News broke this past Wednesday afternoon of yet another tragic mass shooting at Fort Hood, the second in the base in just five years. While TransparentPolicy‘s primary focus is the United States’ response to foreign terrorist threats, this is an issue that warrants our attention, largely in part to the widespread implications the news coverage of these events will have on the general public’s perception of service members and military veterans, which will ultimately affect the long-term well being of those who have served our country in the post-9/11 military. Continue reading
The United States announced yesterday that Libyan terror suspect Abu Anas al-Liby (also known as Nazih al-Ragye) has been transferred to the United States after being held and interrogated aboard a U.S. Navy ship since his capture in Tripoli on October 5th. He is being held as a suspect in the 1998 bombings of the U.S. embassies in Kenya and Tanzania which killed 224 civilians. A criminal indictment was filed against him in 2001 for his suspected involvement in the embassy bombings, but he has evaded capture for over a decade. Continue reading
Scraps of world-wide military transformations litter the news, leaving a careful observer with one uneasy and exciting implication: CHANGE. News of ground warfare has been largely replaced by flashy articles about “cyber warfare.” The Army slashed 12 combat brigades across the country, begrudgingly announcing the plan to reduce the number of active duty soldiers by 80,000 in four years (long enough a wait to pray for a Republican president to rescue their budget).
Meanwhile in Afghanistan, their infant Air Force is gleaning every drop of information they can from their Western trainers. NATO will end their training aid in 18 short months. Gen. Shir-Mohammad Karimi, the Afghan National Army chief of staff told 13 flight school grads, “Having all these U.S., coalition forces, advisers, instructors and contractors around us is a golden opportunity for all of us… Make sure you do not [squander] learning enough skills from them…”
Meanwhile in Asia, a collection of countries (including China, India, and Indonesia) sit poised to become the leading coalition of military spending. The US has been permitting (resentfully) the attrition of the budget to a mere $707.5 billion (not including FBI counter-terrorism (who do earn their budget!!! …a little prejudiced.), International Affairs, defense-related Energy Dept., Veterans Affairs, Homeland Security, satellites, veteran pensions, and interest on debt from past wars). However, Asian countries are prepared to meet US military spending by 2021, anticipating an increase in spending of 35%.
Meanwhile in Israel, they stand prepared to surpass the US as the largest exporter in the world of unmanned drones this year.
So where is the victorious “meanwhile in the US” blurb? What are we overtaking? More importantly, WHAT ARE WE WINNING? Well, folks, once more we are winning the make-the-same-arguments-we’ve-been-making-for-a-decade award. Huge trophies will be delivered to the Navy SEALs, Army Rangers, Delta Force and Green Berets as soon as they can fit it in the budget. A two-year study is to be conducted. Although we hear the typical regurgitated physical-requirements argument against the inclusion of women (not surprised face), I was sickened to learn we’re still talking about the “cohesion and morality” of the group (Army Maj. Gen. Sacolick’s words). Trust me, the declarations are ripe with phrases fretting over “social implications” and “distractions.” I kid you not: “Distractions.” Once more women are to be confined from a respected and desired combat position because of men. Well, you can keep your worries because like it or not gender equality is coming for you, special ops. It may not be today. It may not be tomorrow! It may not even be in the year 2015 after your comprehensive and oh-so-fair study. But it will be soon. And for the rest of the military’s life!
Chelsea Perdue, Research Fellow
Center for Policy and Research
In response to the continuing hunger strike, which has placed all but 15 detainees in single-cell confinement, the U.S. military has requested additional guards to be sent to Guantanamo. There are currently 1,831 troops and civilians assigned to the prison’s 166 captives. However, as Navy Capt. Robert Duran, the prison spokesman, stated, “When you go to a single cell, that takes more people.”
Since the hunger strike began, the captives, who once lived communally, are now confined to individual cells. This requires more work for the guards who deliver food through slots, and must now shackle each man in order to leave their cell for most activities, where they are again confined alone. This Saturday, 124 reinforcements from the Texas-based 591st Military Police Co. will arrive. As of Wednesday, 125 soldiers from the 613th MP Co., based out of Puerto Rico, have been deployed for 30 days of training in Fort Bliss, Texas. From there they will be sent to enter the regular rotation at Guantanamo Bay.
While the increased personnel would “come in handy” as the camps are in single-cell operations, Southcom spokesmanNavy Lt. Cmdr. Ron Flanders has stated that the additional units are being sent to GTMO partially in anticipation of the military commissions, and that Doral headquarters, which oversees the prison camps, might be “ramping up,” by setting a goal of reaching 2,000 personnel. Regardless of the reasoning, Guantanamo will have a large staffing increase in the impending weeks.
Alexandra Kutner, Research Fellow
Center for Policy and Research
A friend of mine recently wrote me to about the hunger strikes taking place at Guantanamo. He made a very interesting comparison between the hunger striking strategy employed by the Guantanamo detainees and those used by Irish separatists jailed by the British. He noted that the Irish were unsuccessful in their efforts to gain concessions from the British until they struck upon the strategy of a serial hunger strike. One detainee would stop eating, eventually starving himself to death, only to have his hunger strike taken up by another. This sustainable tactic created a relentless tension that eventually caused the British to cave.
