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Last Week at the Military Commissions: Long Days for the 9/11 Case

Michelle Ritter, Sarah Grant, Scott R. Anderson
Friday, November 23, 2018, 6:11 PM

Over the week of Nov. 12, the military commission in United States v. Khalid Sheikh Mohammed picked up pretrial proceedings from its September sitting. The newly presiding military judge, Col.

Published by The Lawfare Institute
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Over the week of Nov. 12, the military commission in United States v. Khalid Sheikh Mohammed picked up pretrial proceedings from its September sitting. The newly presiding military judge, Col. Keith Parrella, held extended proceedings over five days, where the parties argued a variety of motions and heard testimony from several witnesses on topics ranging from the admissibility of evidence regarding the CIA’s covert Rendition, Detention and Interrogation (RDI) program to allegations that senior Defense Department officials had attempted to wield unlawful influence over the proceedings by removing the former convening authority for the military commissions, Harvey Rishikof, this past February.

The following summary breaks down the week’s developments day-by-day.

Monday, Nov. 12

Judge Parrella kicked off proceedings on Nov. 12 by recapping several conferences in which the parties discussed the schedule for the upcoming session, the status of a number of pending motions and a number of administrative concerns. Most significantly, the defense teams’ workspaces on base were covered in mold as a result of an air conditioning malfunction, and consequently they could not access their materials. The court was able to find the teams alternative workspace and reprint their materials, so proceedings could continue mostly as scheduled, with some modifications to the order of issues taken up.

Before turning to the motions on the docket, Walter Ruiz, representing Mustafa al Hawsawi, reiterated al Hawsawi’s objection to Judge Parrella presiding over the case, given the judge’s previous interactions with the Justice Department and one of the prosecutors, Jeffrey Groharing. The judge said he expected to issue his ruling on the matter soon. Ruiz responded that he expected the motion to be denied and accordingly planned to appeal the decision and ask Judge Parrella to abate proceedings until a higher court could review.

The parties then took up the first motion of the day, AE 568, a defense motion to compel discovery of business records and all communications “involved in soliciting and obtaining business records and certifying business record declarations from the government of the United Arab Emirates, which the prosecution plans on using in their case….” The defense learned about the requested communications in an earlier session, when an FBI special agent testified about business records obtained from the UAE that were pertinent to the issue of defendants’ involvement in 9/11 attack planning and the commission’s personal jurisdiction over the defendants. The defense teams received some administrative notes from the FBI in response to a previous request, but sought additional information, which they viewed as material to their preparation for trial, about the manner in which the business records were obtained and certified.

Clayton Trivett responded for the prosecution, arguing that the government had already provided more documentation to the defense than they were legally obligated to and did not possess the sorts of communication records the defense sought. The government did intend to turn over additional FBI administrative notes, but did not have contact information for the individuals in the UAE who certified the business records. Trivett also argued the business records the government intended to use as evidence were self-authenticating and there was therefore no need to dig further into how they were produced and certified by banks and other entities in the UAE.

James Connell, learned counsel for Ammar al Baluchi, disagreed and said that the military rules of evidence establish as a “precondition to admissibility [of a document] that all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy.” Just because the government considered the UAE business records to be “self-authenticating” did not mean that the defense was not entitled to independently investigate the records and challenge their validity.

Second, the parties addressed AE 579, a motion to dismiss for unlawful influence by CIA Director Gina Haspel. Rita Radostitz argued the motion on behalf of Khalid Shaikh Mohammed and said that actions the CIA has taken while proceedings are ongoing, particularly its decision to impose severe restrictions on the defense teams’ access to relevant witnesses, amounted to “improper manipulation of the process” which influenced how defense counsel prepared for the case. The defense therefore sought to question Haspel about the classification guidance and the motivation behind its implementation. Alka Pradhan, one of al Baluchi’s attorneys, echoed Radostitz’s comments, noting that Haspel was a senior official at the CIA while the Rendition, Detention and Interrogation (RDI) program was active and more recently commented on the guilt of the 9/11 defendants during her Senate confirmation hearing. Haspel’s participation in the government’s “systematic pattern of undermining the presumption of innocence for these defendants” constituted unlawful influence, Pradhan argued, and the defendants could not receive a fair trial under such circumstances.

Prosecutor Robert Swann denied that what Haspel said in her confirmation hearing amounted to unlawful influence, arguing that Haspel is not an original classification authority in the case and therefore played no part in the decision to limit the defense team’s ability to independently investigate and contact CIA witnesses. Accordingly, there was no basis for the defense’s motion to dismiss the charges nor for the defense’s request to have Haspel testify.

