pohl will hear arguments fall into one of three categories. There are, first, a series of threshold challenges to the case itself or to the military commissions system more broadly. There are, second, challenges to the handling of the national security secrets and other sensitive information, especially information related to detainee treatment and interrogation. And there are, third, a variety of procedural matters. Let's consider each in turn.

Threshold Questions

The defense in military commissions has a set of arguments it does not realistically get to make in federal court trials: that the tribunal is not legitimate and inherently disfavors the defense. No sane defense lawyer walks into a U.S. District Court in the United States and argues that the indictment should be dismissed because the entire fabric of the justice system is rigged against his client. But in military commissions, this idea pervades a goodly number of defense motions. This week, Judge Pohl will hear two dismissal motions---a motion to dismiss for defective referral, and a motion to dismiss for unlawful command influence—along with a defense motion that would presumptively apply the Constitution to military commission proceedings. A defense win on either of the first two motions would be a game changer: the case would go away entirely, or alternatively, with respect to the defective referral motion only, perhaps be returned to the Convening Authority. In the case of the defense’s motion to apply the Constitution, it would transform the case into an extended contest over how exactly the Bill of Rights applies at Guantanamo. The military commissions system has so far avoided a definitive ruling on the question of whether, and how, the Constitution regulates the conduct of military commissions held at an overseas facility where the Supreme Court has applied the Suspension Clause, though appeals court precedent does not favor the defense’s motion here. Regarding the Constitution, the government characterizes the defense’s claims as overbroad and unripe: one doesn’t generally litigate the application of entire constitutions, especially not in the abstract. Instead, the usual practice is for courts to interpret this or that constitutional provision, and in the context of discrete factual disputes. Prosecutors cite Boumediene for this last principle; the case dealt with the Suspension Clause’s application to Guantanamo habeas petitioners only. The government also adds that, in any case, the Court of Military Commission Review already has rejected the Fifth Amendment’s application to military commission defendants---a conclusion that cannot be squared with the defense’s assumption that the entire Constitution could apply to commission cases. The motions to dismiss face long odds, too. Regarding defective referral, defense lawyers say they were pervasively deprived of the resources they needed in order to present mitigation and other evidence to Convening Authority officials---who then advised the Convening Authority to refer capital charges against KSM and his codefendants. The gist of the defense’s claim is that with proper resources, the referral might have turned out differently.  Prosecutors respond that alleged errors in referral advice are not jurisdictional in nature, and thus do not usually call for dismissal; that the Convening Authority is under no requirement to consider initial mitigation evidence; and that, in any case, it is difficult to see how the defense could be prejudiced by a capital referral, given the extraordinary allegations against the accused. Even if the defense could have presented additional proof to the Convening Authority, it seems likely that the case would have been referred as a capital one. With respect to unlawful influence, the defense argues that:
Political leadership in the United States---beginning with the Commander in Chief and appointed officials speaking on his behalf as well as influential elected politicians---through their public comments that are both prejudicial and inflammatory, have irrevocably tainted and unlawfully influenced every aspect of this case by amassing such unmovable public hostility towards the co-accused that any objective, disinterested person would harbor a significant doubt that they can receive a fair trial by military commission.
The government in response sharply distinguishes between extrajudicial statements by executive and legislative branch personnel about the 9/11 plotters, and actual, direct attempts to influence the decisions of the Convening Authority or the votes of commission panel members. The defense filing, the prosecution argues, is heavy on the former and far lighter on---maybe even free from---the latter. Merely because these motions are long shots does not mean they are unimportant, though.  In particular, the motion to dismiss for defective referral raises a lot of issues about the continuing burdens on commission defense counsel---take, for example, some allegedly-still-unresolved security clearance applications for certain defense translators, investigators, and other personnel.  If these problems still persist---the motion was filed some time ago, at the case’s inception---that would legitimately impair the defense, particularly considering the complex commission rules for handling classified information, and the prospect that JTF-GTMO could monitor attorney-client communications. The burden on the defense will no doubt figure in subsequent litigation about whether the defendants’ rights to counsel---under the MCA or the constitution---were violated during the early case’s early stages, because the defense was under-resourced. On that point, recall that during arraignment, defense counsel complained bitterly about what they saw as the tremendous burdens on their abilities to represent their clientsMajor Sterling Thomas, an attorney for 9/11 defendant Ammar al-Baluchi, went so far as to claim that he already had been precluded from effectively assisting the accused. Even if it is denied (as it almost surely will be) the defective referral motion will provide Thomas and the other defense attorneys a forum to advance that claim some more.

