“Your Drones! They’ll Have to Wait Outside!”

Much hubbub has been made recently over whether police use of drones would be an unacceptable infringement of privacy. In fact, lawmakers in some minor jurisdictions have gone so far as to ban all drones.

Caring little for fourth amendment questions, myself, especially in the domestic law enforcement context, I’ll only offer one observation: the police have been oggling you from above for decades.

There is a precedent well known to every law student that allows the police to use aircraft for observation of the areas of your property that they may not be able to see from the street. In California v. Ciraolo, 476 U.S. 207, the Supreme Court decided that police use of airplanes to “search” your backyard was not a breach of your fourth amendment right to be free from unreasonable searches. According to the Court,

“The Fourth Amendment simply does not require the police traveling in the public airways at [a legal] altitude to obtain a warrant in order to observe what is visible to the naked eye.”

Now, back to drones: the only technical difference between drones and ordinary aircraft is the location of the pilot. It is not at all clear why this difference would matter to your sense of privacy. Maybe electronic eyes burn that much more on the back of your head? It’s doubtful the Supreme Court would make that kind of distinction.

However, there is another effective difference: the ease and low cost of drones will greatly increase the amount of surveillance that the police can conduct. And being watched only when the police determine it’s worth the exorbitant cost may seem like less of a burden on your backyard activities. So then that must be what people are worried about.

But if it is not the technical differences between drones and police helicopters that raise the specter of a police state, then the efforts to limit aerial surveillance should not be limited to unmanned overflight. If it decides to craft a new policy for aerial surveillance, the legislature should ensure that it be platform-neutral: aerial surveillance is either intrusive or mundane. It can’t be both, depending on where the pilot sits.

Paul Taylor, Senior Research Fellow
Center for Policy & Research

The 9/11 Five’s Defense Counsel Granted Limited Visitation Privileges to “Camp 7″

Judge James Pohl has granted the defense counsel in the 9/11 military commission limited access to Camp 7, the top secret prison home of the alleged mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and his four co-defendants.

The defense counsel teams initially requested a 48-hour access stint, which included the ability to sleepover with their clients once per month. The Prosecution proposed a cursory two-hour tour of Camp 7.

On Tuesday, Judge Pohl ruled that, for one time only, up to three members of each defense team could visit their respective clients in Camp 7 for no longer than 12 continuous hours. The visitation privilege was limited to the hours between 6 a.m. and 9 p.m.

No doubt about it: this is a big deal. Camp 7 is one of the most top-secret facilities on Guantanamo Bay Naval Base, Cuba. Even its very location is classified. Not to mention, this ruling comes one week after Camp 7 military police ransacked some of the defendants’ legal bins and seized already screened and approved personal items. The defense was in uproar last week, interpreting this as another attempt by the government to intrude on attorney-client privileged communications.

While the defense teams will be permitted to take notes, make sketches, and pictures during their visit, it is no surprise that those materials will be subject to inspection.

Commander Ruiz Angers Admiral MacDonald

Recapping the fourth and last day of last week’s 9/11 military commission hearings at Guantanamo Bay, presiding Judge James Pohl promised to address “the bin issue” after lunch.

But first, the court heard testimony from Admiral Bruce MacDonald, the Director of the Office of the Convening Authority and the presiding Convening Authority for the Office of Military Commissions. Commander Walter Ruiz, defense Counsel for Khalid Sheikh Mohammed’s co-defendant Mr. al-Hawsawi, argued that MacDonald inappropriately approved the 9/11 five’s eligibility for death sentences before each had been provided with an appropriate amount of informed legal advice.

A veritable screaming match erupted when Ruiz rhetorically asked, “Admiral, can a capital defense lawyer—who doesn’t have a translator that speaks the defendant’s language, who doesn’t have a mitigation expert, and who cannot communicate in writing with his client—present adequate mitigation evidence?”

Ruiz explained that he was without the help of a mitigation specialist—a defense team’s psychologist of sorts, who possesses clinical information-gathering skills enabling him or her to extract from the defendant sensitive, sometimes embarrassing and often humiliating evidence that will shape a defense attorney’s themes and theories of the case. Ruiz argued that while it is true that MacDonald had approved a particular mitigation specialist, he was of no beneficial use because MacDonald refused to approve his security clearance. So, although Ruiz’s mitigation specialist could speak to Mr. al-Hawsawi, he could not speak with him about any of the pressing classified issues—like his experience with “enhanced interrogation techniques.” Also, Ruiz was without an approved personal translator, and was instead relegated to use a cadre of government-provided translators that had independent contracts with JTF-GTMO (Ruiz disputes having rejected eight translators).

Approaching lunch break, Judge Pohl asked MacDonald if he would agree to be interviewed by the defense. No, he answered. But then objected to interviews without a government official present.

Ruiz turned to sit down from the podium, but quickly returned as if he had forgotten something, and added with some sarcasm, “Judge, I will simply indicate as an officer of the United States Navy, I am a member of the government.”

“Commander, I’m more than aware of that,” Judge Pohl said, while nodding and smirking.

Admiral MacDonald will be recalled later in the hearings.

“The Bin Issue”

Ms. Cheryl Bormann, Learned Counsel for co-defendant Mr. bin ‘Attash, announced at the end of Wednesday’s hearing that when her client, Mr. bin ‘Attash, lead defendant Mr. Khalid Sheikh Mohammed, and another co-defendant returned to their cells after Tuesday’s session, their legal bins containing attorney-client privileged mail had been ransacked and some items were seized. Bormann summoned Navy Lieutenant Commander George Massucco, Assistant Staff Judge Advocate for JTF-GTMO, to take the stand.

Massucco, whose name was laughably butchered a dozen times before he was forced to spell it out for counsel, confirmed that there had been a routine inspection and items were seized, but the SJA Office has since determined that the items would be returned to the three co-defendants. He informed the court that the seized documents, mostly photos (one of the Grand Mosque in Mecca), were seized because they were improperly stamped and without initials.

Bormann alleged that the inspection protocol and stamping system was flawed in its practice. The guard staff conducting inspections, she explained, were re-screening documents that had already been approved by J2—documents that had been in the defendants’ cells, in some cases, for over a year and half. Having passed thousands of inspections since 2011, it is strange, she said, that they are being seized now. Her concern heightened when she learned that  a turnover in the guard force—what Massucco called an Army-Navy “rip”—was taking place.

“But as I see it, it’s not going to really matter who does the inspection if the inspection keeps happening. The seizure of the same mail, the same materials over and over and over, whether that seizure is done by a PRT person or whether that’s done by the guard force— it boarders on harassment,” Bormann pleaded.

“I got it,” Judge Pohl said.

Chief Prosecutor, Brigadier General Mark Martins tried to cool the tension radiating from the defense’s side of the room. He explained that the inspection was routine, and the defense counsel teams unanimously agreed that such a procedure is reasonable and necessary in order to protect against a legitimate national security risk. The seizure, he explained, was a competent response to the same protocol that has been used by the “old hands” and is currently being taught to the “new hands.”

Bormann demanded the need for some common sense legislation. Yet Judge Pohl responded, “And I think, as you recognize, you said you can’t legislate common sense or order common sense; all you can do is the best you can with what you’ve got…. And you’ve got to balance [the legitimate need for security] obviously and minimize the intrusion to privileged materials.”

The defense proffered an off-the-cuff proposal for “common sense legislation”: that all documents be stamped properly in accordance with JTF-GTMO SOP and all inspections be performed under the same accord; and that the defendants’ legal bins only be inspected for illegal contraband (i.e. weapons), not for the content of the items contained therein; and if items are seized, the Assistant SJA should refer to defense counsel for reasonable clarification.