Next, the court turned to AE 534, a classified motion to compel production of documents related to the RDI program, specifically statements obtained from interrogators, summaries of interrogations, and the interrogators’ reports, logs, and notes of interrogations. Pradhan asserted that these documents were critical to the defense as they enabled al Baluchi’s team to develop a “detailed chronology of where he was, who was in the room with him, what he was being asked, and what his conditions of confinement were.” Some information previously provided by the government, Pradhan said, was “incorrect or misleading” and the defense teams therefore needed additional documentation and witness testimony in order to build an accurate picture of what happened to the defendants while they were in CIA custody. Lt. Col. Derek Poteet, representing Mohammed, stated his team’s support for the motion. Cheryl Bormann, attorney for Walid bin Attash, asked to defer her argument until a later date: her notes were inaccessible due to the mold problem.

Groharing responded for the prosecution, saying that the government had never intentionally misled the defense and that the previous judge in the case, Col. James Pohl, repeatedly approved of the government’s withholding of certain information due to security classification. The government fully complied with its discovery obligations and the witnesses the defense sought were not actually relevant to the defense’s case. Groharing did acknowledge, however, that the government’s interpretation of the relevant time period—that is, when the defendants were meaningfully under CIA control—differed from the defense’s interpretation. This discrepancy could account for the gaps in discovery that the defense identified. Any errors or omissions in the materials provided to the defense teams, Groharing said, were purely accidental and the defense should have raised the issue with the government rather than asking the court to compel further unwarranted production.

In reply, Poteet reminded Judge Parrella that “it is the first and foremost duty of the defense to investigate, to conduct investigation. And statements that, “Well, there might be some inaccuracies, but it really doesn’t amount to much,” statements such as that suggest that there is a failure to appreciate the gravity of this exchange of information that happens in the discovery process.”

The court then moved on to AE 561, a classified motion to compel information regarding non-CIA requests for black site interrogation. The defense specifically seeks information about the “channel of communication between the FBI and black sites for requesting intelligence requirements or particular questions to be asked of the prisoners there.” Prosecutor Edward Ryan said the government planned to continue turning over additional discovery on the matter to the defense, so Connell asked to postpone further discussion of the matter until the defense could review the additional material and determine if its request had been fully satisfied.

Finally, the parties discussed AE 562, a classified motion to compel documents regarding interrogation personnel who worked at the CIA black sites at which the defendants were detained before being transferred to Guantanamo. The government previously provided profiles of 64 individuals whom it identified as having had direct and substantial contacts with the defendants, and now the defense was seeking the documents that the government relied on in forming those profiles. These documents were critical to the defense, Pradhan explained, because the individuals “had the ability to marry [the defendants’] statements under torture with the conditions under confinement in which [they] was being held and the procedures being administered in the administration of torture techniques and the [standard operating procedures] that would have governed the administration of both the torture techniques and the interrogations.” The defense could not rely on the profiles alone because they contained significant gaps and other errors: when the defense teams had the opportunity to interview a few of the individuals for whom they had profiles, the “witness identified large discrepancies, conflicting information or missing items material to the defense—material to their entire—the nature of their contact with the defendants...”

“It would be an abdication of duty in a capital trial,” the defense argued, “for us to accept the information contained in these without being able to reverify or repudiate this information. And if we can’t do it through interviews with every single witness, the only way to do it is through comparison with the original source documents that the government refused to produce.”

The government pushed back and said that the government went beyond its discovery obligation when it provided the summary profiles to the defense; Judge Pohl had found their obligation completed when they provided an index of the individuals and relevant materials. The prosecution was not required to synthesize for the defense the information that it had already provided in other forms, and if the defense teams “don’t believe they are helpful, they are not obligated to use them in any way.” Any gaps the defense identified in the summaries were likely due to classification restrictions—which Judge Pohl approved—or a determination by the government that an individual did not have have direct and substantial contact with the accused and could not provide information that was relevant and material to the defense.

Judge Parrella gave the defense the final word on the matter, and Pradhan stressed that the government “sidestepped the large issue[s], which are those of the missing personnel, those of the discrepancies between the witness interviews and what is in those profiles, and the issue of the RDI definition, the issue of the determinations the government made that excised enormous amounts of relevant and material information from what they were supposed to provide to the defense two years ago.”

With that, Judge Parrella adjourned the commission for the day.

Tuesday, Nov. 13

On Tuesday, Nov. 13, the commission heard several hours of testimony from William Castle, the principal deputy general counsel for the Defense Department, regarding his role in Defense Secretary James Mattis’s Feb. 2018 decision to remove Harvey Rishikof from his role as convening authority of the military commissions—as well as Castle’s own simultaneous removal of Rishikof’s legal adviser, Gary Brown. Defense counsel have argued that Rishikof and Brown were removed by Defense Department officials who opposed their effort to negotiate pre-trial agreements with the 9/11 defendants that would have spared them the death penalty. As a result, defense counsel have motioned (in the AE 555 series) to dismiss the charges against the defendants on grounds of unlawful influence.

Prior to calling Castle to the stand, David Nevin, the learned defense counsel for Khalid Shaikh Mohammed, inquired whether Judge Parrella had ruled on motion AE 555GG, which asked for a ruling on whether the defense had crossed the “some evidence” threshold regarding unlawful influence and thereby shifted the burden to the government to disprove beyond a reasonable doubt. The judge confirmed that he had not, and was simply calling Castle as a witness.