Classified Information Matters

If there has been any discernable leitmotif in High-Value Detainee (“HVD”) prosecutions thus far, it has been this: The prosecution wants to talk about what was done by the defendants, and the defense wants to talk about what was done to the defendants. The accused want badly to raise the issue of their abuse during interrogations abroad, especially since a lot of information about their interrogations has been officially declassified, or is otherwise known to the public. Such details may be of marginal relevance to evaluating the moral culpability of the detainees, but they certainly add force to the detainees’ attacks on government conduct with respect to them---including their trial in commissions that in previous incarnations might have admitted evidence acquired by coercion. It is not entirely clear how the defense means to use testimony about the defendants’ mistreatment. The goal may be to seek dismissal based upon outrageous conduct by the prosecution. It may be to establish an argument in mitigation---to suggest that, having been tortured once during interrogation, the defendants should receive sentences lesser than death. Or it may be more of an effort to raise the costs to the government of the prosecution and to put the government on trial in the trial it means to hold. Because the government really does not want any open discussion of detainee treatment.  Its position is that only some---and certainly not all---of the facts regarding the United States’ rendition, detention, and interrogation (“RDI”) program have been declassified. Thus, any remark by a high-value detainee, whether made in open court or in a private chat with counsel, could contain a little or even a lot of highly sensitive material. It might even consist only of such material. As we cannot know what an accused will say in court in advance, prosecutors insist that all detainee pronouncements must be deemed presumptively classified and withheld from the public, if only for so long as needed to establish whether, in fact, the utterance implicates classified material in the first place. Defense lawyers rejoin that this is simply one more means of blocking transparency, of keeping the government’s conceded misconduct away from public view. This has been the pattern, at any rate. And it will be very much will be on display in arguments this week---on, for example, the government’s motion to protect against disclosure of national security information, the defense’s motion to end presumptive classification, the ACLU’s motion for public access to proceedings and records, and the defense’s motion to compel CIA interrogation chief Jose Rodriguez to testify. This last filing is not especially clear about why Rodriguez’s testimony is necessary, though it’s not hard to guess why the defense wants to hear from him. The defense likely wants Rodriguez to recount, as he did in his highly controversial book, which was cleared for release, the harsh interrogation methods employed during several detainee interrogations---particularly that of Khalid Sheikh Mohammed. In this way, the defense might cast doubt on the government’s claims about the ongoing secrecy of certain RDI information. Moreover, the defense might wish to highlight the contrast between the agency’s willingness to allow Rodriguez to speak about these matters and the gag it has placed on the subjects of the techniques---and their lawyers. What’s going on in these motions?  In short, the government proposes to treat all detainee statements---regardless of when, where, or to whom made---as “presumptively classified,” pending the completion of a classification review. That can impose serious, burdensome restrictions on defense counsel; for example, while presumptively classified, even the most innocuous information cannot be discussed in public, or with persons lacking security clearances or the requisite “need to know.” The broadcast of the audio feed from the Guantanamo courtroom also has a forty-second delay, enabling officials to prevent observers from hearing any classified utterances made during courtroom sessions. If an in-court statement later is found not to contain classified material, then the statement must be included in a public transcript of the proceedings---which is typically made available on the same day as the argument session. Classified statements obviously are not released to the public, but remain a part of the case record during trial and on appeal. The forgoing approach has become standard fare for the military commissions. It has also been employed in other commission cases, including, recently, the Al Nashiri prosecution---over which Judge Pohl also presides. The repeated use of these methods to manage secrets, and the fact that Judge Pohl seems at least not to object to them, could make it tough sledding for the defense and the ACLU alike. Perhaps the strongest argument advanced by the ACLU and the defense is a moral one: There’s something very creepy about forcing detainees to undergo coercive interrogations and then, on the other hand, citing national security as a reason to preclude the detainees from speaking publicly about those interrogations during their trials. The trouble is that neither the defense nor the ACLU seems to put forward an alternative that might address the government’s concerns about still-classified material. And the ACLU, for its part, also doesn’t fully explain why a forty-second audio delay, coupled with a same-day transcript release, wouldn’t satisfy the rights of the press and the public to follow court proceedings. Perhaps recognizing the long odds, the defense’s presumptive classification motion says that if the court is unwilling to dispense with presumptive classification altogether, then the court should allow independent officials to reviewing detainee statements for classified information. Again, the defense is unlikely to prevail here, but the issue offers a good forum for the defense to talk about the government’s weak spots: It wants to keep matters secret, and the matters it wants to keep secret involve very unpleasant aspects of its behavior.