Moving forward, the defense has been given 7 days from last Thursday to submit a formal proposal, and the prosecution will be given 7 days to respond, although they have already made it clear that a motion to grant AE 018 would be their position.

In the meantime, the prosecution agreed to have all sixteen “smoke detector” microphones removed from Echo II.

Josh Wirtshafter is a fellow at the Center for Policy and Research at Seton Hall University School of Law student. He is a member of the Class of 2014 and is a 2011 graduate of Franklin & Marshall College, where he majored in Religious Studies.

Redefining Victory in Afghanistan

Sometime in the last twelve years, someone moved the goalposts. We’ve gone from wanting to crush the Taliban like the backwater illiterates they are, to wanting to abide their trouble while we slowly secure the country.

And according to then-outgoing commander of our troops in Afghanistan, General John Allen, “This is winning, this is what victory looks like.”

What he did not add was that winning would look like this for years to come. 2014 has come to be seen as what one Afghan official has called a “magical date”, a make-or-break date by which the conflict will effectively be determined one way or the other. But the truth is that there is little reason to believe that it will all be sorted out by then.

This is a sad result for the most powerful military the world has ever seen, but realizing the limits of our ability to drive the outcome is an appropriate and helpful adjustment to the factual situation.

The time in which a decisive battlefield victory over Taliban was possible ended sometime in late 2001 or very early 2002, and was given up when we decided not to press Pakistan to seal off its border (or allow us to do so). Since then, the US and the Afghan government it helped into being have been engaged in a cross-border insurgency, and it is by the fundamental laws of insurgency that the conflict will be won or lost.

We need to abandon the naïve idea that we can crush the Taliban on the field of battle, and realize the truth that has been recognized by the Taliban since the beginning: winning will be determined by which side can be relied upon to provide basic governmental services like security and justice.

Chart-Afghan Issues

And while some may have read my earlier post as entirely pessimistic, there is reason to hope that Afghanistan is at least generally headed in the right direction. First, Afghans themselves are making the investment, in very real terms. According to General John Allen:

“[E]very Sunday when we’ve read the names of our Coalition dead, the Afghan National Army steps up to recognize the sons of Afghanistan, also who have sacrificed in this conflict.  And every week there are 25 or 35 or 45 killed in action and 50 or 60 or 70 wounded.  There can be no doubt that Afghanistan is investing in its own future.  The cost is paid in the blood of their finest young warriors.”

A report by CSIS indicates the total ANSF deaths are now well over 4,000, and it seems likely they are growing faster than those of ISAF.

In addition, the Afghan Army have been largely successful in keeping civilian casualties to a minimum, despite the increased combat pressure they are bearing and the fact that are not yet as professional as their mentors. According to the CSIS report:

“Between 1 January and 30 June, UNAMA documented 20 civilian deaths and 12 injured from search and seizure operations by Pro-Government Forces, a decrease of 27 percent compared with the same period in 2011. This is consistent with the downward trends documented in the same periods in 2009, 2010 and 2011. Civilian casualties as a result of ANSF and ISAF escalation of force incidents continued to decrease in 2012.”

The Afghan Government is also working to reduce its reputation for brutal interrogation and detention. For example, in response to recent reports detailing the prevalence of torture in Afghan detention centers, President Karzai has ordered that all interrogations be video recorded to ensure that the detainees are properly treated.

Such hard-fought successes can be short-lived, as can be seen in Karzai’s ban on ANSF calls for close air support in residential areas in response to an incident that caused severe collateral damage. However, this may be a good development in the long run. Remember that the Taliban cannot be defeated on the field of battle: the flip-side of that coin is that the Government can lose the population’s support by a too-aggressive approach. The French learned this same lesson in Algeria, where their brutal tactics won them a very shallow and self-defeating victory over their insurgent foes. Reducing civilian casualties is an important component of providing civilians a sense of security.

The other major good that the government must provide to the people in order to bolster its legitimacy and weaken the Taliban’s appeal is in the area of governance, justice and civil conflict resolution. Here, the vast majority of the damage done to its reputation has been entirely self-inflicted: endemic corruption in the courts and police has caused many in the south to turn to the Taliban to help them resolve their disputes with one another. While the Taliban verdicts are swift and harsh, they are also perceived as untainted by biased and corruption.

Unfortunately, there is little indication that the highest levels of the US or Afghanistan governments are very interested in tackling the corruption issue. Few official statements by either government ever mention the issue as more than a passing reference. Furthermore, little progress has been made in the past decade. Indeed, a recent report by the UN Office of Drugs and Crime found that while the number of Afghans who have to pay bribes has been dropping since 2009 (from 59% of Afghans to a mere 50%), the total cost of the corruption has risen 40%. And those who find themselves in the position where they must pay a bribe are subjected to higher bribes more often.

While there is good news in that there has been a 10% drop in the incidence of police bribery, this is counterbalanced by the fact that there has been no improvement in the judicial branch. Indeed, while the reporting rate of bribery appears to high by international standards, only one fifth of these reports lead to any investigation.

Since it’s speedy and reliable night courts are the one of the Taliban’s greatest selling points, it is imperative to Afghanistan’s long term stability that the epidemic of corruption be brought to heel. While it would be pie in the sky to think that success ending corruption could be quickly and easily be achieved by any means, the Afghan government and the US as its partner must secure steady and visible progress in reducing the corruption that impacts the day-to-day lives of Afghan citizens. This is perhaps especially important in the sectors that are mandated to combat corruption, such as the police and courts.

Thankfully, the lower levels of the US government have begun to take some steps in this direction. In the last few years, the Special Inspector General for Afghanistan Reconstruction (SIGAR) has quietly begun to tackle the US military’s enormous contribution to the climate of corruption (as well as some of its absurdly wasteful practices), while USAID’s Assistance for Afghanistan’s Anti-Corruption Authority program has helped Afghanistan develop its High Office of Oversight and supported civil watch-dog groups. Clearly, much more must be done, but it is precisely these sorts of quiet efforts that will prove most effective in the long run.

Pakistan’s Cooperation

Even if the Afghan government is able to reduce the corruption that encourages support for the Taliban, the insurgency will continue to drag on for years so long as they have a sanctuary in which to rest, recover, and prepare for the next operation. This is even more true if they may continue to rely on a state sponsor for support. Because of this, Pakistan plays a pivotal role in determining the longevity of the Taliban movement.

Thankfully, here too there is some reason for hope. With its increased internal instability, Pakistan has recently changed its strategic goal, limiting their references to “strategic depth” (read proxy government in Afghanistan) and calling instead for “power sharing” between the Afghan government and the Taliban. With its interest in stability along its border, the more Pakistan can be convinced that the Afghan state will not crumble in the wake of the US withdrawal, the less support it will provide to the opposition.

As with governance and security, progress in this regard will likely come in small and barely-noticeable form. It will not come as an announcement of a new policy or realignment on the part of Pakistan, but as changes in the attitudes of Pakistani leadership, declines in public support for the Taliban or in opposition to the US, or incremental reduction of support from the military.

This is What Victory Looks Like

Afghanistan has not been a stunning success by any metric. It was badly bungled, then pushed onto the back burner for years. By the time Americans noticed that it was still going on, the Taliban had regained much of their previous strength and had plenty of opportunity to hone their skills.

Yet it may yet be true that, from our current vantage point, this is what success looks like. Securing Afghanistan will require the long and tiring process of building state legitimacy while wearing down, coopting, and waiting out the insurgency.

“[O]ur victory here may never be marked by a parade or a point in time on a calendar when victory is declared.  This insurgency will be defeated over time by the legitimate and well-trained Afghan forces that are emerging today, who are taking the field in full force this spring.  Afghan forces defending Afghan people and enabling the government of this country to serve its citizens.  This is victory.  This is what winning looks like, and we should not shrink from using these words.”

