The retirement of Army Brig. Gen. Mark Martins, once set for the end of this month, has been deferred for two years.
Guantanamo Naval Base, Cuba – Lawyers defending the accused Sept. 11 plotters continued to push this week for more details about the overseas CIA black sites where they say their clients were tortured for multiple years before their arrival at Guantanamo Bay in 2006.
Among the critical pieces of information, argued attorney Alka Pradhan on Thursday, is the location of the sites themselves, which she said would help find local witnesses, learn physical attributes of the properties and establish a chronology of her client’s time in CIA custody across multiple black sites. Defense attorneys do not have confirmation of where the black sites were located, or what might be remaining in these locations.
“We want the tools to put on a defense – a proper defense,” said Pradhan, who is a civilian lawyer for defendant Ammar al Baluchi. “Locations really are the biggest piece of the puzzle.”
The chief prosecutor of the military commissions, Army Brig. Gen. Mark Martins, said the government would not provide the locations because it already has provided substitute forms of evidence on the topic. The judge, Army Col. James Pohl, signed off on the substitute evidence as adequate, concluding that it put the defense teams in “substantially” the same position as if they had the original classified information. Martins spoke briefly, deferring the bulk of his arguments for a closed session on Friday.
In response, Pradhan referenced the tense dispute from the pretrial session in late August, when defense teams claimed that the government had improperly destroyed a CIA black site they had hoped to access. This led multiple teams to argue that Pohl and the entire prosecution team should be removed from the case. The judge has not ruled on those motions.
Prosecutors argued then that only after Pohl had approved a photographic rendition of the site as a substitute was it “decommissioned.”
On Thursday, Pradhan argued that the site's unavailability increased the importance of learning the actual locations of all black sites for defense efforts to “reconstruct” as best as possible the years of torture and interrogation endured by their clients.
The current one-week October session marked the 25th pretrial session in the case, dating back to the May 2012 arraignment. In addition to al Baluchi, the defendants include alleged plot mastermind Khalid Shaikh Mohammad, Walid bin Attash, Ramzi bin al Shibh and Mustafa al Hawsawi. All face the death penalty for their alleged roles in the attacks.
Another important development during the session was the news that the retirement of Martins – the chief prosecutor since 2011, who was due to retire at the end of this month – has been deferred until Nov. 1, 2019.
“While he, like any other military officer, is subject to reassignment at any time to meet the needs of the Department of Defense, the Army's action serves to retain him as chief prosecutor for at least another two years,” Air Force Maj. Ben Sakrisson, a Pentagon spokesman, said in a statement.
Consistent with past sessions, Martins said this week that the government will not use information from black site interrogations to prove their case at trial. Nevertheless, the defense teams are entitled to some evidence from the controversial Bush-era program to prepare arguments. Defense lawyers believe that the severity of past torture taints statements the defendants later made at Guantanamo Bay, and that unsettling details from the black sites will strengthen arguments that their clients have already been punished and that the U.S. government lacks the moral authority to execute them.
Prosecutors contend that the government has complied with its discovery obligations on the CIA black sites by turning over to the five defense teams some 14,000 pages of evidence on the topic – most of it Pohl-approved summaries and substitutions of the original classified evidence, across ten different categories.
Defense teams say the 14,000 pages constitute a tiny fraction of the six-million pages that underlie the report on CIA torture by the Senate Select Committee on Intelligence, which released a redacted executive summary of its findings almost three years ago.
James Connell, the lead attorney for al Baluchi, added after Thursday’s session that all the substitute evidence on CIA black sites has had dates, locations and identities of persons removed.
“Many pages and little information,” he said.
Earlier this week, defense attorneys made other efforts to fill gaps they see in the CIA discovery provided so far. Pradhan argued that the defense teams were entitled to blueprints, designs, work contracts and other details of the black sites. Lawyers also pressed for the metadata – electronic information that can include time-stamps, user identification and GPS data – associated with the printed photographs the government provided of their clients at the black site locations.
Air Force Capt. Brian Brady, a military lawyer for bin Attash, portrayed the government’s discovery approach as “delay, degrade, destroy.”
Government trial counsel Clay Trivett countered that, though the government has metadata from the photographs, the defense teams have not established that it is relevant to the preparation of the defense.
The process of a judge approving substitutions and summaries of classified evidence in the military commissions is modelled on the one used in federal court under the Classified Information Procedures Act, or CIPA. One important difference is that commission rules state that judicial orders resulting from this process are “not subject to a motion for reconsideration by the accused.”
The outcome of defense efforts seeking additional evidence beyond the 14,000 pages will hinge on whether Pohl views their pending and future pleadings as motions to reconsider his earlier orders – or as new motions to compel evidence outside the categories of information provided by the government. Regardless, defense lawyers contend that the prohibition on reconsideration is blatantly unconstitutional.
The dispute over discovery frames competing defense and prosecution views on progress in the case. Ed Ryan, one of the prosecutors, renewed his push this week for Pohl to set concrete deadlines leading to a trial date. Defense lawyers have said it is unrealistic to a trial date with so many pending discovery requests and motions.
Ryan said defense discovery requests were “stunningly overbroad."
“There is no limit to the amount of imagination that's put into what they think they want,” Ryan said. “They will never give their permission to try this case.”
The parties did make progress this week establishing the parameters of one of the most important hearings of the pretrial phase – a so-called “personal jurisdiction” hearing at which the government has to establish, by a preponderance of the evidence, that the defendants meet the 2009 Military Commissions Act definition of “alien unprivileged enemy belligerent.” Each defendant has the right to challenge this jurisdiction. So far, al Hawsawi and al Baluchi have made such challenges, while the other three defendants are waiting for additional discovery from the government before doing so.
Prosecutor Trivett told Pohl that the government would prove the defendants supported hostilities against the U.S. and were part of al Qaeda – two ways in which the defendants fall under the 2009 act’s definition. The government plans to call a handful of witnesses, including the individuals who interrogated the defendants once they arrived at Guantanamo Bay.
Connell, for al Baluchi, has much bigger plans for the hearing by calling about 130 witnesses, including a bevy of former high-profile Clinton and Bush administration officials like George Tenet and Donald Rumsfeld. Because jurisdiction of the war court requires the existence of hostilities – an armed conflict governed by the laws of war – Connell plans to prove that the U.S. was not at war with al Qaeda at the time of the Sept. 11, 2001, terrorist attacks. He said the armed conflict began the following month, when the U.S. invaded Afghanistan.
Connell also plans to challenge testimony about what his client told interrogators at Guantanamo. In doing so, he plans to call witnesses with knowledge of his client’s torture as well as experts on the effects of abusive treatment in custody.
The government has objected to most of Connell’s planned witnesses. Prosecutors have also objected to the one witness sought by the al Hawsawi team, a law professor expert in the laws of war.
Trivett told Pohl that the war began when Osama bin Laden declared war against the U.S. in 1996. He said the dispute over when hostilities began was better left for trial, given that the government has to prove the existence of hostilities as an element of the crimes.
For the pretrial hearing, he argued that only one law expert was needed to assess the factual history of a protracted conflict between the U.S. and al Qaeda.
“That’s you,” Trivett told Pohl.
The judge indicated that the personal jurisdiction hearing could start at the next scheduled session in early December.
*Editor's Note: In past stories, Lawdragon spelled the defendant's name as Khalid Sheikh Mohammed.