Conversely, the Guantanamo detainees have typically used parallel hunger strikes. The resulting large number of hunger strikers is generally assumed to be an attempt to garner media attention. My friend is definitely correct in his assessment that this is not a sustainable tactic, which he took to mean that the Irish strategy would be more effective. However, as I pointed out to him, there is a key difference between the two cases: in Guantanamo, detainees are not allowed to starve themselves to death, only into infirmity. Once their bodyweight drops too much, they get a tube up the nose and food down their gullet. From which I concluded that media attention the sheer number of hunger strikers was the only effective civil disobedience strategy available to Guantanamo detainees.
However, it has since occurred to me that another strategy may be at play here. By increasing the number of hunger strikers, the detainees increase the workload on the medical personnel conducting their forced feeding. As has recently been reported, the situation has gotten to the point where they are having to conduct forced feeding around the clock in order to keep up. If the detainees are able to continue to grow this hunger strike much more, and sustain it just long enough, they may be able to completely overwhelm the guard force medics. If this happens, we could see several deaths in relatively short succession.
The media coverage of such an eventuality would be substantial, the political left would be mobilized, and pressure to finally close the prison would mount.
Or… maybe they’re just pissed off.
In either event, such as strategy will not work. In response to the increased hunger striking by the Guantanamo detainees, the US Navy has sent an additional 40 medical personnel to support the over-burdened force-feeding operations. This capacity and willingness to scale the response to hunger strikes will negate any high-volume strategy, at least in terms of impact on operations.
Interestingly, according to the Navy at least, the term “force feeding” may be a bit of a stretch. Army Lt. Col. Samuel House, in a statement issued on Monday, claimed that “currently only a handful of detainees are being tube-fed.” The rest of those designated for “force-feeding” are actually just isolated from their peers, sat in front of a meal, and eat voluntarily. If this is the case, then the primary driver of the hunger strike is peer pressure rather than solidarity of opposition. If that is the case, this hunger strike is just as doomed as the previous ones.
Paul W. Taylor, Senior Fellow
Center for Policy & Research
Over the past few weeks, news reports of Guantanamo detainees engaging in hunger strikes have intensified. As of Saturday, April 6th, US Navy Captain Robert Durand reported that 41 of the 166 detainees (or nearly 25%) had been classified as hunger strikers. Anonymous defense attorneys for GTMO detainees have been cited in several media sources as stating that the actual number of hunger strikers is much higher, with nearly 130 of 166 detainees refusing meals. The current hunger strike is estimated to have begun February 6th, with more detainees joining the original hunger strikers in recent weeks.
To officially be designated as a hunger striker, a detainee must refuse 9 consecutive meals. The health of the detainees refusing meals is closely monitored by GTMO officials, who subject the detainees to daily weigh-ins. If the detainee’s weight drops to a level officials deem dangerously low, the detainee is strapped in a chair and force fed by inserting a thick tube through his nose until he reaches an acceptable weight. At present, GTMO officials report that two detainees have been hospitalized for dehydration, and eleven (about 1/4 of the hunger strikers) are being force fed.
Hunger strikes at GTMO are not a new phenomenon. Several major hunger strikes have occurred at GTMO since the detention facility opened its doors in January, 2002; in 2002, 2003, and 2005-2006.
In a March 15th letter from 51 GTMO defense attorneys to defense secretary Chuck Hagel, the attorneys assert that this hunger strike was precipitated by the widespread searches of detainees’ Qu’rans (considered a form of religious desecration) as well as the search and seizure of detainees’ personal items like family letters, photographs, and legal mail. As detainees, hunger strikes are one of the few tactics these men have to assert their “voice” and attempt to garner attention for their grievances. Understandably, this is a significant concern for US officials, who are well-aware that many of these detainees are willing to die for their cause, and most have lost all hope of ever leaving GTMO after years of indefinite detention (in most cases, without charges against them). At present, the detainees and prison officials are at a stalemate, and it appears that the situation will only continue to worsen until the detainees’ concerns are addressed.
Kelly Ann Taddonio, Research Fellow
Center for Policy and Research
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.
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.
2L student Adam Kirchner is currently observing the KSM hearings in Guantanamo. This article, describing his experiences as an observer, was featured in “The Public Record” today:
The Guantanamo Bay Military Commission Hearing, United States v. Mohammed, et al., resumed on Tuesday after adjourning on Monday. As expected, all of the accused waived their right to appear at their own hearings, with co-defendant Walid bin Attash’s criticism of the trial’s process still echoing from the day before. Bin Attash had described the process, given the detainees’ inability to communicate with their attorneys without the government listening in, as undermining the establishment of trust in the attorney-client relationship— and the legitimacy of the hearing itself. . Bin Attash, Khalid Sheikh Mohammed, and three other co-defendants, are charged with violations of the Military Commission Act of 2009 for their alleged roles in the preparation for the 9/11 terrorist attacks.
