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We kick today’s session off as usual with attendance. Defendants Walid Bin’Attash, Mustafa al Hawsawi, and Khalid Shaikh Mohammad have all waived their right to be present at today’s sessions; only Ramzi Binalshibh and Ammar al Baluchi chose to attend.
We’ll begin with the defense’s response to yesterday’s argument by the prosecution on the sufficiency of classification guidance given to the defense teams. Marine Lieutenant Colonel Sean Gleason, counsel for Mustafa al Hawsawi, is up first. He picks up the prosecution’s analogy yesterday that classification review is like a funnel and things get backed up: in his view, what the prosecution puts into the funnel always gets through first. And without the classification guides, Gleason argues, the best the defense can do is make an educated guess, which all can agree is a dangerous thing to do with classified information.
Next on the agenda is a motion to compel discovery. James Connell, counsel for Ammar al Baluchi, begins with the scope of the initial request. First, the defense asks for complete and unredacted communications between government officials and the filmmakers of Zero Dark Thirty, including at least 21 meetings between unnamed CIA officers and the filmmakers.
Connell argues that the opening interrogation scenes contain a character modeled after his client and include accurate details of the interrogation that aren’t part of the public record. He notes that the Zero Dark Thirty version of events begins with the interrogation of a captive, which begins the series of events that leads to the killing of Osama bin Laden; suspiciously, the CIA’s official version says the interrogation of Ammar al Baluchi kicked off a series of events that led to the killing of Osama bin Laden.
First, the defense wants the prosecution to review more material that might be responsive to the discovery request. When the defense initially asked for this material in discovery, the prosecution reviewed only the material released publicly in response to a Freedom of Information Act request. Connell wants the government to review anything that might be responsive. Second, as a result of those communications and apparent gifts the CIA officers accepted in return, the CIA launched an ethics investigation. Connell wants military judge Army Colonel James Pohl to review the unredacted Inspector General report and provide the defense a classified version.
Judge Pohl asks why Connell believes the information is material to preparing the defense, the standard for discovery. He responds that mainly it will be relevant to the mitigation case to argue against the death penalty by providing a more complete picture of the torture suffered by his client. It may also be material, according to Connell, if the government assisted in producing a film telling its version of events that ends up affecting the case.
The government’s position is that nothing in the redactions from the IG report is in any way material—and that any emails or underlying communications that would be relevant would be contained in that report as well.
Connell argues that Judge Pohl should order an indexing of review materials, that the government should actually go back and review all discovery responsive emails directly rather than simply reviewing what was displayed in the IG report, and third, that Judge Pohl should review the unredacted IG report in camera to determine the materiality of any currently redacted portions.
Next on the docket is a motion relating to expert witnesses. Judge Pohl modifies the procedures for expert witnesses to require both parties to give notice. Connell doesn’t want to have to produce their expert requests to the convening authority because they contain work product that the prosecution wouldn’t otherwise see. Instead, Connell asks that Judge Pohl revert back to the pre-2016 arrangement in which the notice issue was handled by exchanging expert reports and other prepared materials.
Connell argues there is a fundamental information imbalance problem with the current set-up: since the government’s experts are largely already government employees, the prosecution doesn’t need to hire additional experts and thereby provide extra notice. Because the defense has to hire many more expert witnesses, it will have to provide much more information. And this is a constitutional problem as well as statutory. Congress passed the Military Commissions Act to lay out constitutionally sufficient process for the commissions. 10 U.S.C. § 949j explicitly provides the opportunity to obtain witnesses comparable to that available in an Article III federal court.
Connell is concerned that the current rule conflates expert consultants and expert witnesses and that parties should be required to give notice only for witnesses. The defense doesn’t want to be revealing all of the consultants it’s using to put together a defense strategy, particularly when those consultants may never be called as witnesses. Connell asks that Judge Pohl issue an order requiring each party to give 15 days’ notice prior to the hearing at which the witness is expected to testify.