James Connell, representing al Baluchi, led the direct examination of Castle. Pursuant to Connell’s questioning, Castle testified that he served as acting general counsel from Aug. 27, 2017, through February 2018. During this time, two deputy general counsels—Bob Easton and then his replacement Ryan Newman—were the conduit for information from the Office of the Chief Prosecutor and gave supervisory officials there their performance ratings. (Castle testified that they were not “giving instructions” to that that office.) Michael Vozzo, meanwhile, a deputy associate counsel, served as the Office of General Counsel’s (OGC) day-to-day liaison with the Office of the Chief Prosecutor for the military commissions. Castle stated that he understood that there were frequent communications between the convening authority and his office, but that he did not recall being briefed on the specifics of most of those conversations.

Connell’s initial line of questioning contrasted Castle’s refusal to submit to an interview with defense counsel with the several meetings Castle held with members of the Office of the Chief Prosecutor and associated federal prosecutors in preparation for his testimony. From there, Connell focused on the events leading up to Rishikof’s removal. In particular, he focused on points in possible tension with the declarations that Castle and Mattis had provided at the commission’s request outlining the basis for Rishikof’s removal in March 2018. Castle testified that both declarations were primarily drafted by Chris Jenks, a law professor installed in OGC as a special advisor, with input from a team of OGC attorneys including Newman, Vozzo, Jason Foster, Jerry Dziecichowicz and Karen Hecker, as well as Castle’s military aides, Col. Tomatz and Lt. Col. Robert Guillen.

Castle testified that his staff did not have a positive view of Rishikof and raised concerns about him shortly after Castle assumed office. Specifically, Castle described knowledge of one incident in which Rishikof attempted to board a military flight to Guantanamo Bay without authorization and another in which he reportedly tried to force military judges and personnel to use the same fast boats for transport to and from the military commission facility. He also was informed of Rishikof and Brown’s desire to realign Defense Department resources and organizations so as to consolidate various activities relevant to the military commissions under the office of the convening authority. Finally, Castle indicated that he had heard that Rishikof and Brown were exploring possible pre-trial agreements with the 9/11 defendants but had strived to avoid any involvement for fear of unlawful influence concerns, going so far as to “literally wav[e] [his] arms like a chicken” and object whenever Rishikof tried to raise the issue.

Connell’s questioning proceeded to lead Castle through the chronology leading up to Rishikof and Brown’s removals. Castle testified that he first met with Rishikof and Brown in Sept. 2017 at their request. Then in Oct. 2017, he was called into Mattis’s office for an unexpected conference call with then-Attorney General Jeff Sessions, who said something to the effect of, “No deal.” Castle indicated that he was not certain at the time what Sessions meant but nonetheless responded, “No deal.” Only upon returning to his office and consulting with his staff did Castle realize that Sessions had most likely been referencing pre-trial negotiations with the 9/11 military commission defendants.

Castle testified that he felt blindsided by the fact that Rishikof had brought the negotiations to the Justice Department without prior authorization. He convened a meeting in mid-Oct. 2017 where he confronted Rishikof and Brown and underscored the importance of making sure “our ships are heading in the same direction.” That said, when Castle asked who had authorized Rishikof to approach the Justice Department, Rishikof replied that he had received authorization from Deputy Defense Secretary Patrick Shanahan, a fact Castle later confirmed in a separate conversation. Once he learned that Shanahan had in fact authorized Rishikof’s actions, Castle “dropped . . .any thought of . . . terminating Mr. Rishikof because of what had happened with the [Attorney General] call.” Indeed, Castle indicated that he in fact authorized a follow-on meeting so that Rishikof could discuss his three proposed courses of action (“COAs”)—reaching plea agreements, centralizing authority in the convening authority, or maintaining the status quo—with Shanahan.

Connell asked Castle when he began again to consider removing Rishikof. Castle responded that it was around Thanksgiving. Connell then presented Castle with a Dec. 15, 2017, information memorandum Castle had conveyed to the defense secretary outlining several proposals relating to the military commissions. As Connell highlighted, the first recommendation was to replace Rishikof with James McPherson, the general counsel for the U.S. Department of the Army. Connell noted that Castle’s March 2018 declaration omitted any discussion of the Dec. 15 memorandum. When asked why, Castle responded that he subsequently rescinded the recommendation that Rishikof be fired and put forward a separate recommendation on different grounds. Hence, he did not feel this memorandum warranted mention.

Around this time, Castle noted, Rishikof provided Shanahan with a 65-page memorandum outlining his COAs—a document that Castle referred to as the “King Me” memorandum. Castle objected to Rishikof’s decision to provide this memorandum directly to the deputy secretary without giving OGC or other Defense Department components affected by the proposed changes an opportunity to review and comment in advance. He further elaborated that he believed the convening authority was supposed to only pass information to the deputy secretary through OGC, not directly, based on a 2015 memorandum. In subsequent testimony, Castle confirmed that he did not have independent knowledge of this memorandum, but had been informed of its directions by his staff.