Procedural Matters

There are an awful, awful lot of procedural motions on the docket, and going to eat up a huge number of hours during the argument session. We couldn’t possibly preview all of these items (Spencer Ackerman would go into cardiac arrest if we tried). Here, however, is a quick teaser---two disputes between the prosecution and the defense that typify the back-and-forth we can expect to see. Because the clothes make the man, the litigants are, of course, fighting over the defendants’ sartorial choices. No, there really isn’t more to this than it appears on the surface. The defendants have a qualified right to dress in the clothes of their choosing---the qualification stemming in part from the court’s own duty, under commission procedures, to ensure good order and decorum. The defendants have made their choices and JTF-GTMO has prevented them. So expect the court to rule on whether this or that clothing choice---to wear camouflage or to wear an orange jumpsuit, for example—could make for a less than orderly or decorous proceeding. By contrast, prosecutors have worried, in their filing, about the defendants’ apparent intention to suggest to the commission that, by dressing in camouflage or similarly warriorish attire, they are legitimate combatants in a legitimate war against the United States. There is a serious overtone here, as the personal jurisdiction of the military commission extends only to illegitimate combatants under the laws of war, or alien unprivileged enemy belligerents, in the words of the MCA. And the defendants no doubt want their supporters to see them as legitimate fighters in an epic struggle. But the dispute seems nonetheless a bit goofy. There are more important procedural questions too---for example, whether the defendants have to be present at all phases of the trial. The government’s position is that, because “death is different,” the accused must attend commission sessions, unless he shows good cause to be absent. The government takes this view even though no “good cause” requirement appears in the text of the relevant military commission rule. (A reference to that requirement instead appears in official commentary to the rule.) The defense argues in response that the rule’s plain language as controlling.  Such language seemingly would allow an accused to absent himself, provided he does so voluntarily and in full knowledge of the potential consequences that might result from missing pretrial session.  Both parties also refer to past episodes that support their respective views of mandatory attendance.  The prosecution notes that, during their first military commission prosecution, 9/11 accused refused to come to court on certain occasions---and thus caused disruption and delay. But defense lawyers counter that JTF-GTMO often forcibly extracts unwilling accused from their cells, in a procedure that overrides the defendant’s wishes and can be physically dangerous. According to lawyers for Walid bin Attash, a U.S. serviceman took part in a staged forcible extraction at Guantanamo, by playing the part of a reluctant detainee; the serviceman suffered severe brain injury, and still experiences seizures. Other procedural motions to be argued include:
  • Defense requests for more resources;
  • A government request for Judge Pohl to look into an alleged conflict of interest on the part of one of the defense lawyers;
  • Various motions to compel the witnesses and to compel the production of discovery;
  • More wrangling over privileged communications; and
  • Motions regarding the production of transcripts for in-chambers conferences and regarding the terms of public access to the CCTV transmissions from Guantanamo.
Stay tuned. It’s going to be a marathon ride.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
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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