Arguing for the prosecution, Clay Trivett indicates that the government doesn’t expect disclosure of all consultants, but notes that 15 days’ notice would be far too short. Ultimately everyone is in basic agreement about the rule change and the exactly number of days that constitute sufficient notice can, according to Judge Pohl, be determined down the road.
Air Force Captain Brian Brady, counsel for Walid Bin’Attash, now presents a motion to compel discovery on the intelligence community’s monitoring of their defense team and attorney-client communications. Brady argues that monitoring of the defendants’ and their counsel’s communications at the defense table is gross misconduct and material to mitigation.
After hearing on the matter from other defense teams, we turn to the prosecution. On behalf of the government, Edward Ryan argues that this simply isn’t material. It’s years after the crime, doesn’t go to guilt or innocence, and doesn’t go to mitigation, which considers the character, record, and circumstances of the defendant and the offense. Ryan can’t help but get a dig in at Walid Bin’Attash’s defense team: “And in the case of Bin’Attash team, the great irony is they will be chilled from communicating with a client who hasn’t spoken to them in two years.” Cheryl Bormann, counsel for Bin’Attash, objects, but Judge Pohl overrules it, noting that she’ll have a chance to rebut.
A few more minutes into argument on the issue and we’ve got an emergency bathroom request. Judge Pohl instead calls lunch and we’ll be back in session at 1400.
Returning from lunch, we’re joined by Walid Bin’Attash who has opted to come for the afternoon session. Marine Major Derek Poteet, a member of Khalid Shaikh Mohammad’s defense team, is up first to argue on the same motion. Poteet stresses that the discovery obligation is broader than just that which goes to innocence and guilt. The defense is asking the prosecution to actually do some asking about whether there has been monitoring by intelligence agencies, and that they look for not just unauthorized or illegal monitoring but any monitoring at all.
Walter Ruiz, counsel for Mustafa al Hawsawi, further requests that Judge Pohl ask Ryan and other members of the prosecution to make affirmative assurances to the court that they do not have this information. Judge Pohl is skeptical: “What about the investigators and the paralegals that are part of the government? Do you want me to ask them?” Ruiz explains that the prosecution could make assurances on behalf of their team, which would be appropriate and consistent with commission rules and past practices. Further, because the prosecution has been able to provide unequivocal, affirmative assurances of no monitoring in the past, Ruiz believes when the government has the will, they’re able to do this.
Moving to the next matter, Cheryl Bormann, counsel for Walid Bin’Attash, presents a motion she “fondly term[s] the ‘Who is Greg Sansing’” motion. Here’s what happened: back in 2012, she and a fellow defense attorney discovered that if you right-clicked on their documents, privileged attorney work documents, you could see what permissions various people had. Various members of Bin’Attash’s defense team had permissions but there was one name they didn’t recognize: Greg Sansing. When they began digging, they discovered that Greg Sansing had permissions to all of their privileged material.
It turns out Greg Sansing had permissions to some other defense files too. Michel Paradis, an appellate defense attorney, tracked Sansing down and tried to get to the bottom of it but Sansing wasn’t totally cooperative and responsive. So they want to compel discovery to sort this out and understand what happened.
For the prosecution, Ryan argues that because this motion was pending when relevant IT Defense Department employees (even some listed in the motion) testified, the motion is now moot.
Last item on the agenda is an issue implicating unlawful influence. The defense contends that Deputy Defense Secretary Robert Work, the convening authority, instituted changes to attempt to interfere with the independence of the military judges to speed the pace of litigation. The commission previously ruled on this and Work withdrew the change. The defense now wants his disqualification as convening authority for the unlawful influence.
The government responds that Deputy Secretary Work’s replacement has been nominated by President Trump but not yet confirmed and that this issue will thus be overcome by events soon enough.
Defense counsel Major Jason Wareham suggests that the expedited schedule this year compared to last is evidence of continuing effect on unlawful influence. This really annoys Judge Pohl: “…if I apparently try to get things done…,” he quips. Wareham makes clear that their position is that the schedule should be reduced down to eight weeks of argument for the year as it was last year, rather than the 12 currently scheduled.
We wrap up with some brief scheduling issues and break until tomorrow.