Only the Judge is in Control, Except on Monday
Immediately following the issue of the non-present defendants, Presiding Judge James Pohl addressed the pressing question of who, exactly, is in control of his courtroom. In Monday’s hearing, all but the prosecution were surprised when the audio feed to the gallery of press, NGOs and the families of 9/11 victims suddenly halted when defense counsel for KSM uttered the title of a motion pertaining to his client’s detention at a CIA sponsored black-site prison— a matter of public record. Judge Pohl reaffirmed that, even though a court security officer has instructions about what topics are to be censored, only the presiding judge has the authority to close (i.e., censor) the courtroom. Furthermore, Judge Pohl noted that the comment that resulted in the censorship “is not a valid basis for the court to have been closed.”
Judge Pohl then attempted to resolve— on the record— the defense’s concern regarding who has access to audio feeds from the courtroom. He explained that there are two audio feeds. One feed never is censored and is transmitted only to the court reporter. The other feed – the feed in question during Monday’s prolonged censorship – is buffered with a 40-second delay, which allows the aforementioned court security officer time to sever the feed before it reaches the gallery or remote-viewing locations. “The purpose of the 40-second delay,” in Judge Pohl’s words is, “to prevent spillage of classified information.”
It Was Not A 40-Second Delay
James Harrington, Learned Counsel for co-defendant Ramzi Binalshibh, quickly brought to the commission’s attention that Monday’s actual events seem inconsistent with characterizing the censorship episode as an accidental 40-second delay glitch. “[T]here was a little bit of a delay; it wasn’t a 40-second delay,” Mr. Harrington said. “That is not what happened. The light went off in a time much shorter than 40 seconds.”
Judge Pohl stopped Mr. Harrington’s line of argument at that point, out of concern that it risked “sliding into an area we shouldn’t talk [about] in open court.” Counsel for both parties and Judge Pohl had discussed these issues in a closed session Monday afternoon. Elsewhere, Judge Pohl identified the crux of this and similar debates about the process of the hearings and access to information: “we are getting into a line between what is public and what is security.”
Judge Pohl: The United States Must Comply With Its Own Regulation
While it may seem that Judge Pohl shifted quickly from preserving access to information during the hearings, to cautioning defense counsel about divulging information to which the public wants access, the issue resurfaced later during Tuesday’s proceedings. Judge Pohl ultimately held in favor of some procedural transparency, granting the defense’s motion to release redacted versions of classified pleadings.
James Connell, Learned Counsel for co-defendant Ammar al-Baluchi, illustrated for the commission that many documents in the case have remained entirely unavailable to the public for more than three months, some approaching half a year, despite the Government’s practice of releasing sanitized versions with sensitive information redacted.
Sterling Thomas, an Air Force Lieutenant Colonel and detailed defense counsel to al-Baluchi, further argued for the availability of documents, noting that the very slogan appearing on the Military Commission’s website would seem to promote intrinsic notions underlying the pursuit of justice:
“Your Honor, if you were to click on the Office of Military Commission website, you’re immediately greeted with the banner of fairness, transparency, and justice. And if one were a cynic, Your Honor, one might say that these words are merely window dressing. But yet, Your Honor, I think that it’s important to note that those words are there and that obviously the government understands that that’s an important principle…. But, Your Honor, the frustration continues to build as a result of delays in the – in having openness, in having transparence. And I think it was evident as recently as yesterday when our client made some statements about his frustration with the lack of what he sees as openness and transparence. And, Your Honor, I think that equally you could say the American people are also frustrated by a lack of openness and transparence. With those things in mind, Your Honor, I just want to emphasize that we think it’s critically important that whenever possible the pleadings, orders by the commission that are not classified, that these things be made available to the public so that they can inform themselves and educate themselves about this trial.
Against the points made by the defense counselors, Navy Lieutenant Kiersten Korczynski, assistant trial counsel for the United States, argued little more than that the defense is required by the Military Commission Rules to file documents, that are not certainly unclassified, directly to the judge rather than through the ordinary docketing process.
The relevant regulation (RTMC 17-1(c)(1)) is designed to preserve the judge’s control over the release of trial-related information. If the United States wants to prevent the defense’s documents from being released, the prosecution must petition the judge to do so. Likewise, if the defense wants to compel the release of their documents, it must petition the judge to do so.
Finding that the Military Commission Rules already provide the remedy that, if followed, would preclude the United States from indefinitely detaining unclassified information, Judge Pohl held essentially that the United States must comply with its own regulation.
The hearing adjourned until Wednesday, to determine if the defense will be prepared on Thursday to argue a number of outstanding motions to compel the production of witnesses. The United States has refused to produce many defense witnesses for the case, arguing that the defense has not explained how the witnesses are relevant or necessary to the issues.
Adam Kirchner is a dual-degree student at Seton Hall University School of Law and the Whitehead School of Diplomacy and International Relations. He is a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law