Defense Pleads for CIA Evidence, Surveillance Discovery in Sept. 11 Hearing

James Connell, lead attorney for Ammar al Baluchi, wants information on how the CIA cooperated with the filmmakers of "Zero Dark Thirty." 

Guantanamo Naval Base, Cuba – Pretrial hearings in the Sept. 11 military commission resumed this week with the five defense teams renewing pleas for more information on the treatment of their clients at CIA black sites before their 2006 arrival at Guantanamo Bay.

In a spirited exchange on Tuesday, defense lawyers also asked the judge to order prosecutors to provide information on any surveillance that government agencies are conducting on the defense teams, citing a long pattern of intrusions into their work.

The day began with James Connell, the lead attorney for Ammar al Baluchi, asking the judge to compel prosecutors to turn over more details on the communications four CIA officials had with the filmmakers of “Zero Dark Thirty.” The character (“Ammar”) tortured in the film’s early scenes – which attorney Connell screened in oral arguments last year – is based on al Baluchi, who watched scenes from the film in court.

Connell told Army Col. James Pohl that his team needed more details on how his client was treated during abusive black-site interrogations to effectively push for the suppression of statements al Baluchi later made to interrogators at Guantanamo. Connell and the other four teams also want this evidence to argue against the death penalty.

“Those are two of the biggest issues in the case,” Connell said.

The government has acknowledged that defense teams are entitled to some CIA black-site evidence to make these arguments. Though the process is ongoing, defense teams have thus far been disappointed with the information they have received about what happened to their clients at the sites. The teams are not receiving original evidence but instead substitutions and summaries prepared by the government and first submitted to Pohl for approval.

Connell used the monitor to lead the court and viewing gallery through a heavily redacted CIA Inspector General report that examined gifts agency officials received for cooperating with individuals from the entertainment industry. Connell focused on redactions in areas of the report that documented communications and meetings between two agency officials, identified as “A” and “B,” and the “Zero Dark Thirty” filmmakers, writer Mark Boal and director Kathryn Bigelow.

Connell said he believed A and B were in the room while his client was tortured. He said they would need to be called as witnesses.

“These are the closest things to primary sources that exist,” he said.

The redactions were made as part of the document’s release under a Freedom of Information Act, or FOIA, request by the organization Judicial Watch. Prosecutor Clay Trivett said his team reviewed the original report and concluded that the redacted portions were not relevant to the defense.

“That is our position unequivocally,” Trivett said.

Connell argued that Pohl should nevertheless review the unredacted document in camera. He said the government should not rely on the FOIA redactions but instead go through the normal discovery process of providing proposed redactions or substitutions of classified evidence to Pohl.

The hearings scheduled for this week and next constitute the 21st pretrial session in the case against the five men accused of planning and financing the Sept. 11 terrorist attacks. They were arraigned in the Guantanamo Bay courtroom in May 2012.

In a meeting with reporters before the session, Army Brig. Gen. Mark Martins, the chief prosecutor, highlighted progress made in the discovery process for the CIA black-site material. He noted that Pohl had recently approved a number of the prosecution’s proposed substitutions and summaries of evidence after determining the materials provided defendants “with substantially the same ability to make a defense” as if they had the original classified evidence. Pohl also recently rejected two government proposals for certain substitutions of black site evidence; Martins said his team would improve and resubmit the motions.

The prosecution has proposed a March 2018 trial date, which several defense lawyers have said is unrealistic. Last year, Pohl said that he would entertain additional defense discovery motions after the teams had received and reviewed the CIA evidence provided by the government.

On Monday, defense attorneys also argued for medical records from their clients’ time at the CIA black sites.

“We are entitled to see all of this,” argued David Nevin, the lead attorney for accused plot mastermind Khalid Sheikh Mohammed.

Another of the government trial counsel, Robert Swann, said that Pohl already had approved summaries of the medical records as part of the discovery procedures for classified information, and these have gone to the defense.

“There is nothing more to be found,” Swann said.

But Army Lt. Col. Jennifer Williams, one of the military defense lawyers for Mustafa al Hawsawi, asked Pohl to reconsider his approval of the medical summaries. She said that he gave his approval order before the al Hawsawi team had submitted its theory of defense to the judge.

Defense Teams Want Information on Suspected Government Surveillance

Also Tuesday, Judge Pohl heard oral arguments on a defense request that he order the government to provide information on any surveillance being conducted by agencies of the intelligence community on the defense teams – including communications among the attorneys as well as those between the attorneys and their clients.

Air Force Capt. Brian Brady, a new member of the team for Walid bin Attash, referred to the litany of government intrusions regularly recited by defense lawyers in court – such as the earlier presence of listening devices (disguised as smoke detectors) in attorney-client meeting rooms, and the FBI’s infiltration of the defense team for defendant Ramzi bin al Shibh.

Brady and lawyers for the other teams said whether or not prosecutors ever came in contact with any monitored communications, the intrusions have had a “chilling effect” on their ability to establish constructive relationships with their clients. Brady argued that evidence of "outrageous government conduct" would be important to mitigation efforts.

Prosecutor Ed Ryan countered that the government has no discovery obligation to search for the information, which he said has nothing to do with the Sept. 11 attacks or the CIA interrogation program. He reiterated that the prosecution team does not know of any surveillance and has never seen or heard any intercepted communications. He expressed skepticism of any chilling effect.

But James Harrington, the lead attorney for bin al Shibh, whose team was investigated by the FBI, said he could not overstate the severity of the chilling effect of that intrusion. Multiple members of his team became government informants, though the investigation closed in 2015 without any charges being filed.

“This goes to the very integrity of the system,” Harrington said.

Harrington asked that Pohl order a special review team, separate from the prosecution, to look into any government surveillance. The judge did not rule on the matter on Tuesday.