General John Allen

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Guantanamo Military Tribunals: A Soup Of Sound

2L student Josh Wirtschafter is in GTMO this week observing the military commission hearings.  His observations from the Tuesday, February 12th hearings are printed below.

Although unclear at times, the issue for the second day of pre-trial hearings in United States v. Mohammed, et al., concerned the extent to which “The Man Behind the Curtain” could monitor attorney-client and attorney-attorney privileged communications from both inside and outside the courtroom. Three witnesses testified to this issue. Based on what was said—  and sometimes what was not said— tremendous light was shed on what appears to be the potential for serious breaches of attorney-client and attorney-attorney privileged communications at Guantanamo Bay.

And the Gates Are Open…

The morning was a techie’s fantasy. Mr. Maurice Elkins, the program and design manager of the video and audio recording system in the courtroom, testified as to the specifics of the in-court microphone system. Ably guided by Mr. Connell, defense counsel for Mr. al Baluchi, Mr. Elkins drew for the record a distinction between “gated” and “pre-gated” audio. The former is the filtered version of speech heard in the courtroom and disseminated to the press, nongovernmental organizations, and victim’s families in the gallery. The filter is the “gate,” which only opens when a speaker’s decibel level exceeds a certain threshold. Basically, the gated feed is the sound of those speakers who intend to be heard—those who speak at a normal decibel, not a whisper. On the other hand, the “pre-gated” audio feed is all of the other noise absorbed by the 27 hypersensitive microphones in the courtroom—everything above, below, or at normal decibel levels— which is to say: every whisper, side conversation, or pin drop in either the front or in the back of the room; even the whispers among defense counsel. It is a soup of sound— but one filled with privileged morsels.

Mr. Elkins explained that the pre-gated feed is sent only to the court reporter, the interpreters, and to the Original Classifying Authority (OCA). He further clarified that the court reporter was the only one of those three, to his knowledge, to have For The Record Gold (FTR Gold) software, which has recording and untangling capabilities. Meaning, the court reporter could, if he or she was so inclined, record the pre-gated feed, isolate a particular sidebar conversation, focus in on the one or more microphones picking up that conversation, and increase its sound. Virtually any and all speech in the court is potentially understandable if one has access to the commercially available FTR Gold software.

What Mr. Elkins seemed to be saying is that in court, systemically, only the court reporter is given access to FTR Gold. Unsettlingly, Mr. Elkins testified, however, that “he does not know” what OCA’s capabilities are outside of the court. Presiding Judge James Pohl rehabilitated Mr. Elkins on this point, after Elkins had exhaustingly testified to that exact point—that “he does not know!”

At the climax of Elkins’ frustration, in attempting to prove that he had changed the in-court audio system from “push to mute” to “push to talk,” so as to lend some assurance to the defense attorneys that they could converse with each other and their clients unrecorded if they so desired, Elkins explained, “The distinction with this microphone from which I am speaking at is I have to push it to talk or I have to push to untalk.” Dramatically, Elkins released the talk button, expecting his voice to be cut off from the gallery, but in actuality, I could hear him say, loud and clear, “It’s not pushed right now. So you can hear me inside the courtroom but nobody else can hear me.”

Seemingly, the assurances to the defense counsel were overstated, audibly, and if the “Man Behind the Curtain” had even the Walmart version of FTR Gold when receiving the pre-gated feed, his/its eavesdropping capabilities would be virtually absolute.

Echo II: The Attorney-Client Meeting Room Where the Microphones Don’t Say “Speak into the Mic”

Captain Thomas J. Welsh, Staff Judge Advocate (SJA) for Joint Task Force at Guantanamo Bay Naval Base was brought to the stand next. Welsh testified about his knowledge of audio monitoring capabilities outside of the courtroom—specifically in Echo II, the principle attorney-client meeting room. Among other things, he denied that the microphones in Echo II were concealed. His reasoning: just because it looks like a smoke detector does not mean that it is a smoke detector. Eventually he conceded that Echo II’s microphones are far from being categorized as readily identifiable recording devices, and that they did not look like the “speak into the mic” microphones in the courtroom.

Capt. Welsh testified that upon first assuming his position as SJA, he was unaware that Echo II had audio recording equipment. But in January 2012, Welsh walked-in on a law enforcement agent in an annexed control room listening to the conversation between parties (defense, detainee and prosecution) to the proffer of a plea deal in Echo II. On a number of occasions, Welsh essentially testified that he was surprised and concerned with what he had seen, and further concerned at the prospect that attorney-client privileged communications might be listened to. But when he brought his concerns to the attention of the system operators, he was advised not to worry because “they” certainly do not listen in on attorney-client communications there—only proffers and meetings with delegates from foreign agencies. Without a log system of the audio system’s use, Welsh’s inquiry stopped there.

If Welsh was as surprised as he said he was— and as concerned as he should have been—upon discovering the infrastructural capability for attorney-client privileged communications to be breached, one might think (or at least have hoped) that he would have conducted a more thorough investigation into the history and use of the Echo II microphones.  As a Staff Judge Advocate, entrusted with the duty of military justice, one might ask where his duty lies.

A search of his emails for purposes of this hearing—where he limited the search to “monitoring” and perhaps “audio”— brought up a gem.

In an e-mail dated May 8, 2008 in anticipation of a press conference, John Eskelsen, an assistant judge advocate, asks his boss, Captain McCarthy, Staff Judge Advocate  (a predecessor of Capt. Welsh) an interesting question.

The Defense Counsel questioned Capt. Welsh about the email while proffering both a question and what may be an explanation:

Question:  “…it says that if you, meaning Captain McCarthy, the prior SJA, need an affidavit from me that we did not keep sound recordings, I’d be happy to give it.”

Capt. Welsh: “Yes, it says that.”

Question: “And would you agree with me that the implication of that statement is that sound recordings are made but not kept?”

After some examination Capt. Welsh stated that he “would leave it to the judge to read what he wants to read into it.”

The Logistics Order Has A Language Specification Requirement For a Reason

Mr. James Harrington, Learned Counsel for co-defendant Ramzi Binalshibh, unraveled a dispute over the intended enforceability of the 2011 Logistics Order. This Order, drafted by Captain Welsh, approved by Welsh, and intended to be enforced by JTF-GTMO, set forth the updated standard operating procedures that defense counsel must obey prior to meeting with their clients in Echo II.  One of the many detailed procedures requires defense counsel to alert JTF-GTMO of what language they intended to speak during the meeting. Welsh brushed off the seriousness of this provision, saying that it is never enforced in practice.

It is obvious, however, that the only way to enforce this provision would be for the government to hire a translator to listen-in on the proceedings. Without any tracking or logging system attached to the use of the audio recorder in Echo II, the government could have been listening-in all along. It also calls into question whether they needed to know what language defense counsel would be speaking, in order to get a translator to listen in and monitor the conversation if the language chosen was something other than English.

Learned Hand Would Have a Problem with this…

This case has become chock-full-of-sneakiness. Or maybe concealing its intelligence-gathering mission has always been JTF-GTMO’s modus operandi. But it was not until now—the unveiling of the gated and pre-gated audio feeds, the smoke detector-looking microphones, and the curious SOP Orders—that the government’s subterfuge has become so public. Yet, in this case, the government has continued to argue that such intelligence-gathering motives have not resulted in an intrusion upon attorney-client or attorney-attorney privileged communications. Rather, that it is a by-product of the defense’s illusions and paranoia.

However, if intelligence-gathering is truly not an issue of concern, then why not appease the defense? Why not eliminate the pre-gated feed system? Why not completely remove the microphones in Echo II? As Judge Learned Hand might say, the solution is nearly costless.

Apparently, it is not that simple.

What is a High Value Detainee (HVD)?

