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

October 18 Commission Session #2: Unclassified but Sensitive, Continued

Wells Bennett
Thursday, October 18, 2012, 12:50 PM
The screen comes alive with James Connell III---who responds to the court’s pending inquiry, regarding material that isn’t subject to the government’s information privilege but that still comes within the ambit of its proposed order to protect unclassified discovery.  (We still do not know what David Nevin’s earlier inquiry was about.) The lawyer answers by touting his side's proposal.

Published by The Lawfare Institute
in Cooperation With

The screen comes alive with James Connell III---who responds to the court’s pending inquiry, regarding material that isn’t subject to the government’s information privilege but that still comes within the ambit of its proposed order to protect unclassified discovery.  (We still do not know what David Nevin’s earlier inquiry was about.) The lawyer answers by touting his side's proposal.  Our order, Connell says, is superior, among other things because it accounts for FOIA-exempt materials, including information that isn’t subject to the government information privilege.  The government’s alternative, on the other hand, appears to shield from disclosure much, much more material, including the names of anyone who could be a witness in this case.  Of the two possible approaches, the defense’s also makes for easier discovery management:  contrary to Ryan’s suggestion, there is no need to redact or handle the information as one would in FOIA litigation.  Judge Pohl is catching on.  So, if a document falls within a FOIA exemption, then it need not be redacted, paragraph-by-paragraph, as Ryan suggested?  Right, says Connell; no overly burdensome redactions or editing for the prosecution to deal with.  According to Connell, the lone obligation for the prosecution would be to mark the document in question---once---with a banner on the top, indicating the document’s proper distribution level under the protective order. To the court’s mind, Connell thus far has been talking procedure.  But Judge Pohl wants to know whether the lawyer has any substantive objections to the government’s position.  The lawyer doesn’t accept the court’s premise.  Here, the process determines the substance, Connell argues, because whether information fits in a particular protective order category determines what can and cannot be disclosed.  He returns to the defense’s proposed order, and its many benefits for defense and prosecuting attorneys alike. With the defense proposal, the names of potential witnesses, for example, can be designated as especially sensitive, and thus withheld from the public; and, if the defense disagrees with the prosecution’s designation, it can litigate that later.  Mention of witnesses returns the court to its leitmotif for the morning: timing.  Why enter this order now, when witness matters still remain so far in the future?  For Connell, the bottom line is that his approach is narrow and solicitous of the government's interests.  Again, if the government wants to protect information, it simply can tell the defense that information is covered by a FOIA exemption, and shield it from disclosure. The witness issue matters to Judge Pohl.  He asks Ryan: if the defense learns, from discovery materials, the identity of witness A, and witness A points the defense to witness B, can the latter’s name be disclosed?  Ryan’s answer, in so many words, seems to be yes. The prosecution’s explanation is wrong, explains Connell.  It doesn’t jibe with its proposed order, the relevant paragraphs of which Connell reads aloud to the court.  Sure, Ryan may understand the language in a broader, more disclosure-friendly way, but that’s not how the proposal is worded, Connell says.  This moves the defense lawyer to his fundamental problem: the government’s approach shields from the public far too much information that, oddly enough, is already in the public domain.  All discovery seems to fall into some protected category, in the government’s view---even when released to the world previously.  A hypothetical illustrates Connell's point.  Suppose Al-Jazeera TV runs a news story, which the government eventually produces to the defense in discovery.  Under the prosecution’s approach, the recorded broadcast becomes protected material—and thus cannot be disclosed.   Judge Pohl disagrees, and the disagreement prompts Connell once more to recite the proposed order's key paragraphs.  Of course there can be categories for controlled material like force protection information, the defense lawyer concedes.  But there has to be one for uncontrolled stuff, too, like the Al-Jazeera broadcast Connell had hypothesized moments earlier.  Ryan, when asked by Judge Pohl, confirms that the government could not, in fact, transform news reports into protected material simply by producing it to the defense.  This doesn’t reassure Connell.  Documents maintained by the 9/11 Commission, he says, still would come within the protective order as drafted, even though those same documents are not in any way controlled by the government.   The overbreadth returns Connell to the many virtues of his side’s proposed order.  The lawyer finally refers to the "gag" order---that is, the government’s proposal to shield members’ identities from disclosure, and to bar disclosure of that information by members of the press. That’s a prior restraint, in Connell’s view.  But in Judge Pohl’s, the issue---whatever its legal characterization---can be addressed at some point in the future.  Connell sits down. Other defense lawyers chime in.  David Nevin joins Connell’s request for a mechanism permitting the prosecution and defense to seek judicial review of particular discovery document markings.  (Connell’s proposal had not yet been endorsed by any other of the accused.)  He adds that “DoD personnel,” as the term is used in the government’s order, might cover JTF-GTMO: its an ambiguity that needs clarification.  He concludes by objecting, strenuously, to any order that precludes his client, KSM, from reviewing documents provided in discovery—classified and unclassified alike.  Cheryl Bormann, Walid Bin Attash’s lawyer, rises and endorses the arguments advanced by Connell and Nevin, particularly that regarding a capital defendant’s fundamental right to review all discovery material.  She adds that the protected order’s vague “DoD personnel” language will prohibit her from developing information about JTF-GTMO staff who the prosecution might use, for example, as experts in the ongoing dispute over the conditions in defense lawyers' offices.  Under the government’s approach, Bormann could not reveal the names of those experts to, say, other individuals assisting in Bormann’s investigation.  Binalshibh’s lawyer, James Harrington, joins his predecessor’s arguments, with a few exceptions; he emphasizes that, because of the current restrictions on counsel, the defense may not be able to discover witnesses’ names in the first place.  Then we move to Ruiz, who endorses his colleagues’ protective order claims across the board. Judge Pohl wants to ask Ryan about Bormann’s objections.  For his part, the prosecutor doesn’t see anything in the protective order that would impede Bormann’s investigation.  Can Bormann disclose a witness’s name to another person, say, in order to investigate the witness’s veracity or reputation?  Ryan thinks so, but stops short of delivering an unqualified yes.  The court repeats his hypothetical, which draws a firmer endorsement from the prosecutor---who is careful to exclude force protection information.  Though the latter cannot be disclosed, Ryan explains, but general discovery material can be, to other witnesses or to the accused themselves. Does anybody have anything else to add?  No.  Okay, then: the question of how to manage unclassified but sensitive discovery will be taken under advisement.  We await a written ruling.

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.

Subscribe to Lawfare