Last Week at the Military Commissions: Undue Influence and Other Issues in the 9/11 Case

Last week, the military commission in United States v. Khalid Shaikh Mohammad et al. reconvened for pretrial proceedings, meeting in open session on July 23 and 25, and in closed sessions on July 24 and 26. The commission covered a wide range of topics, including motions relating to unlawful influence by CIA director Gina Haspel, FBI influence in CIA interrogations, denial of a public trial, errors regarding classification determinations, and competing theories of "hostilities" under the law of war. The proceedings related to each of those issues, in addition to a few others, are summarized below.

Administrative Matters

At the beginning of the July 23 session, military judge Col. James Pohl swore in two new defense attorneys: Rita J. Radostitz representing Khalid Shaikh Mohammad and William R. Montross representing Walid bin Attash. The accused were read their right to be present, and defendant Walid bin Attash reiterated his dissatisfaction with his defense counsel, claiming that his attorneys “accept the situation as it is.”

The July 25 session commenced with defense teams for bin Attash and Mustafa al-Hawsawi objecting to the fact that some discovery had been provided to one team but not the others and requesting that all discovery (excluding certain medical records) henceforth be provided to all five defense teams. The government argued that classification guidance from the Office of the Convening Authority requires that certain discovery materials only be made releasable to specific defendants, on a need-to-know basis.

Unlawful Influence by CIA Director Gina Haspel

On July 23, Radostitz presented initial argument on behalf of Khalid Shaikh Mohammad on Appellate Exhibit (AE) 579, a motion to dismiss due to unlawful influence by the director of the CIA, Gina Haspel. During her sworn testimony before the Senate Select Committee on Intelligence, Haspel testified that Mohammad was the architect and mastermind of the September 11 attacks, that he financed the 1993 attack at the World Trade Center, that he was behind the Bojinka plot in the Philippines, and that he was the individual who personally killed a Wall Street Journal correspondent. Haspel also testified that she was proud of the fact that the CIA had identified and captured Mohammad.

Radostitz asserted that her client was entitled to the presumption of innocence, despite having made a confession, citing In Re Mohammad. Moreover, Radostitz argued that these comments professing Mohammad’s guilt constituted unlawful influence or the appearance of unlawful influence under section 949(b)(a)(2) of title 10 of the United States Code and sections (a) and (c) of Rule 104 of the Rules for Military Commissions. If Haspel’s testimony affected even one member of the panel, she argued, it would constitute unlawful influence in violation of the statute and the rule; at the very least, Haspel’s declaration under oath of Mohammad’s guilt gave the appearance of improper influence. Additionally, Radostitz argued that Haspel had attempted to coerce defense counsel and had unlawfully interfered with the defense counsel’s exercise of professional judgment by leveraging her role as the ultimate classification authority. As CIA director, Haspel is ultimately responsible for issuing classification guidance to defense counsel; this guidance in turn impacts defense counsel’s access to witnesses and ability to investigate.

Radostitz also referenced tweets from President Trump following the Senate testimony, which Radostitz said amounted to endorsement of Haspel’s comments by the Commander in Chief.

Col. Robert Swann responded for the prosecution, arguing that Haspel had simply repeated statements made by Mohammad before a Combatant Status Review Tribunal. Swann argued that the object and effect of the testimony was not to influence or coerce, but merely to identify Mohammad. Furthermore, Swann said, the President’s tweets had nothing to do with Haspel’s statements on Mohammad, but simple expressed general support for Haspel as the CIA director nominee. Judge Pohl inquired as to whether at some point there becomes a cumulative effect of unlawful influence, to which Swann replied that “we haven’t reached that point.”

FBI Involvement in CIA Interrogations

During the July 23 session, defense attorney James Connell, representing Ali, introduced AE 561, a motion to compel documents relating to requests directed at the CIA, by agencies other than the CIA, to obtain specific information during the black site interrogations. The defense argued that interrogation of the defendants, at both the black sites and at Guantanamo, was a combined U.S. Government effort through-and-through; it was not the case that only the CIA was involved in black site interrogations, and that FBI and DoD personnel only became involved during the “clean team” phase at Guantanamo.