Lieutenant Colonel Ramon Torres was the last witness called to the stand. Despite questions I and others might have about his testimony as a result of his having largely discredited himself on numerous occasions, he introduced an interesting topic— one which I would like to indulge for an important moment or two. Lt. Col. Torres stated that during his time at Guantanamo Bay he was, for all intents and purposes, the mailman for the “high value detainees” (HVDs). It was clear from present context that the HVDs he was referring to were Khalid Sheikh Mohammed and his four co-defendants. However, the classification for HVDs is not so neatly quartered. For instance, the present accused were transferred to Guantanamo Bay in September 2006 along with nine other detainees also labeled HVDs, though these nine are of far lower or even nonexistent intelligence value.

If these detainees have little or no intelligence value, then why is it that they have become muddled in the same category as the alleged masterminds of the 9/11 attacks? Importantly, these other nine detainees, though not sharing the intelligence value of the alleged masterminds of the 9/11 attacks, do, however share something with those on trial now: They were all exposed to CIA Dark Sites and those site’s classified personnel, interrogation tactics, location, etc. Seemingly then, criteria for being an HVD can simply be being a DSS (Dark Site Survivor).

Sub-classifying detainees according to more narrowly tailored intelligence qualifications could be good starting point for improving the system’s accuracy, and even lend some level of explanation for the military commission process and what appears to be rampant eavesdropping. Again, a more accurate classification of the nine non-mastermind, little or no intelligence value, detainees might be— instead of HVDs, Dark Site Survivors (DSS). Or, in the very least, we can hyphenate the status to show the real issue of concern: HVD-DSS.

Josh Wirtshafter is a fellow at the Center for Policy and Research at Seton Hall University School of Law student. He is a member of the Class of 2014 and is a 2011 graduate of Franklin & Marshall College, where he majored in Religious Studies.

KSM, Co-Defendants’ Legal Mail Ransacked And Seized

2L student Josh Wirtschafter is in GTMO this week observing the military commission hearings.  His observations from Wednesday’s hearings are printed below.

Wednesday’s pre-hearings in,United States v. Mohammed, et al., ended in soap opera-esqe drama. The last motion of the day was postponed until Thursday morning when it was announced that the alleged mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and two of his co-defendants, had returned to their cells after yesterday’s session to find their attorney-client mail ransacked— and much of it seized.

The news of the ransacking and seizure of attorney-client mail was apropos, given the morning testimony of Lieutenant Alexander Homme, who detailed the attorney-client mail screening process. Pursuant to a Staff Judge Advocate (SJA) Order, it was Homme’s job to screen mail both to and from detainees in their cells as well as in Echo II, the attorney-client meeting room. In short, Homme explained that non-legal mail would be separated from the legal mail, which was vaguely defined as any hand-written or typed documents that were prepared by the attorney, and that legal mail was allowed to pass, non-legal mail was subjected to seizure and further review. Eventually, however, it became clear that legal mail had a somewhat narrow definition, as even exhibits attached to an amicus brief, for example, are not guaranteed to be construed as “legal” for these purposes and thereby pass to a detainee.

Rejected non-legal mail would be seized and delivered to J2, the intelligence agency of Joint Task Force (JTF) at Guantanamo Bay, for inspection. Ms. Bormann, Counsel for Mr. bin ‘Attash, evidenced the difficulty of this process as she recounted, and Homme confirmed, four occasions where he rejected her attempt to deliver legally relevant documents to her client (an Arabic translation of the screening order, the book “Black Banners” that contained a chapter specific to her client’s charges in this case, a NAVY JAG Instruction on JAG ethics, and an amicusbrief from the al-Nashiri case that dealt with the same kind of seizure of attorney-client privileged material happening here).

Various defense attorneys noted the problematic nature of the screening process. First, the Order’s vague definition of legal mail makes it tremendously difficult to pass legal documents from attorney to client, and vice versa: what may be considered highly relevant to the defense as  part of effective legal, can be construed by the government as non-legal mail and subject to seizure. And second, even if the defense wants to exchange non-legal mail, all of it must first be screened by J2, a process by which it could take months to be cleared and delivered, and still, there is no guarantee that all of the documents will ultimately be delivered.

The reported ransacking and seizure of the accused’s legal mail seemed almost icing on the cake for defense counsel.

J2 Just Might Visit a Local Radio Shack

Next on the stand was Colonel John Vincent Bogdan, Joint Task Guard (JTG) Commander, who is responsible for controlling the attorney-client meeting room at Echo II. Lead by the compelling cross-examination of Mr. Nevin, Learned Counsel for Khalid Sheikh Mohammed, Bogdan revealed that although he began his commission as JTG Commander in June 2012, it was not until January 31, 2013—two weeks ago—that Bogdan learned of Echo II’s audio capabilities from Captain Welsh. He represented to the court that he had no knowledge of Echo II’s audio capabilities until that point, and assured the court that “they do not audio monitor in Echo II.” After learning of these audio monitoring capabilities, Bogdan issued a verbal order, not a written order, “that there was to be no audio monitoring of attorney-client meetings.”

In a quick witted response, Mr. Nevin asked: “But since you understood there was no audio — excuse me — audio monitoring capability, there was really no reason to order that there be no audio monitoring, right?” Why issue an order to not do something that is already not done? Bogdan said it was necessary to cement the policy.

Thereafter, Mr. Nevin sought answers from Bogdan as to how he took measures to assure that his verbal order would be obeyed. Bogdan confirmed that his guards dismantled the audio monitoring system. They did not remove the system altogether, however, and instead they “disconnect[ed] all the power supplies and secure[d] all the power supply so the system couldn’t be inadvertently turned on.” In other words, he had the electrical cord removed from the wall.

Bogdan also confirmed that J2 owned all of the audio and video technology in Echo II—the cameras, the microphones, and the wires connecting those pieces to the video and audio systems. This past weekend the defense were permitted to enter and observe the audio monitoring system in the control hut for Echo II. The audio system is called Louroe AP-4. It is a non-recording system, but it has an audio output jack in the back of it where one could simply plug-in a digital recording device—try Radio Shack.

The defense “tag-team” made the point, and Bogdan admitted, that as easy as it was to conceal from Bogdan the fact that Echo II has audio monitoring capabilities for over a year into his commission, J2 could also have just as easily purchased tiny microphones from Radio Shack and put them in Echo II without him knowing.

Balancing Competing Interests: National Security v. Protecting Attorney-Client Privileged Communications

Easy to lose in the drama and vagaries of another day in GTMO, the day’s pre-hearings were an emergency interlocutory motion to investigate into intrusions on attorney-client and attorney-attorney privileged communications.

JTF-GTMO wants security in Echo II for national and camp security reasons. The defense teams want to be relieved of the reasonable fear that they are being listened to in the courtroom and in Echo II. All seemingly reasonable concerns.

Ms. Bormann suggested a remedy—that the audio system be completely removed (maybe destroyed and trashed) and the guards instructed to monitor the attorney-client meetings in Echo II from chairs outside the room, leaving the door open but having them sit far enough away so that they cannot hear the conversations inside. The court seemed skeptical, and I suspect both prosecution and defense will continue to be so as well.

Josh Wirtshafter is a fellow at the Center for Policy and Research at Seton Hall University School of Law student. He is a member of the Class of 2014 and is a 2011 graduate of Franklin & Marshall College, where he majored in Religious Studies.

Possible Intrusions into Attorney-Client Privileged Communications at Guantanamo: A Soup Of Sound

2L student Josh Wirtschafter is in GTMO this week observing the military commission hearings.  His observations from Monday’s hearings are printed below.

