REPORT: Feb 26 – Mar 2, 2018 pretrial hearing of 9-11 accused

Other NGOs present and their representatives:

Judicial Watch / Thomas Wheatley

Human Rights First / Patricia Stottlemeyer

National Institute of Military Justice / Dru Brenner-Beck

Indiana University McKinney School of Law / George Edwards

American Bar Association / Stan German

New York Bar / Dan Schlein

Seton Hall Law School / Hendrik van Hemmen

Pacific Council / Carol Hamilton

Georgetown Center on National Security and the Law: Rachel Mazzarella

Sat Feb 24: Uneventful flight from Joint Base Andrews to Gitmo; then the ferry across the bay to Camp Justice. Went to get NGO IDs. Then to the NEX (Naval Exchange) to stock up on supplies. On to the Ali Aziz Ali (A3) defense team’s condo for a NGO BBQ. Jay Connell (learned counsel for A3) explains a bit about expected motions to be argues later in the week, then is open to questions.

Sun Feb 25: prep work

Monday Feb 26: court began at 9:10 am; all 9-11 accused present: Khalid Sheik Mohammad (KSM); Walid Bin Attash (WBA); Ramzi Bin Al Shibh; Ali Aziz Ali; Mustafa al-Hawsawi. WBA stiff refuses to have his legal team sit with him at the second table, so they remain at the 6th table instead. Also of note, two female guards bring WBA into the courtroom. Over two years ago, the commissions were embroiled in a protracted debate over whether female guards could touch the detainees- causing months of delay.

Unauthenticated transcript here:

http://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(TRANS26Feb2018-MERGED).PDF

The following are my summations of each motion argued today:

AE 555: firing of Convening Authority and his legal advisor

Judge Pohl will issue order this week requesting that the Sec of Defense Gen Mattis, and his general counsel explain the facts and circumstances of why Mr. Rishikof (the Convening Authority) and Gary Brown (his legal advisor) were fired. Pohl will also invite Rishikof and Brown to testify as to their version.

AE 525 Motion to Compel Information Identifying the Location of Black Sites

At issue here is 2 sets of ‘guidelines’ that the prosecution sent to the defense on Sept 6 and Nov 17, 2017 regarding defense investigation of black sites.

Jeff Groharing from the DOJ argued for the defense. The Sept 6th letter addressed defense requests to contact ‘people’; the Nov 17th letter provided guidance in traveling to ‘places’. The defense teams argue these letters place undue restriction on their ability to investigate their defendant’s experiences post 9-11. Judge Pohl says he may be able to say restrictions are lawful or unlawful, but he can’t control what happens outside this courtroom ie; the threat of defense prosecution for revealing classified info. Groharing – prosecution is waiting on further guidance from other agencies – should have by Thursday.

AE 502 MM: Motion for Advance Production of Govt Witness Statements  

AE 524 H aaa: has to do with filings with court security officer; opinions about what needs to be classified

Pohl says he will put this in writing, but for future filings, wants the defense security officer to attach an affirmative statement stating no classified info. If court security officer has concerns, they will send to the OCA (Original Classification Authority). Pohl goes on to question Gen. Martins about length of time to get rulings back from the OCA; that they need to be more responsive or he (Pohl) will get involved.

AE 502 jjj: What Constitutes “part of al Qaeda”?

Prosecution rests on brief. Wilkenson 2001 AUMF (Authorization to Use Military Force) does not mention AQ. Discussion of ‘functional analysis’ ensues. DC Circuit has ruled part of AQ if one “performs a continuous function”. ICRC has ruled that a non-state actor can be killed by state actor if he performs a continuous function. Wilkenson sums up with: “’engaging’ is functional; material support is functional; being a ‘member’ is not.

AE 509, AE 513: pending; not addressed this hearing

AE350 re: interpreter – pending

AE 133 RR Attorney – client meeting space / improper monitoring: pending

AE 530 Seizure and forensic search of disabled laptops Pohl had previously found: 1 – detainees had privilege of using laptops; three were found to abuse this privilege (not known exactly how) 2 – laptops had potential for communication capabilities. Connell – govt had broad proposal to address 5 concerns; only 2 were found. Nevin won’t comment; feels he is under conflict of interest (bc of AE525)

AE 538 Discovery re: FBI involvement in Black sites A3 teams arguing that in Dec 2017, the night before Agent Perkins testimony, defense teams found out that the FBI clean teams had access to CIA intelligence information; “there was interaction”. Ryan – original discovery requests was ‘small and finite world; now broadened considerably’ Borman – in federal court material r/t interrogations are a given. Here we have to litigate this.