Connell argued that while the existence of cross-pollination between the FBI, CIA, and DoD was “obvious from tidbits in the open record,” including the 2017 testimony of FBI Special Agent Perkins that she sent cables to the CIA with information requests for the black site interrogations and received responsive cables from the CIA, details on the scope and scale of inter-agency communications remained “strangely absent from the discovery.”

Cheryl Bormann, representing bin Attash, agreed with Connell’s argument and theory of defense, stating that “the idea that it took [the government] until 2018 to understand that the relationship between the CIA and the FBI is important in that analysis is ludicrous.” The prosecution asked whether they could have until Aug. 15 to report this information, but the defense pushed back and asked Pohl to rule on the matter immediately. Pohl asked whether the defense wanted to know specifically if a member of the “clean team” directed questions to the CIA interrogators, or whether they wanted to know if any member of the FBI requested information from the black sites. Connell answered that the concern was not limited to “clean team” members, because even if those FBI agents were not directly involved with or present for the black site interrogations, they may have had access to the information obtained through those interrogations if and when it was distributed to the wider intelligence community.

This theory of “one long interrogation” conducted by both the CIA and FBI emerged again during the July 25 session with AE 538, a defense discovery motion seeking materials and communications relating to the development of FBI policies on interrogation methods used after September 2001 on al Qaeda operatives. According to Connell, examples of such materials and communications include the following responsive documents: documents relating to a meeting between CIA attorney John Rizzo and FBI Chief of Staff Daniel Levin on or about July 13, 2002; communications between FBI Director Robert Mueller and CIA Director George Tenet in 2003 regarding FBI access to CIA detainees; and documents relating to a May 2003 FBI conference on CIA reporting from the interrogation of Mohammad during the most “egregious” period of his torture. The defense argued that these materials would demonstrate the linkage between the Office of the Chief Prosecutor, the FBI, and the CIA, would show that FBI interrogators had access to CIA material, and would demonstrate a cross-agency, coordinated policy of denial of access to counsel.

In AE 538, Connell also argued that materials related to FBI policies on interrogation were important because one question for a future motion to dismiss for outrageous government conduct would be whether the government followed its own rules. These materials could also be relevant to a future motion to suppress for torture, because under Missouri v. Seibert, whether the government intentionally used a two-step interrogation so as to meaningfully deprive the defendant of his rights is a critical factor of the suppression analysis.

Denial of a Public Trial

On July 23, defense attorney Capt. Mark Andreu, representing Ali, presented AE 551 (2nd supp.), a supplement to a motion to dismiss for the government’s denial of a public trial, in violation of the Sixth Amendment. In the AE 551 series, the defense team argues that the military commission proceedings do not constitute a public trial for three reasons: first, because the unclassified pleadings are not being timely released to the public; second, because the classified proceedings are not being timely redacted and then released to the public; and third, because transcripts from closed hearings are not being timely redacted and released to the public. The second supplement provided updated statistics from an audit of filings from March 20, 2018 until June 1, 2018.

Brig. Gen. Mark Martins responded for the prosecution, arguing that as a law of war detainee, Mohammad is reasonably limited in public access. According to Martins, only “[s]mall portions of the proceedings and filed documents are being withheld, and an even smaller portion are sealed altogether” as classified information. The defense team replied that when members of the public come to Guantanamo Bay to observe the proceedings, pleadings have frequently not been released. Defense also pointed out that under the Regulation for Trial by Military Commission, there is a window of 15 business days before pleadings must be publicly released. After discussing practical difficulties with the 15-day window given the volume of pleadings, the prosecution suggested that Pohl “tweak” the regulation by establishing a “first-in, first-out” rule for the docket posting system.

Classification Issues Highlighted by Declassified FOIA Document

On July 23, Connell also presented AE 573, a motion to reconsider a classified summary from the 308 series in light of a declassified interrogation cable.

On May 8, 2008, reporter Jason Leopold published declassified documents received in response to a Freedom of Information Act (FOIA) request, including a declassified interrogation cable identical to a cable the defense counsel for Ali had requested in March 2016 and had received in redacted, summarized form. The government previously stated that a redacted summary was necessary because the allegedly-classified information could damage U.S. national security if released. However, the cable’s release to the public through the FOIA process indicated that no such national security concern was present, and defense counsel was not notified of the release. Connell found out about the release through a Buzzfeed news article.

