Zero Dark Thirty Reaches Guantanamo Bay

img_3440Any seasoned litigator knows that there is usually nothing exciting or sexy about arguing pre-trial discovery motions. These motions and the corresponding rulings are vitally important to trial strategy. For instance, a Court’s ruling on a Motion to Supress or Motion for a Protective Order can determine if a key piece of evidence is “in or out” at trial. On rare occasions, these motions can provide drama, tension and excitement. Thursday’s afternoon Guantanamo Bay  session was one of those rare occasions.

Today was a full day in the war court pre-trial hearings in the military commission case against the five alleged masterminds of the 9/11 attacks on the Workd Trade Center and the Pentagon.

Today’s hearings were by far much more intriguing than the previous days of hearings I monitored earlier this week in Cuba. The afternoon session was captivating, as we heard argument on the so called “Zero Dark Thirty” motion, motion AE 195. I will begin with some personal observations then cover the morning and afternoon sessions.

Personal Observations
We entered the courtroom at 8:30. The accused were just finishing up their prayers.

Ramzi bin al Shibh (“RBA”) and Ali Aziz Ali (a/k/a al Baluchi) (“Al Baluchi”) talk frequently during the proceedings. On a few occasions, RBA turned his chair almost all the way around to converse with Al Baluchi.

Al Baluchi places his prayer rug over the back of his chair prior to being seated.

Interesting side note, Walid bin Attash, who was not present for the morning or evening sessions, is missing his right leg. He lost his right leg in 1997, in Afghanistan, while allegedly fighting with the Taliban against the Northern Alliance. He wore a prosthesis in court on Tuesday.

Mustafa Al Hawsawi spent much of the morning session reading a document in what appeared to be Arabic.

The Accused

Kalid Sheikh Mohammad: wore a white headwrap and adorned the same, or a similar, ornate scarf he wore yesterday, with what appeared to be the gold dome of the Al Aqsa temple and the word “Palestine” emblazoned in English.

Walid bin Attash: was not present for the morning or afternoon session.

Ramzi bin al Shibh: wore a brown head wrap and an Al Aqsa scarf.

Ali Aziz Ali (a/k/s Al Baluchi): donned a white cap and an Al Aqsa scarf.

Mustafa Hawsawi: wore a white headwrap and an Al Aqsa scarf.
Morning Session:

The morning session began at 9:03 am and continued the motion 396 hearing by asking questions of Ali Aziz Ali (“Al Baluchi”) counsel James Connell, on which entity should review classified privileged documents. Connell responded that when defense counsel has these documents they submit them to the agencies with interests in the document for review. The agency should review the document, highlight the classified portion, so that it may be redacted and return it to the defense team.

DOJ attorney Clayton Trivett provided the prosecution’s response. Trivett argued that the document must be treated at the highest classification level listed on the document. Judge Pohl questioned Trivett about overclassification and whether it was the government’s duty to properly classify documents. Trivett asserted that if the defense felt a document was may request a classification review.
Trivett also asserted that the government may be able to further support its response at Friday’s closed session, which has been set aside to discuss classified documents.
The Judge then heard arguments on the prosecution’s Motion to Consolidate, AE 397. Essentially, the prosecution has moved to consolidate 14 separate defense discovery motions which request classified documents. 

General Martins 

General Mark Martins presented the government’s case. General Martins is a tall (roughly 6’5″) man with a large presence and a deliberate speaking style. Simply put, he sounds like a prosecutor. General Martins outlined the prosecution’s plan to provide discovery to the defense teams. General Martins proposed that the prosecution would provide classified documents in accordance with the 10 point construct used in a discovery order in a different Commission case. The prosecution will adhere to the federal standards in the Brady and Yunis cases. In short, the prosecution would provide documents 1) material to the defense, 2) relevant, non-cumulative & helpful, 3) material and exculpatory, and 4) documents used by the prosecution.
Martins planned on providing the following information for each of the accused regarding the CIA’s Rendition, Detention and Interrogation (“RDI”) commonly referred to as the “torture” program:

A. Timeline of sites held;

B. Description of transport(s);

C. Photos showing conditions of confinement;

D. Medical, guard force and interrogator information;

E. Standard Operating Procedures (“SOPs”) for handling High Value Detainees (“HVDs”);

F. Employment and training records for guards and staff;

G. All statements obtained from interrogations;

H. Legal reviews and requests to use enhanced interrogation techniques (“EIT”);

I. Copies of documents memorializing EIT requests.

The prosecution set time lines for providing the documents. Further, the prosecution sought to be able to provide summaries of documents, if possible. In such an instance, the original documents would be provided to the Judge to review along with the proposed summary. If the Judge deemed the summary suitable, the summary would replace the classified document. General Martins also emphasized that the prosecution is still reviewing and identifying documents to turn over in discovery. 

Defense Responds

Al Baluchi’s counsel, Mr. Connell responded first. Connell asserted that the defense is disadvantaged here more so than in a normal trial since the government decides what it produces, and whether that document is material to the defense. Connell and other defense counsel argued that the prosecution should submit cumulative evidence to the judge to determine if that evidence is relevant. On an aside, the defense provided its theories of defense to the Judge in a sealed motion previously in the litigation. The prosecution is not privy to those theories of defense. Thus, the defense contends that the Judge is in a better position to determine what is cumulative or material to a defense than the prosecution is.
The Judge agreed to hear further arguments on the consolidation motion after lunch.

Afternoon Session:

img_3439The session began at 1:30. After hearing some additional oral arguments from the defense regarding the proposed discovery plan, the Judge turned his attention to a motion included in the consolidation plan, Motion AE 195. Motion AE 195 is officially titled the “Motion to Compel Communication Between the Government and the Zero Dark Thirty Filmmakers”. This motion has been nicknamed the “Zero Dark Thirty” motion and the information and arguments we heard regarding the motion are unclassified.
Al Baluchi’s counsel, James Connell argued the motion. Connell asserted that the CIA provided access to at least 2 CIA agents, one male, one female, to the writer, Mark Boals and director, Kathryn Bigelow, of the movie Zero Dark Thirty. Access to these agents was granted, despite the fact that the writer and director did not posess security clearances. In fact, at an awards ceremony, the filmakers thanked the CIA Connell argued that the first twenty five minutes or so of the movie show a character based on the events that occurred to Al Baluchi. Connell played clips from the movie showing a character named “Ammar” being placed in a box, strung up by his arms, forced to stand on a small mat for hours at a time and doused with ice water in a mock waterboarding. The courtroom was captivated by the scenes played on the screen. The 4 accused in the courtroom looked away from the screen. Al Baluchi, in particular, stared at a blank courtroom laptop and did not watch the movie scenes.

Department of Justice Attorney Jeffrey Groharing objected that this “was a film, not real life” during the playing of one of the clips, but was overruled. Groharing admitted, when asked by Judge Pohl, that neither the writer nor director had appropriate security clearances.

Many of these details remained classified and, Connell contended, could only have been provided to the filmmakers by the CIA. The movie was released in 2012 and shortly thereafter Justice Watch filed freedom of information act requests for documents linking the CIA and the film. From those information requests, the defense team learned of the existence of several key communications.

First, approximately 150 redacted emails were sent to / from the CIA and the filmmakers. Second, two Inspector General reports were released on the matter. One of these reports included the CIA agents statements to filmmakers. Third, an un-redacted CIA memo described a meeting between the CIA and filmmakers. Connell argued that filmmakers were granted access to these documents and, to date, had not received responsive documents to Motion 195.

It was a gripping and intense day in the courtroom today. While the movie clips were from a fictional Hollywood drama, knowing that one of the principals on whom the events were based made the torture scenes seem much more powerful.

NGO Photos

After the hearings, the NGO Observers took a few group photos. We headed to dinner and reflected on the events that transpired in the courtroom.

By Paul Schilling, JD, Indiana University McKinney School of Law; Indiana Deputy Attorney General
  

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