Monday, February 12, 2013

Although unclear at times, the issue for the second day of pre-trial hearings in United States v. Mohammed, et al., concerned the extent to which “The Man Behind the Curtain” could monitor attorney-client and attorney-attorney privileged communications from both inside and outside the courtroom. Three witnesses testified to this issue. Based on what was said—  and sometimes what was not said— tremendous light was shed on what appears to be the potential for serious breaches of attorney-client and attorney-attorney privileged communications at Guantanamo Bay.

And the Gates Are Open…

The morning was a techie’s fantasy. Mr. Maurice Elkins, the program and design manager of the video and audio recording system in the courtroom, testified as to the specifics of the in-court microphone system. Ably guided by Mr. Connell, defense counsel for Mr. al Baluchi, Mr. Elkins drew for the record a distinction between “gated” and “pre-gated” audio. The former is the filtered version of speech heard in the courtroom and disseminated to the press, nongovernmental organizations, and victim’s families in the gallery. The filter is the “gate,” which only opens when a speaker’s decibel level exceeds a certain threshold. Basically, the gated feed is the sound of those speakers who intend to be heard—those who speak at a normal decibel, not a whisper. On the other hand, the “pre-gated” audio feed is all of the other noise absorbed by the 27 hypersensitive microphones in the courtroom—everything above, below, or at normal decibel levels— which is to say: every whisper, side conversation, or pin drop in either the front or in the back of the room; even the whispers among defense counsel. It is a soup of sound— but one filled with privileged morsels.

Mr. Elkins explained that the pre-gated feed is sent only to the court reporter, the interpreters, and to the Original Classifying Authority (OCA). He further clarified that the court reporter was the only one of those three, to his knowledge, to have For The Record Gold (FTR Gold) software, which has recording and untangling capabilities. Meaning, the court reporter could, if he or she was so inclined, record the pre-gated feed, isolate a particular sidebar conversation, focus in on the one or more microphones picking up that conversation, and increase its sound. Virtually any and all speech in the court is potentially understandable if one has access to the commercially available FTR Gold software.

What Mr. Elkins seemed to be saying is that in court, systemically, only the court reporter is given access to FTR Gold. Unsettlingly, Mr. Elkins testified, however, that “he does not know” what OCA’s capabilities are outside of the court. Presiding Judge James Pohl rehabilitated Mr. Elkins on this point, after Elkins had exhaustingly testified to that exact point—that “he does not know!”

At the climax of Elkins’ frustration, in attempting to prove that he had changed the in-court audio system from “push to mute” to “push to talk,” so as to lend some assurance to the defense attorneys that they could converse with each other and their clients unrecorded if they so desired, Elkins explained, “The distinction with this microphone from which I am speaking at is I have to push it to talk or I have to push to untalk.” Dramatically, Elkins released the talk button, expecting his voice to be cut off from the gallery, but in actuality, I could hear him say, loud and clear, “It’s not pushed right now. So you can hear me inside the courtroom but nobody else can hear me.”

Seemingly, the assurances to the defense counsel were overstated, audibly, and if the “Man Behind the Curtain” had even the Walmart version of FTR Gold when receiving the pre-gated feed, his/its eavesdropping capabilities would be virtually absolute.

Echo II: The Attorney-Client Meeting Room Where the Microphones Don’t Say “Speak into the Mic”

Captain Thomas J. Welsh, Staff Judge Advocate (SJA) for Joint Task Force at Guantanamo Bay Naval Base was brought to the stand next. Welsh testified about his knowledge of audio monitoring capabilities outside of the courtroom—specifically in Echo II, the principle attorney-client meeting room. Among other things, he denied that the microphones in Echo II were concealed. His reasoning: just because it looks like a smoke detector does not mean that it is a smoke detector. Eventually he conceded that Echo II’s microphones are far from being categorized as readily identifiable recording devices, and that they did not look like the “speak into the mic” microphones in the courtroom.

Capt. Welsh testified that upon first assuming his position as SJA, he was unaware that Echo II had audio recording equipment. But in January 2012, Welsh walked-in on a law enforcement agent in an annexed control room listening to the conversation between parties (defense, detainee and prosecution) to the proffer of a plea deal in Echo II. On a number of occasions, Welsh essentially testified that he was surprised and concerned with what he had seen, and further concerned at the prospect that attorney-client privileged communications might be listened to. But when he brought his concerns to the attention of the system operators, he was advised not to worry because “they” certainly do not listen in on attorney-client communications there—only proffers and meetings with delegates from foreign agencies. Without a log system of the audio system’s use, Welsh’s inquiry stopped there.

If Welsh was as surprised as he said he was— and as concerned as he should have been—upon discovering the infrastructural capability for attorney-client privileged communications to be breached, one might think (or at least have hoped) that he would have conducted a more thorough investigation into the history and use of the Echo II microphones.  As a Staff Judge Advocate, entrusted with the duty of military justice, one might ask where his duty lies.

A search of his emails for purposes of this hearing—where he limited the search to “monitoring” and perhaps “audio”— brought up a gem.

In an e-mail dated May 8, 2008 in anticipation of a press conference, John Eskelsen, an assistant judge advocate, asks his boss, Captain McCarthy, Staff Judge Advocate  (a predecessor of Capt. Welsh) an interesting question.

The Defense Counsel questioned Capt. Welsh about the email while proffering both a question and what may be an explanation:

Question:  “…it says that if you, meaning Captain McCarthy, the prior SJA, need an affidavit from me that we did not keep sound recordings, I’d be happy to give it.”

Capt. Welsh: “Yes, it says that.”

Question: “And would you agree with me that the implication of that statement is that sound recordings are made but not kept?”

After some examination Capt. Welsh stated that he “would leave it to the judge to read what he wants to read into it.”

The Logistics Order Has A Language Specification Requirement For a Reason:

Mr. James Harrington, Learned Counsel for co-defendant Ramzi Binalshibh, unraveled a dispute over the intended enforceability of the 2011 Logistics Order. This Order, drafted by Captain Welsh, approved by Welsh, and intended to be enforced by JTF-GTMO, set forth the updated standard operating procedures that defense counsel must obey prior to meeting with their clients in Echo II.  One of the many detailed procedures requires defense counsel to alert JTF-GTMO of what language they intended to speak during the meeting. Welsh brushed off the seriousness of this provision, saying that it is never enforced in practice.

It is obvious, however, that the only way to enforce this provision would be for the government to hire a translator to listen-in on the proceedings. Without any tracking or logging system attached to the use of the audio recorder in Echo II, the government could have been listening-in all along. It also calls into question whether they needed to know what language defense counsel would be speaking, in order to get a translator to listen in and monitor the conversation if the language chosen was something other than English.

Learned Hand Would Have a Problem with this…

This case has become chock-full-of-sneakiness. Or maybe concealing its intelligence-gathering mission has always been JTF-GTMO’s modus operandi. But it was not until now—the unveiling of the gated and pre-gated audio feeds, the smoke detector-looking microphones, and the curious SOP Orders—that the government’s subterfuge has become so public. Yet, in this case, the government has continued to argue that such intelligence-gathering motives have not resulted in an intrusion upon attorney-client or attorney-attorney privileged communications. Rather, that it is a by-product of the defense’s illusions and paranoia.

However, if intelligence-gathering is truly not an issue of concern, then why not appease the defense? Why not eliminate the pre-gated feed system? Why not completely remove the microphones in Echo II? As Judge Learned Hand might say, the solution is nearly costless.

Apparently, it is not that simple.

What is a High Value Detainee (HVD)?