AE 544B: Issue about who has to go through screening at Washington Gate Borman wants process to be fair; both prosecution and defense should go through screening. Pohl seems satisfied prosecution has come up with solution

AE 551 Denial of Public Trial Connell argues only one public viewing site and military base in MD, ie; not easy to view trial. Makes website very important.Connell believes every filing goes to CSO (Court Security Officer) where determination is made whether classified or not and filing goes to 1 of 2 baskets. Pohl corrects Connell – every filing goes through review whether classified or not. Connell notes webmaster refuses to accept and document that has not gone through OCA review. Cites Rule 19-4 c1: filings shall be posted within 1 business day; reiterates this issue has been brought to court attention 3x. Reminds court that issue began 2012 when ACLU filed AE 13A. Historically: of 224 classified filings only 3 have been released within 20 d; 194 have never been released; 0 have been released in 2017/18. Last classified filing to be released was AE 397 on Nov 2016. Connell than gives data re: unclassified filings, an 806 hearings. Martins argues for the prosecution that Ft Meade is “readily accessible”; acknowledges it often takes > than the required 15 d for classification review. Pohl states 806 should not take 2-3 yrs to be made public. Wants Martins to check with webmaster if every filing has to go through OCA review. (Martins?) states webmaster focuses on getting info up that’s r/t the docket {CK – are they aware that often the docket is not posted before the actual hearing?}

Court ends after discussion of coming week’s schedule.

I’ve never noticed this before, but the accused do not stand when the guards say “All rise” as Judge Pohl is entering and exiting court.

 

Tues Feb 27th No open court

Wed Feb 28th work in morning; afternoon – tour of NorthEast gate with media (gate separating Naval base from Cuba) Super interesting guide; he is a Cuban American Marine who came to US age 5. Very knowledgeable about the history of US-Cuba relations since 1898. Tour highlighted the recent cooperation between the 2 countries. Last week wildfires began on the Cuban side of the gate, and quickly spread to the American side. Cuban helicopters came over the border and dropped water to put out the fires on the US side. Ultimately, over 1000 land mines went off because of the fires /heat (on the Cuban side as the US had de-mined the area under Clinton). Bowling with NGOs in evening. Went to see Black Panther at an open air, outside theater with NGO reps.

Thurs Mar 1: open court. KSM, WBA and RBS all present

Unauthenticated transcript here: http://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(TRANS1Mar2018-MERGED).PDF

AE 551 D (cont) Military commission webmaster and Pohl agree in their understanding – all filing must first go to DoD/OCA for review before posting. Connell disagrees and says he may bring this to the appellate level

AE 534 Motion to Compel Interrogation Documents / Additional RDI Discovery Alka Pradhan arguing for A3 team. Says government is delaying. “FBI clean teams infected by CIA torture” “torture is the nasty center of this case” “struggle to get basic info to which the defense is entitled” “the government is carrying the water for the CIA” Per AE 397, there are 10 categories of discovery: (I think Judge Spath initiated these categories, and Pohl either adopted or expanded.)

  1. Chronology
  2. Description of how transported
  3. All records /photos of conditions of confinement and movement
  4. Identification of all medical personnel
  5. Copies of SOP re: transport and interrogation of HVD
  6. Employment records of #4
  7. Records of training
  8. Interrogator statements re: interrogations
  9. Copies of requests for justification of EITs
  10. Copies of documents re: guidance and approval of EITs

Government says it completed the above for A3 by Sept 2016. A3 says it has ¼ page summary for the 3 ½ years he was in confinement. Team has 2 broad issues with the discovery: not enough detail to create a meaningful timeline; discrepancies between the discovery summaries and publicly available info (ie; Senate Torture report). Because of the multiple discrepancies, A3 team wants Pohl to order the production of all the original documents. Groharing for the prosecution “no intentional wrongdoing or misleading” “sometimes original documents have mistakes”. Recommends 30 second phone call to straighten out. A3 team says RDI index was given su esponte; “would take at least 30 days to solve, not 30 second phone call.”