Connell proceeded to ask Castle about another memorandum to the defense secretary dated Jan. 12, 2018. It also recommended Rishikof’s removal but put forward Jim Coyne, general counsel for the Defense Logistics Agency, as a replacement. When asked about this change, Castle indicated that he had discussed the call with Sessions and concerns regarding pre-trial agreements with McPherson. Later, however, Castle grew concerned that these conversations with McPherson might trigger unlawful influence concerns if McPherson were to take the position and, following an additional search by his staff, decided to supported Coyne instead.

Castle further testified that he “pulled down” the Jan. 12 memorandum shortly thereafter due to similar unlawful influence concerns, effectively signaling, in his view, that he no longer clearly supported the recommendations contained in the memorandum. Castle then tasked Chris Jenks, a law professor temporarily serving a senior advisor to Castle, to lead a “group of experts” to advise on how to best address the situation with Rishikof while avoiding unlawful influence concerns. After consulting with several senior military judges, Jenks authored a memorandum (dated Jan. 26, 2018) advising that Castle should emphasize non-consideration of Rishikof’s “judicial or quasi-judicial acts,” as well as Rishikof’s at-will employment status, in recommending to Mattis that he be removed. Jenks’s memorandum also acknowledged concerns that Rishikof was engaging in discussions regarding pre-trial agreements

Questioning then turned to the final Jan. 29, 2018, action memorandum from Castle to Mattis, which implemented Jenks’s recommendations and once again urged Rishikof’s removal. This was the memorandum on which Mattis appears to have ultimately relied in removing Rishikof, which primarily justified Rishikof’s removal on grounds of the need to pursue “a more cohesive effort by the Department of Defense in military commissions,” with little elaboration. Castle testified that he also briefed Shanahan and Mattis’s chief of staff in-person on the three complaints that he and Mattis had emphasized in their March declarations: Rishikof’s “King Me” memorandum; a telephone conversation that Rishikof had with Admiral Kurt Tidd, the Commander of U.S. Southern Command, in which he was reportedly disrespectful; and Rishikof’s decision to procure aerial photographs of the Guantanamo Bay facility from the U.S. Coast Guard after Tidd declined to provide them. Castle repeatedly emphasized that these were the main concerns he had in mind when making this recommendation, even though there had been prior concerns and issues with Rishikof. At the in-person briefing, Mattis’s chief of staff asked for a more complete list of Rishikof’s objectionable activities, which Castle and his office provided in the form of an undated memorandum on or about Feb. 2, 2018. This memorandum listed Rishikof’s effort to host a conference on military commissions at Guantanamo Bay without proper coordination, his insistence on accompanying a congressional delegation and other grievances not included in the declarations that Mattis and Castle provided. Castle indicated that he did not verbally brief Mattis on the recommendations in that memorandum, though they did have conversations on the sidelines throughout this process that might have touched on military commission developments.

Connell then concluded his questioning by focusing on the incident with Tidd, which occurred in late Jan. 2018. Castle indicated that, based on representations from his staff, he understood at the time of the Feb. 2 memorandum that Rishikof had been rude towards Tidd and that the request for aerial imagery had not been previously coordinated within the Defense Department. He further understood that Rishikof circumvented Tidd by asking the Coast Guard to provide the photography, leading Castle to include these allegations in that memorandum. When asked whether he currently knew this account to be accurate—particularly in light of documents obtained from the government through the Freedom of Information Act and shared with Castle—Castle confirmed that he had no independent knowledge of the incident and had conducted no independent inquiry, but had instead relied on representations by his staff.

From this point, attorneys for other defendants picked up the direct examination. Nevin revisited a few of Castle’s earlier statements in order to clarify certain points, including several emphasizing Castle’s heavy reliance on his staff for his understanding of unlawful influence issues and knowledge of military commission developments. Cheryl Bormann, learned defense counsel for bin Attash, pushed this line of questioning further and went so far as to proffer—out of Castle’s hearing—that “[i]t is our position that Mr. Vozzo and maybe Mr. Easton, who were working with the prosecution, were providing incorrect information to influence this gentleman’s decision.” Jim Harrington, learned defense counsel for Ramzi Binalshibh, underscored the negative views of Rishikof held by Castle’s staff and pushed him on his decision not to raise concerns directly with Rishikof before recommending his removal. Harrington also elicited the fact that Castle had met twice with Brig. Gen. Mark Martins, the chief prosecutor of the military commissions, but had not met with Brig. Gen. John Baker, the chief defense counsel.