Lieutenant Colonel Ramon Torres was the last witness called to the stand. Despite questions I and others might have about his testimony as a result of his having largely discredited himself on numerous occasions, he introduced an interesting topic— one which I would like to indulge for an important moment or two. Lt. Col. Torres stated that during his time at Guantanamo Bay he was, for all intents and purposes, the mailman for the “high value detainees” (HVDs). It was clear from present context that the HVDs he was referring to were Khalid Sheikh Mohammed and his four co-defendants. However, the classification for HVDs is not so neatly quartered. For instance, the present accused were transferred to Guantanamo Bay in September 2006 along with nine other detainees also labeled HVDs, though these nine are of far lower or even nonexistent intelligence value.

If these detainees have little or no intelligence value, then why is it that they have become muddled in the same category as the alleged masterminds of the 9/11 attacks? Importantly, these other nine detainees, though not sharing the intelligence value of the alleged masterminds of the 9/11 attacks, do, however share something with those on trial now: They were all exposed to CIA Dark Sites and those site’s classified personnel, interrogation tactics, location, etc. Seemingly then, criteria for being an HVD can simply be being a DSS (Dark Site Survivor).

Sub-classifying detainees according to more narrowly tailored intelligence qualifications could be good starting point for improving the system’s accuracy, and even lend some level of explanation for the military commission process and what appears to be rampant eavesdropping. Again, a more accurate classification of the nine non-mastermind, little or no intelligence value, detainees might be— instead of HVDs, Dark Site Survivors (DSS). Or, in the very least, we can hyphenate the status to show the real issue of concern: HVD-DSS.

 

 

Josh Wirtshafter is a fellow at the Center for Policy and Research at Seton Hall University School of Law student. He is a member of the Class of 2014 and is a 2011 graduate of Franklin & Marshall College, where he majored in Religious Studies.

Gates Supports Drone Court

English: Official portrait of United States Se...

Official portrait of United States Secretary of Defense Robert Gates  (Photo credit: Wikipedia)

The number of high-profile officials and former officials who have voiced support for a court to review lethal drone operations is multiplying.

On Monday, former CIA Director and Defense Secretary Bob Gates told CNN that while he has long advocated the use of drones to monitor and target suspected terrorists, he also supports greater oversight.

Gates’ opinion will carry weight. As a career public servant who has served both Democratic and Republican administrations, he is perceived as a trustworthy source of non-partisan analysis. And because in the last two administrations he held high-level positions bearing directly on drone operations, he can be considered to have intimate knowledge of their uses, and their risks.

“I’m a big advocate of drones,” said Gates. While  he admits that innocent people are sometimes killed by drones, he says “the numbers, I believe are extremely small”. Given the limited options to confront the terrorists and insurgents in places like Pakistan, Gates still thinks that drones are the best option, explaining “You do have the ability to limit that collateral damage more than with any other weapons system that you have.”

But despite their efficacy, Gates agrees with the recent calls for some form of oversight panel or court:

“Whether it’s a panel of three judges or one judge or something that would give the American people confidence that there was, in fact, a compelling case to launch an attack against an American citizen – I think just as an independent confirmation or affirmation, if you will – is something worth giving serious consideration to”

Currently, the Senate Intelligence Committee is reviewing proposals for creating such a tribunal. However, no legislation has yet been started.

Paul Taylor, Senior Research Fellow

Center for Policy & Research

Former Detainees in the News: Uighurs in Albania and Palau

This past week, we saw two separate looks at former detainees of Uighur ethnicity and the challenges they face as former Guantanamo detainees.[1] [2]

The Uighurs are of a Chinese ethnic minority that has been subject to persecution in China.  As a result, no released Uighur detainees have been returned to China and have instead been sent to Albania, Bermuda, El Salvador, Switzerland and Palau.  As previously examined in the Center’s National Security Deserves Better: “Odd” Recidivism Numbers Undermine the Guantanamo Policy Debate, the Uighurs in Bermuda have been resettled successfully.

We also now know that at least one other Uighur former detainee, Abu Bakker Qassim, has been somewhat-successfully resettled in Albania.  Qassim initially had difficulty learning the Albanian language and reconciling his idea of Albania with the reality.  However, he has managed to bridge the gap by becoming a pizza-maker.  Qassim notes that while he had never even heard of pizza before he arrived in Tirana, Albania, his work has greatly improved his grasp on Albanian.  However, Qassim notes that it isn’t easy for him to make ends meet; he only works part-time, and the state aid he receives isn’t enough to support him, his wife and infant daughter.  The stigma of Guantanamo remains with him, making it difficult to find a better job.  Because Qassim is not an Albania citizen, he cannot obtain a passport.  Without a passport, however, Qassim must remain in Albania or return to China and face almost-certain persecution and arrest.

The challenges faces by Qassim are mirrored by the Uighur former detainees in Palau.  Six Uighurs in total were sent from Guantanamo Bay to Palau in late 2009, in what was intended to be a temporary stop before a permanent home was found for the former detainees.  However, the years have passed and Palau has been increasingly unable to support its charges.  Although the US and Palauan governments aided the former detainees in obtaining minimum-wage jobs, they struggle to pay for utilities and food.  Even the President of Palau, Tommy Remengesau, has expressed regret over the situation, noting the unfairness of their situation.

The recent shuttering of the U.S. State Department Guantanamo Closure office has made these six question whether they will ever leave Palau and settle in a permanent home.  Like Qassim in Albania, these six are not Palauan citizens and therefore cannot obtain passports in order to leave.  Ambassador Daniel Fried, who had run the Guantanamo Closure office up until its end, has stated he will continue to negotiate for permanent settlement of the Uighurs, even though he was reassigned to a position overseeing sanctions for Iran and Syria.

In 2008 a Washington federal court judge ordered all Uighurs to be released.  However, three Uighurs remain at Guantanamo Bay, because as with the former detainees in Palau, the U.S. has been unable to find a country to accept them.  Many countries fear the Chinese response to acceptance of Uighur former detainees.  As a world power, the U.S. is seemingly in a position to accept all of the Uighurs and withstand China’s response.  However, the public outcry that has accompanied any talk of bringing detainees to the U.S. to be held in prisons, never mind bringing detainees here for release, has completely shut down any likelihood of this happening.

Both the U.S. courts and the U.S. government have accepted that the Uighurs were never a threat to U.S. interests or forces.  However, if the U.S. government won’t stand and accept these clearly innocent men in our country, it is hard to imagine how we will convince any other country to do so.

Kelly Ross, Research Fellow

Center for Policy & Research


[1] Michelle Shephard, Uighurs who went from Guantanamo to paradise running out of money and patience, The Star  (Toronto), Feb. 7, 2013,  http://www.thestar.com/news/world/2013/02/07/uighurs_who_went_from_guantanamo_to_paradise_running_out_of_money_and_patience.html.

[2] Nate Tabak, Former Guantanamo Detainee Now Making Pizza in Albania, PRI’s The World, Feb. 7, 2013, http://www.theworld.org/2013/02/uighur-guantanamo-detainee-albania/.

Dispatch from GMTO: Al-Nashiri Military Commission Hearing

Al-Nashiri Military Commission: ‘The Man Behind the Curtain’ Turns Defense Counsel Into Cornered Huddled Masses; Prosecution says: ‘Al-Nashiri’s Incompetent to Stand Trial; Now Let’s Continue With the Trial’ 

This post is the product of research fellow Sean Kennedy’s observations at last week’s al-Nashiri hearings at Guantanamo Bay.  

In the first of what was supposed to be four days of hearings in Guantanamo in the case against Abd al-Rahim al-Nashiri—the alleged mastermind behind the U.S.S. Cole bombing—the commissions came to a screeching halt.

Judge James Pohl granted the prosecution’s motion to examine the mental capacity of al-Nashiri and all other scheduled motions for the proceedings were held in abeyance until a determination on al-Nashiri’s capacity was finalized.

The courtroom atmosphere was contentious throughout the duration of the proceedings with what might be termed bickering between both sides and Judge Pohl.