Cheryl Borman: says it’s possible that the SSCI has seen a different set of documents than Pohl. “If an original document contains mistakes than that document has to be provided to the defense, and the professionalism and integrity of the author would come into question”. Concurs with motion for additional discovery. Nevin states he believes he is laboring under conflict and won’t argue. Pohl restates: “that’s your choice”

AE 524 / AE 525: Defense Motion to Compel Government to Produce Witnesses / Defense Motion to Compel Information Identifying the Location of Black Sites

New memos replace past government guidance – Feb 27, 2018 memo = new guidance on places; Feb 28, 2018 = new guidance on people (covers CIA employees). Connell has long soliloquy about the new memos. Agrees with guidance about places; objects to guidance about people. States prosecution is going first to witnesses and saying you don’t have to talk. “conveys an implied suggestion to interviewees” that they shouldn’t talk to the defense. Pohl asks if there’s a limit on your investigation, which you disagree with, is this a conflict of interest, or a legal issue?” Connell parses out his answer, including how open source past CIA employment is ie – can find on Linkd In. Pohl “Prosecution has said if defense doesn’t agree to this, they will issue a protective order. I can’t control the DOJ; doesn’t remove the threat. If we reach this impasse, what’s your remedy?” Connell quotes Rule 505 6B. Prosecution has said it will never provide black site location info and will absorb sanction instead. Connell thinks the relief would be a finding against the govt in any issue where govt invokes the above in r/t people. It would make prosecution invoke national security at a cost

Afternoon (AE 525 cont)

Nevin – under impression that any info from defendant is classified. If this is NOT true, has no objection but lays out the problem of how do they know if their action is based on this info when info is acquired from both defendant and open source?

Borman – if NYT prints they believe there is a black site in Canada, the “I have a duty” to investigate whether there’s a black site or not.

Groharing: dealing with sensitive, classified info

Pohl: paragraph 3, Feb 27th (new) memo – does phrase modify clearance, need to know, or both? Gr: need to know. Pohl: is there another need to know determination that has to be made? Gr: “I don’t think so” Pohl: paragraph 3 prohibits disclosing classified info to a 3rd party. Can they use a piece of classified info if they don’t disclose it? Gr: “Right now defense is in a position to paint a very vivid picture of the RDI program” “Accused is the best source of the RDI program” Mentions “damage against the national security interests of the United States”; any further info is likely cumulative. “We will agree to reasonable descriptions of the terms of their confinement. Frankly, I think it has little relevance to the military commissions” Will oppose any requests to delay the actual facts of the case; the events of 9-11. Doesn’t think much additional investigation is necessary.

Pohl: Is this the prosecution’s final position on this? Gr: I don’t make classifications Connell: digs into the ‘need to know issue’

Harrington: re: accused as a source of info – prosecution has burden of proof and has to fulfill discovery. Pros has jumped to the sentencing phase; shows ignorance of capital case process. We’re still at guilt v innocence phase

AE 114   Defense motion for Discovery r/t Buildings in which Accused has been Confined (in context of 525) A3 (Pradhan arguing) has moved to suppress statements made to FBI clean teams. Re: AE 425 “at most, useful in mitigation” “ruling was for post hoc relief; 14 asks for prospective relief” Refers to Agent Perkins stating that she can’t dissociate what she “used” from CIA cables prior to interviewing A3 in 2007. Goes into a long iteration of AE 425 – which has already been decided

AE 524 (more oral argument) Groharing: why was Sept 6 guidance issued? Meant to address CIA personnel associated with RDI program, not CIA writ large. Connell: govt should seek a protective order; unwilling to abide by the guidance. Gr: will likely file a protective order   Pohl: Pros needs to file a protective order by 3/12 (if they choose to); defense 2 weeks to respond; Pros 1 week to reply Gr: Pros may file ex parte

Classified hearings tomorrow (Friday Mar 2)

Filed in: Colleen Kelly, Guantanamo, Guantanamo & Military Commissions, PT Member's Visit and Discussions on Guantanamo

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