Prosecutor Edward Ryan then pursued a brief cross-examination seeking to emphasize certain other points in Castle’s prior testimony. He elicited Castle’s knowledge of regulations directing the convening authority to coordinate with OGC before speaking to any combatant commanders. Ryan also revisited Castle’s repeated assertions that he did not push Rishikof towards any particular position on pre-trial agreements in the 9/11 case, but instead sought to avoid any engagement on the issue due to unlawful influence concerns. Finally, he asked Castle about his views on Mattis, whom Castle stated he believed to be a savvy and informed leader of the Defense Department to whom he would hesitate to misrepresent anything. Ryan closed by asking whether Castle still believed his declaration to be accurate; Castle affirmed that he did.

Wednesday, Nov. 14

On Wednesday, Nov. 14, the commission heard argument on a number of defense motions, including a motion to dismiss for the government’s denial of a public trial, several motions to compel witnesses, a motion for family visitation rights for the defendants, and a motion to compel inspection of physical evidence.

First, James Connell, representing al Baluchi, argued AE 551, a motion to dismiss the case on the ground that the government was denying the defendants a public trial. Connell highlighted that: (1) it is difficult for members of the public, including victim family members and the media, to access judicial records, thereby impeding a critical element of actually holding a “public trial”; and (2) none of the 96 classified filings from 2017 had been redacted and released to the public as required by Regulation for Trial by Military Commission (RTMC) 17-1, and many of the unclassified pleadings were delayed in release. Connell asserted that the government’s general failure to post unclassified and redacted classified pleadings on a timely basis—within 15 business days—was grounds for dismissal. He emphasized the importance of public transparency of the commissions and asked the commission to dismiss the case, or, in the alternative, to place more pressure on the government by, for instance, forcing more resources to be allocated, declining to hold hearings on motions untimely published on the public website or imposing other sanctions for noncompliance.

Chief prosecutor Brig. Gen. Mark Martins remarked upon the lack of any authority justifying dismissal of the case or even sanctions as a remedy for temporary delays in the publication of filings and transcripts. Specifically, he noted that the RTMC “is not intended to, and does not, create any substantive right enforceable by any party.” Additionally, Martins argued that these are in fact “extraordinarily open proceedings,” pointing out that 98 percent of the proceedings are unclassified and 92 percent of filings and transcripts are published to a public website. He also disagreed with the defense’s interpretation of the RTMC as requiring documents to be reviewed and published within 15 business days of filing, when instead the RTMC requires only that documents be published no later than 15 days after classification reviewers begin their review process. Nonetheless, he agreed with the Connell that filings and orders that do not require classification review should be posted within one business day.

Next, the parties discussed AE 528F, a defense motion to compel production of John Kiriakou, former CIA counterterrorism chief, as a witness for an evidentiary hearing on AE 528, a motion to compel the government to produce phone bills seized in a 2002 raid on the Taliban embassy in Pakistan. Capt. Brian Brady, representing bin Attash, argued that despite the prosecution having produced some requested phone records to the defense, Kiriakou’s testimony would still be relevant and non-cumulative since he could speak to the contents, number, duration, and other features of the listed phone calls. In support of this claim, Brady noted that Kiriakou himself, in an interview with C-SPAN, called the phone bills “the best lead we had while [he] was in Pakistan.” Bin Attash’s attorneys intended to use Kiriakou’s testimony to contest the commission’s personal jurisdiction over bin Attash and in their mitigation case following any conviction of bin Attash. Brady maintained that the Taliban records were relevant to bin Attash’s defense, despite a prior ruling that the onset of hostilities between the United States and the Taliban was not at issue; rather, only the onset of hostilities between the United States and al Qaeda was germane.

Brady also informed the judge that bin Attash’s team delayed an interview with Kiriakou scheduled for Feb. 2018 because they were concerned, in light of the government’s Sept. 2017 guidance restricting the defense’s ability to independently pursue CIA witnesses, that they would be prosecuted or have their clearances revoked. The defense attorneys ultimately had to cancel the interview because they did not receive requested assurances from the government that they were permitted to approach Kiriakou. Subsequently, an associate general counsel for the CIA wrote to Kiriakou to warn him against disclosing classified information or discussing anything beyond the phone records the government had produced. In May 2018, Kiriakou decided against meeting with the bin Attash defense team. The government’s conduct, Brady asserted, had scared Kiriakou off and amounted to an improper interference with the defense’s ability to fully prepare for trial. Accordingly, the defense wanted the judge to compel the government to produce Kiriakou for an interview.