In total, two motions were heard before Judge Pohl affirmed the prosecution’s motion on al-Nashiri’s mental capacity and effectively quashed the hearing until a yet be determined date.

Having said that, the hearing was not without drama.

 

AE 149 – Motion to Investigate the Ability of Third Party Monitoring of Attorney/Client information.

 

The morning began with a hearing on a last minute motion filed by the defense on Friday, February 1, 2013, in response to last week’s unsettling revelation that outside governmental agencies could listen to the proceedings remotely, and “close down” the the court without the Judge’s knowledge or permission.

The prosecution elected not to draft a written response to the motion, instead opting to respond on the record.  Defense counsel, Commander Steven Reyes, argued that because of this undisclosed monitoring by outside agencies, the defense’s ability to have privileged conversations with their client was impaired and thereby they would not be able to provide effective representation. In addition, the defense argued that further discovery would be necessary to determine whether or not this same kind of remote monitoring system was in place in the holding areas outside of the courtroom and in the attorney conference room on the far side of the island where meetings with the detainees take place.

In response, Mr. Anthony Mattivi, the U.S. attorney representing the prosecution, claimed that the defense was attempting to switch the burden and place it on the government while offering no evidence that any monitoring could take place outside of the courtroom. The prosecution attacked the lack of factual support in the defense’s brief for its claims and stated that the defense was conflating two separate issues. Finally, Mr. Mattivi criticized the defendant’s proposed remedy of shutting down the proceedings to conduct an investigation into the monitoring by stating, “I don’t quite understand how that would work from a legal perspective.”

Judge Pohl was quick to push Commander Reyes about the lack of evidence to support a claim that conversations could be monitored in the holding cells outside the courtroom or in the attorney meeting rooms by the prison. The defense claimed that the events of last week were proof positive of this capability and should be more than enough to overcome its burden of proof and persuasion. The protracted dialogue between Lt. Commander Reyes and Judge Pohl became increasingly heated as the commission wore on, with Judge Pohl contentiously asking, “Does it surprise you that the government can monitor conversations across the world?”

The Judge denied the motion, ruling that the defense did not proffer enough evidence to carry the burden but made note that if evidence did arise it would require serious and significant remedies. However, after the motion was denied, Commander Reyes requested a 3-hour recess to contact ethics specialists to ensure that the defense would not be violating any ethical obligations by continuing the representation in light of the specter of remote monitoring of attorney client conversations.

In addition the defense wanted to speak with the individuals that oversee the courtroom’s technology to determine what, if anything, could be done. Judge Pohl initially took issue with the request and expressed concern that defense was attempting to sua sponte overturn his ruling on the motion. After a prolonged exchange, the Judge granted a one-time exception, allowing this recess to give defense counsel the opportunity to confirm that it was not violating any ethical obligations under the circumstances.

During the break, the defense counsel told the court it learned that third parties could monitor conversations on any microphone inside the courtroom. However, there was no evidence that any audio recordings could be taken from the holding cells outside the courtroom. Interestingly, there was no clear answer with regard to the Attorney meeting room, a revelation that presented great pause for the defense.  Judge Pohl emphasized that he would not order an attorney to act in a manner that violates an ethical obligation and said that he understood the defense’s concerns. He reiterated that the current situation did not pose such an ethical issue. Defense counsel had consulted with their ethics counselor and indicated they were ready to proceed. However, as the day would prove, the government would shortly take the position that ultimately forced this entire proceeding into an indeterminate hiatus.

Additionally, an agreement was set up with the prosecution to speak to various technical operators at the detention center to address the remaining confidentiality concerns. However, due to what was said to be the monitoring capabilities from the microphones throughout the court room, defense counsel huddled in a corner of the court room on several occasions in order to confer privately, outside the range of the microphones and what defense counsel referred to as “The Man Behind the Curtain (perhaps having read my colleague, Adam Kirchner’s, report in The Public Record on the KSM hearing). While the motions continued, the “Man Behind the Curtain” is, as of yet, still unidentified, and seemingly poses significant obstacles for the defense going forward.

 

AE 99D—Government Motion for Commissions to Discuss with the Accused Matter Considered by the Commission During the 18-19 July 2012 and 23 October 2012 Sessions.

The next motion before the Commission involved the prosecution’s request to clarify a waiver of appearance by al-Nashiri for the above-mentioned dates. The prosecution argued that the law has now changed– allowing a detainee to waive his right to appear in the beginning of a particular session while still maintaining the ability to change his mind and appear in the session later in the day. Previously, when a detainee waived the right to appear, the waiver was in force for the full day. The prosecution argued that because of this change the record needed to be clarified and, if necessary, al-Nashiri would need to briefly speak in open court.

The defense countered by asking the court for the ability to investigate underlying facts in any statement  al-Nashiri may make on the record if he is required to speak. The defense argued that the investigation would occur for the sole purpose of providing context to these future statements so that they could not be used as evidence against al-Nashiri’s mental competence. Commander Reyes pointed out that the uninvestigated statements made by al-Nashiri were the basis for the prosecution’s current motion to exam his mental capacity to stand trial. Judge Pohl reserved his decision on this issue pending the result of the upcoming motion.

 

AE—140 Government Motion for Inquiry into the Mental Capacity of the Accused Under R.M.C. 706

 

The third motion of the day had the potential to stop all litigation in the case dead in its tracks. In an unusual twist, the prosecution was petitioning for an investigation into the mental state of al-Nashiri in order to determine whether or not he is able to understand and assist in his own defense. Judge Pohl asked the prosecution if they understood that a grant of this motion would put the case on hiatus until the examination was concluded. Mr. Mattivi acknowledged that he understood; however, his answer would change immediately after the Judge made his ruling.

If granted, the 706 motion would allow the Judge to have a board of medical professionals appointed in order conduct the examination of al-Nashiri to determine if he is competent to understand the trial and assist in his own defense. CDR Andrea Lockhart argued that this examination was necessary because of the defense’s assertion that al-Nashiri suffers from PTSD, as well as statements made by al-Nashiri during a previous session where he waived his right to appear. She further stated that the board that was appointed would be independent from the prosecution or the defense.

Defense counsel Richard Kammen—sporting a symbolic Kangaroo pin on his lapel—countered by acknowledging that al-Nashiri has PTSD related to torture committed against him in a CIA black site, but that his competency has never been in question. The defense expressed concern that the information recorded during the examination would be discoverable by the prosecution in the event that a death penalty hearing becomes necessary. Judge Pohl explained that the defense “holds the keys to the car” regarding the report and that it will not be discoverable by the prosecution unless the defense puts it at issue in the trial. In addition, Mr. Kammen was doubtful that the board would be independent and feared the appointment of “hacks.” Finally, the defense requested the Judge to hear from Dr. Iacopino, who is an expert in the area of torture related PTSD victims, for guidance regarding who should be selected for the medical board if the motion was granted.

Ultimately, Judge Pohl granted the government’s request for the 706 inquiry and with that, further progress in the case was stopped. However, after the Judge’s ruling, Mr. Mattivi posited that the court should continue to hear the pre-trial motions because there was an “assumption of competency” relating to a 706 hearing, despite his previous acknowledgment on the record that this decision would effectively pause the trial. Commander Reyes countered by stating that the presumption is only applied to the hearing that occurs after the 706 motion and that it would not make sense to continue if the prosecution believes Nashiri to be incompetent— as they claim. The Judge agreed with Reyes and set up a tentative schedule for the board to examine Nashiri in approximately 6 weeks.

Mr. Mattivi’s final attempt to continue with the trial was telling. Arguably, the prosecution was attempting to pre-empt any mental capacity challenge made by the defense at a latter date by forcing al-Nashiri to undergo a competency test before the trial starts. It was unusual that the prosecution pushed for a motion that could potentially cause its entire case dismissed if al-Nashiri is found incompetent. However, Mr. Mattivi’s attempt to have the case continue after this motion was granted begs the question of how much the government actually believes it own claim regarding incompetence.

