Recent Orders in the 9/11 Case

Wells Bennett
Wednesday, December 12, 2012, 2:44 PM
Done with security review: four recent orders from the military judge, James Pohl, in United States v.

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Done with security review: four recent orders from the military judge, James Pohl, in United States v. Mohammed et al.    The first, AE60A, rejects a defense bid to uncover more information about Judge Pohl’s detailing of himself to the 9/11 case.  Among other things, the defense had inquired about the workloads and qualifications of other commission judges, and Judge Pohl’s personal financial holdings.  In short, the court says assignment information is not subject to scrutiny by any party; and that, during arraignment, the defense already asked, and Judge Pohl answered, questions about any 9/11-related stock losses. Three other rulings deal with secrecy procedures.   With AE13P, the court enters the much-debated order to protect against the disclosure of national security information (the "protective order").  The court sets out its thinking in a separate document, AE13O, which formally grants the government’s request for a protective order.  The last of the trio is AE9E, which dismisses defendant Ammar al-Baluchi’s motion to “end presumptive classification” as moot.  Taken together, the three secrecy rulings seem to have something for the prosecution as well as the defense. [caption id="attachment_10568" align="alignleft" width="286"] Judge James Pohl.[/caption] By way of example, the protective order adopts the accuseds' request for a Defense Security Officer  or “DSO”---a security specialist aligned with the defense only, and within the defense's privilege bubble.  Prosecutors had objected to this vigorously during oral argument.  They said members of the defense team should not have a direct line to the original classifying authorities, and that a DSO was unnecessary, because the 9/11 accuseds’ security consultants already performed the work of a DSO.  That was not the only area where the commission sided with the accused.  Judge Pohl also thought the government’s proposed rules for handling classified material would “preclude [defense] counsel from freely sharing information as they develop joint trial strategy and tactics.” Thus, as entered, the protective order disallows the disclosure of covered information to counsel in other military commission cases---but nevertheless recognizes that “presentation of a joint defense may necessitate disclosure on a need to know basis for counsel for a co-accused.” The commission also endorsed the government’s narrowed, less-defense-restrictive approach to the handling of classified materials. Earlier, you’ll recall, the United States did away with its proposed and controversial requirement that all statements of the accused be treated as “presumptively classified,” pending declassification review.  Now, a statement by the accused, on obviously-unclassified-but-still-case-relevant (or even irrelevant) subjects, will not have to be handled with the same with same sensitivity as, say, a remark by Khalid Sheikh Mohammed about his euphemistically described “participation” in the CIA’s RDI program.  (For this reason, the commission deemed the motion to “end presumptive classification” to be moot: in Judge Pohl's view, the government already had ended the practice unilaterally.) To be sure, the protective order is not an unqualified bonanza for the defense.  Naturally it takes great pains to safeguard the government’s security interests.  Though it no longer employs the “presumptive classification” mechanism, the order makes clear that “observations and experiences of an accused” with respect to their capture, detention and interrogation are to be treated as classified under the order.   Thus the commission implicitly rejects the claim---Judge Pohl does not mention it specifically---that the government should not be permitted to force classified material upon a criminal defendant, by means of coercive interrogation; and afterwards preclude open discussion of that same material during court proceedings. Relatedly, the commission batted down arguments by the ACLU and the press, regarding the imposition of a 40-second delay of the courtroom's audio feed to the Guantanamo press gallery and to CCTV facilities located in the United States.  Here the court manages some analysis, but still deals with the access issue in quite terse a fashion---too terse, in my view.  That's hardly a break with recent practice, of course; commission rulings tend to resolve complex and thoroughly briefed questions in an exceedingly breezy fashion. Judge Pohl mentions, but doesn’t really engage with, the objectors’ seeming equation of a 40-second delay with the courtroom’s outright closure; the commission likewise does not evaluate the ACLU’s claim that the court must engage in a fact-bound, strict scrutiny analysis before any closure may occur (AE130O at para. 5).  Instead, the commission observes that “the brief delay is the least intrusive and least disruptive method” of ensuring transparency as well as national security.  That might well be correct, practically as well as legally---but a matter of such importance warrants fuller discussion.

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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