On behalf of the prosecution, Robert Swann argued that the phone records indicated no more than the fact that the Taliban harbored Osama Bin Laden. Swann denied both that evidence existed that other individuals or foreign governments were more culpable for the attacks, which the defense aimed to show in its mitigation case, and that the government failed to fully and adequately investigate leads arising out of the Taliban embassy raid. Swann noted that the government provided the defense not only with the phone records but with also the FBI analyses of the records, which identified additional individuals in the United States whom the FBI interviewed in the immediate aftermath of the 9/11 attacks. The prosecutor also said the government produced only four of the 168 requested phone records because the rest were irrelevant to the case and producing them would unnecessarily delay the litigation further. Swann also attacked Kiriakou’s credibility as a witness, given Kiriakou’s criminal conviction for leaking classified information to the press and lying to the FBI. On the issue of interference, Swann categorically denied any impropriety on the government’s end and said Kiriakou’s response letter to the CIA attorney undercut the defense’s position. Kiriakou wrote, “This is the first time I have heard that I agreed to be interviewed and I have never been contacted by anybody associated with this case. I decline to be interviewed, and indeed have never been contacted by anybody associated. And if any of the attorneys concerned reach out to me, I decline their request for interview. I am represented by counsel.”

The parties next turned to AE 360C, bin Attash’s motion for reconsideration of Judge Pohl’s ruling on a motion to compel discovery related to audio and video messages sent to defendants’ family members. JTF-GTMO previously refused to transmit a December 2014 video communication of bin Attash to his family in Saudi Arabia, according to the defense in violation of his international legal rights. Bin Attash’s team therefore sought additional classification guidance for sending videos to bin Attash’s family members, as part of the defense’s effort to build a mitigation case. In the motion for reconsideration, bin Attash requested all documentation pertinent to the government’s decision to prohibit transmission of the 2014 video and an explanation of why the government had changed its position multiple times on the classification status of the video and the associated transcript. At the time of the motion, the video was again under classification review despite previously being deemed unclassified. The defense said the circumstances indicated that the security classification authorities were acting arbitrarily.

Responding for the government, Maj. Christopher Dykstra agreed that there had been some processing errors in the video’s classification; however, the video was ultimately properly deemed classified. Dykstra claimed bin Attash’s team had access to both the redacted and classified, unredacted versions of the video, which it could use to determine for itself exactly what triggered classification. To this suggestion, Montross countered that making such a classification determination based on the two versions of the videos was not possible, and that the defense needed more information from the government in order to understand whether the video was withheld due to a procedural error or a classification error. The parties left further discussion of the matter for closed session.

The court then moved on to AE 350C, a motion to depose the Binalshibh team’s former interpreter. The team also requested, in AE 350O, further information regarding the former interpreter’s employment and placement on Binalshibh’s team. The motion dates back to Feb. 2015, when Binalshibh announced during proceedings that he believed his interpreter had been present at one of the CIA black sites where he was detained and interrogated. When defense attorneys interviewed the former interpreter, not under oath, on Feb. 9, 2015, the interpreter claimed he had never been employed by the CIA. This statement was refuted the following day by the government’s own filing, which confirmed that the former interpreter had been employed by the CIA. On Feb. 18, 2015, the interpreter agreed to make a formal statement under oath and penalty of perjury to members of the defense on the condition he made such statement in the office of his supervisor from his contracting company. But the supervisor then told defense investigators that he would call police if they tried to speak with the former interpreter and that any interview with the former interpreter would require an order form the military judge.

Raising the issue again to the commission, the defense sought the interpreter’s testimony in order to gain insight into any potential contacts the interpreter had with the defendants at CIA black sites, and to better understand the sequence of events that led to the placement of this interpreter on Binalshibh’s defense team. The defense contended that his testimony was necessary to shed light on whether the government was involved in any way in placing the interpreter on the defense team, and whether an intrusion into attorney-client privilege occurred, and if so, the extent of impact on defense strategy.

Prosecutor Edward Ryan criticized the defense’s arguments for being “emotional” and sought to focus the court on considering the availability of the witness as grounds for either granting or denying the defense’s motion. Under Military Commission Rule 702(a), “a deposition may be ordered whenever, after swearing of charges, due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at a military commission.” Judge Pohl previously established a high bar for compelling deposition testimony on the basis of unavailability, and citing this precedent, the government claimed the defense failed to make the case for deposing the interpreter. Additionally, the government denied that the provision of the interpreter to the defense teams was an effort by the government to infiltrate privileged attorney-client communications. The interpreter was assigned on the request of Binalshibh’s team, not because the prosecution was angling for an unfair advantage. Accordingly, Ryan urged the court to limit any further discussion of the “government plant theory.”

On rebuttal, Alka Pradhan, for al Baluchi, stressed that a deposition was warranted given the exceptional circumstances, even if live testimony would also suit the defense’s needs. David Nevin, representing Mohammed, pushed for a deposition as the most efficient way to obtain needed information from the interpreter. James Harrington, for Binalshibh, also pressed the intentional interference allegation, remarking that the FBI had previously obtained privileged information and materials from members of two defense teams. That such interference had occurred before, the defense argued, made the government’s strong denials now somewhat less credible.