Additionally, Connell pointed out that there was a greater issue than just that information had been withheld from the defense team. The text of the cable as it was released to the public contained important contextual clues that were affirmatively changed in the summary provided to the defense. For example, the summary read, “Subject claims X is still true”, while the cable released through FOIA read, “Subject still claims X is true”, changing the meaning of the sentence. Connell reported that from the declassified cable released via FOIA, the defense team had been able to infer several additional facts from the date of the interrogation and the date of the cable, which strengthened the argument that there existed cooperation between the CIA, FBI, DoD, and other entities during the CIA’s Rendition, Detention and Interrogation (RDI) program.

The government first responded that facts determining classification change over time, that the information was properly classified initially and subsequently declassified in 2018, and that defense counsel had been provided with an adequate substitute of the original classified information through an RDI index. Pohl seemed dissatisfied with the answer, asking, “Why should I sit here now and have any confidence that the 2016 declarations were accurate even at the time? [A]pparently, the damage to national security in 2016 has gone away in 2018. How do I know all of the other summaries don’t have the same problem? [A]pparently all of this information in this particular summary...that I was told would damage national security apparently doesn’t damage national security at all in this particular case, right? That’s what the FOIA thing is telling me?”

When the hearing reconvened after a lunch recess, the government clarified that the Office of the Convening Authority believed the cable had been improperly released through the FOIA process. This, prosecution argued, explained the seeming inconsistent application of classification guidelines between the documents.

Competing Timelines of “Hostilities”

In AE 557, a motion to compel discovery relating to the bombing of the USS Cole, the defense team for Mohammad requested discovery not because Mohammad was charged in the Nashiri case, but because the government planned to present the USS Cole bombing as part of its argument that “hostilities” predated September 11, 2001. Thus, the defense argued that information on the “hostilities” aspect of the USS Cole bombing would be relevant to their ability to refute the government’s theory of hostilities. While responding that discovery obligations had already been satisfied on this issue, prosecutor Clay Trivett articulated the government’s timeline of hostilities as ten separate attacks—beginning with the 1998 East Africa Embassy bombing—that followed a declaration of war by Osama bin Laden and a 1998 fatwa in which he declared that American civilians were legitimate targets in his war.

The question of hostilities arose again during the July 25 session, with AE 513(AAA), Ali’s motion to compel information regarding covert action contemplated by the United States targeting al Qaeda between February, 1996 and October, 2001. Ben Farley, defense counsel representing Ali, argued that documents reflecting deliberation within the U.S. Government concerning whether to utilize covert action targeting al Qaeda before Sept. 11, 2001, could lead to a conclusion that U.S. policymakers were not utilizing military “tools” found in the “law of war toolbox” but were instead relying on nonmilitary “tools” that implied an absence of hostilities between the United States and al-Qaeda. “When a state like the United States chooses to rely almost exclusively on [] nonmilitary tools, the diplomatic, the economic, the law enforcement, and intelligence tools, it implies an absence of hostilities,” Farley explained. Trivett responded that the utilization of any one instrument of power—whether it be diplomatic, intelligence, law enforcement, or military—does not mean that the others aren’t being utilized.

Judge Pohl pressed Farley on whether the existence of hostilities being a necessary condition for personal and subject matter jurisdiction comes from the MCA or other authorities. Farley responded that it comes from the MCA as well as Supreme Court precedent, including Ex parte Quirin. The commission also discussed statutory interpretations of the MCA, with Pohl questioning whether Congress intended for the MCA to cover actions both before and after Sept. 11, 2001, with “hostilities” predating Sept. 11, 2001. Farley responded that, “to the extent that a collective body can have any sort of intent...Congress chose, and it did not have to choose, but it chose to try these men by military commission and it chose to rely on the law of war as the substantive law for the military commission.”

