October 19 Commission Session #1: No Accused in the Courtroom While We Discuss Classification Guidance

Judge Pohl’s at the bench.  It seems the morning will be a court-and-counsel only affair: none of the five accused have materialized.  That means a quick appearance by Robert Swann; some testimony, from our now familiar JTF-GTMO staffer about each accused’s knowing and intelligent waiver of his right to attend; and each accused’s execution of written waiver documents.  There’s a finding from the court to that effect, and we’re off. The Chief Prosecutor rises and asks to reorder things a bit.  Rather than commencing with the prosecution’s argument, as to AE36---the defense’s motion regarding Rule 703, which got underway yesterday, just before we adjourned---Brig. Gen. Mark Martins asks to proceed now to AE54, Ammar al-Baluchi’s motion to compel discovery of certain classification guidance.  Is that okay?  Yes, the court says. One of al-Baluchi’s attorneys, James Connell III, stands and argues the latter motion.  The gist: he wants more information from prosecutors about how to handle classified materials in military commission proceedings, but the prosecutors won’t hand it over.  The lawyer provides an overview of the various categories of sought documents, including classification guidance issued by the Department of Defense.  Judge Pohl refers to guidance that’s in the record already, regarding the CIA’s RDI program.  That’s not what we’re after, Connell argues.  He instead wants more generalized, formal instruction about what is classified, and at what level---because he hasn’t seen enough to know how to handle particularly sensitive information.  What, for example, happens if Connell and company learn of covert actions or other intelligence operations, in the newspaper?  His current guidance doesn’t account for that, and so the defense lawyer must treat everything he sees as TOP SECRET/SCI.  That’s a tremendous logistical burden, but he doesn’t want to go to jail, so his default position is extreme caution.  The lawyer is, moreover, blown away by the lack of assistance from the government.  Why wouldn’t prosecutors want to help him?  Connell then blasts the prosecution’s stated rationale for denying his request for more documents: that the defense has not demonstrated the sought information’s relevance.  Well, Connell says, the relevant rule, Rule 701, doesn’t require a showing of relevance---and in any case, his goal is not to litigate, but to figure out how to be a proper steward of national security information. With that, Connell concludes his opening argument, which other defense lawyers then join. Johanna Baltes stands and explains the government’s obligations.  The standard, she says, is articulated in Rule 701---there must be some showing that a request has more than hypothetical relevance.  For its part, the defense says something is relevant and material because it relates to an issue raised with the commission, but that’s circular: materiality goes to the case itself, not to the defense’s insistence on litigating something.  She turns to the categories of guidance Connell asked for.  One, she notes, explains the nature of the harm to national security that improper disclosure would bring about---that’s obviously something the defense doesn’t need to know in order to prepare its defense.  Other documents are similarly useless from the defense’s standpoint, as they only generically describe the classification authority’s methodology.  Judge Pohl notes that the prosecutor’s summary is, in essence, a proffer.  He thus can’t really decide the question of what’s discoverable without taking evidence on the question.  Baltes explains some more, insisting that the irrelevance of the sought documents is obvious on their face---something that prompts the court to ask for an affidavit or other ex parte showing to back up her claim.  Finally, Baltes says, it is not the government’s responsibility to provide broad classification guidance for all information that Connell and others might glean from newspapers or from classified databases.  She can’t anticipate everything he might need.  For Judge Pohl, resolution of the protective order might nip this issue in the bud, as the order---if signed---calls for Connell to treat as classified any information that he reasonably believes to be so.  Baltes adds that security officers also can give defense attorneys guidance. The prosecutor’s performance almost knocked Connell over.   The government’s dismissive attitude on security handling, he says, has a massive chilling effect upon the defense.  Consider open source information relied upon by the 9/11 report.  The report’s account is detailed, and talks about our intelligence capabilities at length.  Connell surmises that, despite the publication, some intelligence community stakeholder might still wish to keep those capabilities classified---but he’s not sure.  And it shocks him that, under these circumstances, Connell must himself divine what is secret and what is not.  Judge Pohl: you pick two pages out of the 9/11 report and you are unsure about the pages’ status.  Well, you have the protective order, which tells you how to proceed in such case.  What else do you want?   A defense security officer, says Connell---precisely the person Baltes had recommended as a source for guidance.  And not being able to anticipate every scenario needing classification assistance is one thing; not being able to anticipate any is quite another, in Connell’s mind.  It takes nothing for the government to produce appropriate classification guides, which exist within every classified compartment.  One such guide was generated by the NSA, and designed specifically for use in military commission and habeas corpus proceedings.  He concludes by reiterating the crippling effect of ambiguity, which forces the defense to proceed in the most burdensome fashion possible. The court asks Baltes: was there an NSA manual for habeas cases and military commissions? Connell did ask for that exactly, she answers.  The court pushes: was such a guide prepared or not?  She doesn’t know, but will find out, but emphasizes that the government will only turn over guidance for handling information that is, in fact, relevant to the defense.  The prosecutor does not make light of Connell’s concerns.  But, she adds, it is hard to respond to Connell’s requests for generalized guidance.  Finally, she emphasizes: during her argument, she did not mean to refer to any defense security officer.  She meant IT people, and other security specialists at the Office of the Chief Defense Counsel, with whom Connell can confer about questionable classification calls. Cheryl Bormann rises quickly---with no abaya this time, her client being absent from court---and notes that the prosecution has been awfully slow in turning over guidance that it conceeds it must.  It took the government six months to turn around one guidance request, she says.  That sort of delay is excessive, and supports the defense’s motion to compel. Recess time, y’all.  We’ll finish AE36 next.