The parties next took up AE 399, a defense motion to grant the defendants’ family members visitation privileges. Bin Attash’s attorney requested deferral of full oral argument on the motion, but briefly explained that the thrust of the argument is that the defendants have the right, under domestic and international law and Defense Department policy, to reasonable access to family members. The existing video communication link provided by the International Committee for the Red Cross (ICRC) was inadequate, so the court should direct the government to allow in-person visits. The detainees’ relationships with their family members, the defense argued, go to the “heart of [the defense’s] mitigation presentation”; “understanding the relationship between a defendant and his family and presenting it, if it’s strong, is a very well accepted part of what lawyers are supposed to do in capital cases.”

The prosecution, in response, denied the purported right of pretrial detainees to have visitors and said that the ICRC video program was equally effective in connecting the defendants with their families. Furthermore, the government argued that restricting the detainees’ outside contact was a legitimate penological interest and that JTF-GTMO’s denial of requests to facilitate additional external communications did not violate any identified right or adversely impact the commission’s ability to proceed.

The judge questioned the defense on what authority the commission had to order that family members be permitted to travel to the detention facility. Al Baluchi’s attorney, Benjamin Farley, conceded that the commission could not direct JTF-GTMO to facilitate visits, but could put pressure on the government by abating proceedings until the defendants had an opportunity to meaningfully communicate with family members. At this point, Parrella paused argument on AE 399, leaving further discussion for later in the week.

Finally, the court heard argument on AE 604, al Baluchi’s motion to compel inspection of physical evidence obtained by the government during overseas raids. As proffered to the court, between April 2016 and September 2018, defense attorneys for al Baluchi and Mohammed traveled repeatedly to FBI headquarters in Washington, D.C. to review extensive physical evidence obtained during overseas raids. Al Baluchi’s team alone spent roughly 800 person-hours, acquiring over 25,000 pages of copies and nearly 4,000 photographs of the evidence, which represented a review of 1,340 items out of 2,100 total items (64 percent). In Sept. 2018, however, the government eliminated defense team access to the physical evidence in FBI custody, on the grounds that this would speed progress towards trial and that defense counsel had all materials necessary for preparation of the defense. Clayton Trivett, arguing for the government, noted that the prosecution had allocated its own resources to support the defense teams’ access to the evidence, including providing FBI evidence technicians to assist.

Attorneys for al Baluchi and bin Attash claimed that eliminating such access was counterproductive and would actually impede movement towards trial because it prevented defense counsel from fulfilling their ethical obligation in a capital case to fully investigate and review all potentially relevant evidence. Furthermore, the government’s action also violated Rule for Military Commission 701, which instructs the government to permit defense counsel to examine tangible objects within the possession of the government that are either material to the preparation of the defense or intended for use by the prosecution in their case-in-chief.

Trivett responded that Rule 701 does not necessitate reviewing every single document in order to satisfy the obligations imposed on counsel; if that were the case, then “no trial counsel in the history of military justice has ever satisfied their obligations under 701.” Trivett said the defense teams already have copies of every document the prosecution intends to use, and the prosecution asked the FBI to photograph all the remaining materials so that the defense could inspect them in a more efficient manner. The government therefore believed there was no reason for the commission to grant the defense’s request and delay proceedings any further.

Thursday, Nov. 15

On Thursday, attorneys for bin Attash and al Hawsawi continued argument on AE 399, a defense motion to compel JTF-GTMO to allow contact between the defendants and their family members. The motion specifically requests the opportunity for in-person visitation, which the defense attorneys claim is their clients’ right under domestic and international law. William Montross, representing bin Attash, discussed the importance of a defendant’s family in capital trials, in which their support is vital both for the defendant’s emotional well-being and for mitigation—an element of death penalty litigation where the defense builds a case for sparing the life of a defendant found guilty, often relying heavily on information and testimony provided by family members.

Walter Ruiz, for al Hawsawi, followed Montross and focused on the relationship between the military commission and the guard force at Joint Task Force Guantanamo (JTF-GTMO—the unit that operates the detention camp—and the commission’s ability to order the guard force to facilitate communications between the defendants and their families. He asked the judge to not merely defer to the guard force’s judgment but rather carefully weigh “those fundamental rights that are at issue with the interests of the detention facility.” Prohibiting contact between the defendants and their family members, thereby impeding the defense’s ability to develop a proper mitigation case, would “subvert[] a fundamental right that Mr. al Hawsawi has at trial, during the ongoing preparation of his defense, which is to be effectively represented by counsel and also not to be subjected to cruel and unusual punishment, which certainly would flow from being put in a position where he has not had access to best available evidence that would allow us to present the best case for life before a fact-finder.”

Next, the parties turned to AE 524, a defense motion to dismiss or alternatively to compel the government to produce CIA witnesses for interview, and AE 524LL, Judge Pohl’s ruling on the motion. In August 2018, Judge Pohl ruled that government-imposed restrictions on the defense teams’ ability to independently investigate and obtain interviews from individuals affiliated with the CIA who in some way interacted with the defendants when they were in CIA custody “unreasonably impede[ed]” the defense’s efforts to obtain evidence about how they were treated; to rebalance the scales, he determined that the government would not be permitted to “introduce any FBI Clean Team statement from any of the accused for any purpose.”