Additionally, Farley said, should the documents sought through AE 513 reveal that U.S. policymakers had considered bin Laden as an individual rather than in his capacity of the head of al Qaeda, it would imply the absence of hostilities, under the theory that hostilities are organized, collective armed violence. Farley also argued that the threshold for “hostilities”—including the organization requirement and the utilization of armed force—is higher for a non-international armed conflict than an international armed conflict. Trivett responded that from the government’s point of view, the Sept. 11, 2001 attacks would have met either threshold, and that the standard for “hostilities” articulated in Hamdan v. Rumsfeld should be the correct standard. Farley countered that the Supreme Court in Hamdan did not actually address the standard for “hostilities” in a non-international versus an international armed conflict, but had instead simply found that regardless of the character of the conflict, Common Article 3 of the Geneva Convention applies.

The timeline of hostilities is significant because the existence of hostilities is a jurisdictional requirement of the military commissions for every element of each offense charged.

Sweep of Attorney-Client Meeting Spaces

Following concerns over the security of attorney-client meeting spaces in the Nashiri case, the defense teams asked Pohl to issue an order for the Convening Authority to conduct a full technical surveillance countermeasure sweep of all spaces controlled by the Joint Task Force at Guantanamo Bay. The trial counsel did not object, and Pohl requested that Capt. Andreu submit a proposed order in one week.

Interference with Access to Legal Materials

According to defense counsel’s AE 583 pleading, in April 2018, Ramzi Binalshibh was placed in a “super” disciplinary status, or a disciplinary status “on steroids”. Under this disciplinary status, defense counsel for Binalshibh claimed that Binalshibh’s access to his legal materials and mail was restricted to one hour per day, constituting a violation of Binalshibh’s right to counsel and right to assist in his defense. The government responded that Binalshibh had refused his legal materials after being told he could only exchange bins of legal material every hour, and that there was a misunderstanding.

Judge Pohl asked whether there was a standard operating procedure (SOP) relating to defendants’ access to legal materials while in this status, and defense counsel replied that there was none. James Harrington, representing Binalshibh, provided proposed language for an SOP that would ensure full access to legal materials, regardless of disciplinary status. The government took the position that any such proposed language would be unnecessary and redundant.

Additional Medical Records from CIA Blacksites

During the July 25 open session, defense counsel Suzanne Lachelier, representing al-Hawsawi, filed a supplement to AE 419, a motion to compel medical records. In the supplement, Lachelier requested additional medical records from CIA black sites, asserting that the government had only provided medical records in the forms of classified cables, despite having admitted to the existence of original, non-cable records. The government argued that there were no more than one or two pages of outstanding medical records responsive to the AE 419 request.

Miscellaneous

All parties agreed to push forward the hearings scheduled to begin on May 6, 2019 to April 24, 2019, to avoid conflicts with Ramadan. Judge Pohl indicated that he was open to the rescheduling, but requested that within two weeks, defense counsel file a supplement to the motion addressing whether Muslims do any work during Ramadan and whether Muslim defendants are tried in civilian federal courts during Ramadan.

The commission also considered AE 568, a motion to compel discovery of business records and correspondence used against al-Hawsawi. Counsel for al-Hawsawi claimed that the government was too slow to respond and had only sent two letters since the last discovery request on this issue. The prosecution argued that the government had been sufficiently responsive under their discovery obligations and that the defense could conduct their own investigation if they want more information on the financial record.

Additionally, the parties discussed AE 582, a defense motion to compel FBI Regional Computer Forensic Laboratory (RCFL) reports for evidence from an FBI raid. The defense teams explained that they had been unable to access 300 digital media items from the FBI raid in question—located on CDs, floppy discs, and tapes—because they didn’t have technical capabilities to read these items, and said that the RCFL reports would describe the contents of those digital media items. Rather than turning over thousands of pages of RCFL reports, Pohl asked the government to provide a status report by the end of the session on when forensic toolkits could be provided to defense teams, allowing them access to the 300 digital media items.

Finally, the commission discussed AE 555R, a response to the government’s motion to reconsider, and AE 555P, a reply to Ali’s motion to compel the government to produce witnesses. Pohl asked that going forward, both parties separate their responses and replies rather than filing consolidated briefs.

The session finished with closed proceedings on the afternoon of July 26. Judge Pohl then put the court in recess until the next set of hearings, currently scheduled for September 3.