On September 10, the Guantanamo military commissions released a heavily redacted transcript of a closed session in the September 11 case. The subject of the closed session, which occurred on August 19, was filing number AE52. AE52 is a motion by the government whose title is classified. The government filed the same motion, under docket number AE92, in the Al Nashiri military commission. There was a closed hearing on AE92 in June, which I wrote two blog posts about:
The redacted transcript of the Nashiri hearing on AE52/AE92 made clear that the motion was an attempt by the government to narrow the scope of its discovery obligations about the defendants’ torture by the CIA. But what, exactly, the government was arguing for remained a mystery, and the court did not rule on the motion. The transcript of the 9/11 closed hearing provides more clues. It appears the government took the incredible position that evidence of CIA torture was not discoverable at all. Judge James Pohl rejected that argument but did not make any rulings on precisely what evidence about CIA torture the government was obliged to provide defense counsel, about the form it would take, about whether the defense would be allowed to share any of the evidence with their clients, or about whether the public would ever see any of it.
Judge Pohl told counsel:
Understand, I’m not addressing whether or not [redacted]. I’m not addressing whether or not [redacted] is sufficient; I’m not addressing whether or not [redacted] is sufficient. That’s not what I’m doing today….What I’m making a decision now is that [redacted] will be discoverable. So the question only before me is whether this is discoverable or not.
Later on in the hearing the judge had the following exchange with Joanna Baltes, the Department of Justice prosecutor whose main function for the commission appears to be to aid the CIA in concealment of the defendant’s torture:
Baltes: …Do you want me to make a presentation or–
Judge Pohl: No, I’m just saying, the only issue I thought before me was whether or not any of these–any of this information that is in [redacted] or the variations of the theme, [redacted] was discoverable.
Judge Pohl: And I’m simply saying the answer is yes. [Redacted] I’m going to compel discovery on.
Baltes: So you have already made the decision about whether something would be discoverable or you are going to hear from the parties about whether something is discoverable?
Judge Pohl: What I am saying, do you want to be heard about why it is not discoverable?
Baltes: We will rest on our papers as far as why it’s not discoverable.
Pohl later elaborated that he was not ruling on the precise scope and form of discovery; his ruling from the bench “simply puts the government on notice of what their discovery responsibilities of this is because there’s an issue about whether it was even discoverable at all.”
Baltes later restated the government’s position as follows: “I mean, number one, our position is nothing is discoverable; number two, our position is that in the event something is discoverable [redacted].”
The discussion then turned to the defense’s motion to compel the prosecution to provide an unclassified summary of AE52 in order to discuss it with experts. Defense counsel James Connell argued:
At this point…there is no word in [redacted] even–[redacted] is no-named motion. There’s no word of it that is unclassified. If I could use [redacted] and [redacted] in the same sentence to describe the expertise I’m looking for, that would get me pretty much where I need to go.
there is no way to do an unclassified summary of the relief the government is requesting in [redacted]. As counsel are aware, based on briefings in this case, [redacted] is classified. So revealing [redacted] would be revealing of classified information. [redacted] so there is no way to do an unclassified summary [redacted].
When I first wrote about this motion in the Al-Nashiri case, I wrote that the prosecution was not only “concealing evidence of torture. Instead, it is concealing its concealment of evidence of torture.” How the government argues with a straight face that evidence of torture is irrelevant and non-discoverable in a capital case that will rely partly on the statements of defendants who were tortured, I have no idea. How the government argues that this legal argument is, itself, properly classified, I have even less idea. But they don’t need to tell us, really. The redaction makes the issue so opaque that you have to be fairly obsessive to even begin to infer what’s going on–and even if you manage that, it’s almost impossible to write about it in a way that’s not hopelessly confusing to the general reader. I doubt I have succeeded, but I hope this at least helps.
UPDATE: Someone who follows these issues even more closely than I do, whose opinion I greatly respect, suggests that I may be over-interpreting the transcript and raised the possibility that the government’s argument about the limits of its discovery obligations about CIA treatment of the defendants may apply only to the case-in-chief phase of the trial, not the mitigation phase. If so, the government’s position and its concealment of it would remain quite wrong, in my opinion, but somewhat less inexplicable. I am going to search through the transcripts & docket one more time to see if I can find any evidence to that effect. In any case, I want to emphasize that I am making inferences based on an incomplete record. I am doing so because I think it’s important not to let the “concealment of the concealment” strategy completely succeed–but I’m reading tea leaves and I may be wrong.