The discussion on Thursday centered around the prosecution’s request that “the commission reconsider [Pohl’s] ruling and correct the clear errors and manifest injustice that would result if AE 524LL is left in place,” on account of “both procedural errors and errors in the application of the law governing the protection of classified information.” The government argued the sanction Judge Pohl imposed was “premature” and “inconsistent with dozens of prior rulings issued by the military commission to protect the identities of CIA persons.” Rather than suppressing the clean team statements, Judge Pohl should have rejected the government’s proposed protective order and directed the government to come up with an alternative scheme that was fairer in the eyes of the court. Additionally, the government said, Judge Pohl erred in finding that the defense was placed at a severe disadvantage by the protective measures the government put in place: the defense teams retained the ability to contact certain witnesses as long as they went through the government, and regardless, the voluminous discovery already provided to the defense made it so there should be no “difficulty putting the facts in context into however they want to argue it.”

Speaking one after the other, the defense attorneys disagreed with the government’s characterization of the circumstances and asked Judge Parrella to decline to reconsider Judge Pohl’s ruling that the clean team statements should be suppressed. The defense argued that the restrictions imposed upon them by the government significantly hindered their ability to develop the comprehensive evidentiary record necessary to effectively represent their client and present a robust and compelling mitigation case, and that the record amply supported Judge Pohl’s conclusion that a remedy was needed to counterbalance the government’s structural advantage. While the defense preferred dismissal on the ground that the government’s national security interests were in “irreconcilable conflict … with our ability to test the credibility of these witnesses in a cross-examination,” as is the defendants’ right under the Sixth Amendment, they acknowledged that “Judge Pohl carefully considered all of the evidence, all of the issues before this commission, and arrived at what he thought was a balance, and we think struck an appropriate balance.” Judge Parrella should therefore let the ruling stand.

The parties then moved on to AE 555, the defense motion to dismiss for unlawful influence over Rishikoff and Brown. The discussion focused on Castle’s Nov. 13 testimony and whether the defense had made a sufficient showing of unlawful influence or the appearance of unlawful influence, or at least had established a basis for calling additional witness in support of the motion. The defense argued that Castle’s testimony and the rest of the evidentiary record demonstrated that the Defense Department Office of General Counsel was inappropriately influenced by the Office of the Chief Prosecutor and that the official reason for firing Rishikof and Brown—their questionable judgment and consistent failure to properly coordinate their actions with higher and adjacent authorities—was pretext. The true reason for Rishikof’s firing, the defense contended, was that he exercised too much independence and was actively pursuing a plea deal in the case, to the dismay of the prosecution and certain individuals within the Office of General Counsel. While Mattis concededly had the authority to fire Rishikof at any time, doing so with the intent to interfere with Rishikof’s independent, quasi-prosecutorial discretion would constitute unlawful influence over the proceedings. According to the defense, the evidence before the commission supported a finding that Castle’s recommendation to Mattis to fire Rishikof hid the true motive, in an attempt to evade an unlawful influence claim. The defense therefore had made the requisite showing to the commission to support its motion, the burden of proof shifted to the government on rebuttal.

In response, the government said the defense “ha[d] not produced any evidence of unlawful influence or the appearance of unlawful influence, and the burden ha[d] not shifted to the government.” The stated justifications for Rishikof’s and Brown’s firing were the true reasons, and were legitimate; the two were fired not because of their actions as convening authority and legal adviser—namely, pursuing a plea deal—but because of their poor performance as director of the Office of Military Commissions and chief of staff, respectively. Furthermore, the prosecution said, even if you granted for the sake of argument that there was the appearance of unlawful influence, that was cured by the appointment of a new convening authority, who acted on a clean slate and to whom the Office of General Counsel had given no warnings or directives about permissible conduct. Ultimately, the defense had failed to shift the burden to the government, and even if they had, the government should still prevail because the unlawful influence claim was without merit.

Closing out the session, Judge Parrella orally denied al Hawsawi’s motion for the judge’s recusal and said he would follow up with written findings of fact and conclusions of law on the matter. He then put the commission in recess until Friday morning, when the parties convened for classified proceedings.

The next session of the commission is currently scheduled for January 2019.

Michelle Ritter is a second-year student at Columbia Law School. Prior to law school, Michelle served as Cyber Research Associate at Stanford University's Hoover Institution, as Cyber Research Assistant for the Department of Homeland Security’s Subcommittee on Cybersecurity, and as a Researcher for the Institute for State Effectiveness and for the Government of Afghanistan. She holds a BA in Economics, International Studies, and Political Science from Johns Hopkins University.
Sarah Grant is a graduate of Harvard Law School and previously spent five years on active duty in the Marine Corps. She holds an MPhil in International Relations from the University of Cambridge and a BS in International Relations from the United States Naval Academy. The views expressed here are her own and do not reflect those of the Department of Defense, the Marine Corps, or any other agency of the United States Government.
Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

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