 

AE 135 – Defense’s Motion to Allow Dr. Crosby to Examine Nashiri without Shackles and not in the Presence of Guards

 

The final motion for the day involved a pre-arranged medical examination scheduled by the defense. Dr. Sandra Crosby was scheduled to examine al-Nashiri for physical signs of abuse relating to the torture committed by the CIA. The Judge asked Commander Reyes if the session would be observed by video, if there would be guards present outside the examination room, and if Dr. Crosby is willing to sign a waiver. Commander Reyes answered all of the questions in the affirmative. The prosecution, represented by Major Chris Ruge, argued that the shackles and guard presence was a reasonable safety measure that was requested by the JTF facility commander. Judge Pohl dismissed the prosecution’s argument and stated that this was a medical professional approved by the Convening Authority and that the defense request falls within the gambit of reasonable safety measures.

With that the session—and the case—was called to a close. The only item left on the agenda was an interview to take place the following day with the defense’s medical expert Dr. Iacopino. What was supposed to be four days of substantive motion hearings was reduced to a single day with a 3-hour recess. At the conclusion, many of the same issues are outstanding. The “Man Behind the Curtain” remains unknown and can still seemingly monitor the proceedings—and potential attorney client interviews—from a remote location. Further, the prosecution successfully stopped its own case from proceeding forward to trial. While this may seem like an unusual day in court, as Mr. Kammen articulated to the Judge, “Your Honor, it’s GTMO.”

 

Sean Kennedy is a student at Seton Hall University School of Law. He is also a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law.

A FISC for Drones?

With the confirmation hearings of John Brennan as Director of Central Intelligence, news related to the U.S. drone program is coming fast. This time it was made by Senator Diane Feinstein (D-CA), chairwoman of the Senate Intelligence Committee.

Both during the hearing and in comments to the press afterward, Sen. Feinstein suggested that she and other Democrats would be working to create a new court that would review the administration’s decisions on who may be targeted in lethal counter-terrorism operations. (I assume at that such a court would be given jurisdiction over all targeted killings, not just those conducted by drones, despite the common conflation of the two.)

The concept of a court or tribunal of some sort to review or provide oversight for targeted killing decisions, whether restricted to those targeting U.S. citizens or with a broader mandate, is not new (see, e.g., our previous post). However, this is the highest profile such suggestion that has yet been made.

In Sen. Feinstein’s conception, the court would be modeled after the Foreign Intelligence Surveillance Court (FISC), with the aim of increasing transparency and to correct public misconceptions about civilian casualties.

Such a court could also help to alleviate concerns that the administration is overly-permissive in its decisions to use targeted killing instead of other alternatives. For example, the editorial board of the New York Times writes, “Mr. Brennan’s assertions that the government only resorts to lethal force when ‘there is no other alternative’ is at odds with reports of vastly increased drone strikes.” An independent body which reviews such determinations would go a long way in ensuring that such concerns are addressed.

As an interesting aside, it seems that not everyone is concerned that President Obama is sliding into a Bush Doctrine approach. John Yoo wrote in the Wall Street Journal that “[t]he real story revealed by the [white paper released Monday] is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods.” However, this appears to be a minority view.

Ex Ante or Ex Post?

If the FISC forms the model for this targeted killing court, then the assumption would be that it would that the court would review the targeting decisions ex ante. That is, before the administration could act, it would have to produce for the court the evidence or intelligence gathered to support the targeting decision. The court would then review the evidence for some level of sufficiency before allowing the operation to move forward.

However, many of the suggestions for a tribunal to review these killings call instead for ex post review. This is the model required in Israel. The basic idea of this is generally that waiting until the operation is complete keeps the court out of the way of military or para-military operations, but still maintains some oversight.

Robert Chesney of Lawfare provided some very interesting points to consider about such a court, including whether the review should be ex ante or ex post. He falls on the side of ex ante, but some of his commentary actually seems to point in the other direction. First, he points out the all of the serious propositions would subject the nomination process to judicial review, not the “trigger pull.”  This temporally removes the judicial authorization from the final decision to kill, and in Chesney’s view eliminates the concern that the process will interfere with the execution of the operation.

I’m not sure that it does. Names may be placed on the list at any time, conceivably as the result of a time sensitive push within the intelligence community. While I am not an expert in the process of targeting decisions, I think that the executive may need to be able to act quickly on new information that indicates that a subject is targetable. Ex ante review would place an additional hurdle between the decisive intelligence and the operation. Chesney seems to realize this by admitting the need for an “exigent circumstances exemption.” But this exception would itself mean defaulting back to an ex post review.

Additionally, Chesney notes that “Some judges want absolutely nothing to do with this … due to hostility to the idea of judicial involvement in death warrants.  (And that’s without considering the possibility of warrant-issuing judges finding themselves the object of suit or prosecution abroad.)”

Judges would likely be much more comfortable with ex post review. Ex post review would free them from any implication that they are issuing a “death warrant” and would place them in a position that they are much more comfortable with: reviewing executive uses of force after the fact. While there are clearly parallels that could be drawn between the ex ante review proposed here and the search and seizure warrants that judges routinely deal with, there are also important differences. First and foremost is that this implicates not the executive’s law enforcement responsibility but its war-making and foreign relations responsibilities, with which courts are loath to interfere, but are sometimes willing to review for abuse.

Additionally, in search and seizure warranting, there an ex post review will eventually be available. That will likely not be the case in drone strikes and other targeted killings unless such a process is specifically created. There are simply too many hurdles to judicial review (including state secrets, political questions, discovery problems, etc) for the courts to create such an opportunity without congressional action.

Chesney also noted that executive officials involved in the nomination process would prefer an ex ante review to shield them from unexpected civil liability by the victims or their families. I’m sure that it is true that administration officials would like to have “certainty ex ante that they would not face a lawsuit.” However, this is not a guarantee that the courts can provide to the executive. As noted above, as with search and seizure  warrants, there are issues to consider after the approval of the executive action. Ex ante review does not allow for inquiry into important ancillary issues, such as the balancing of risk to civilian bystanders. Also, it provides no assurances that new, exculpatory intelligence forces a reassessment of the targeting decision. Only ex post review would achieve this.

There is also the problem that typified the FISC: permissiveness. Of the tens of thousands of FISA warrant requests, only a handful have been rejected. When allowing for modification of the requests, it is not clear whether any have been finally rejected. There is little reason to believe that the proposed “drone court” will be much different. It is far too likely that a court will hesitate to impede an operation that the executive believes is required to protect out national security. Once the operation is complete, however, the court will not be inclined to hold back its criticism on all manner of aspects of the operation, from the initial targeting decision to the final execution.

Lastly, as Chesney himself points out:

Of course, there is also the question whether creating any such system is constitutional in the first place, especially if the system is framed to encompass more than just US persons…

This may true for ex ante review, but one of the courts’ fundamental mandates reviewing the executive’s activities for abuse of its power. This is even true in cases involving military or foreign affairs, where the executive is given the widest latitude and enjoys the greatest autonomy.

I do share Chesney’s suspicion that a tort-based process in which victims seek damages is not the appropriate means of reviewing targeted killing decisions. However, I am certain that regardless of whether an ex ante review is used, some ex post review must be available. There are simply too many variables between the initial nomination and the final execution of the mission that should be subject to some independent review. Indeed, as a veteran, I know the value of lessons learned in after action reviews, but I also know how often these reviews are shortchanged or skipped altogether. An ex post judicial review will ensure that this does not happen here.

Paul Taylor, Senior Research Fellow

Center for Policy & Research