The Somewhat Less Secret Hearing
Katherine Hawkins, Investigator, Task Force on Detainee Treatment

A redacted transcript of the closed hearing in the Nashiri military commission that I posted about last week has been released. Much of the transcript is blacked out, but enough detail has been released to confirm that it was about the scope of the government’s discovery obligations about torture, and the relevance of evidence of Nashiri’s torture in the mitigation phase of his trial. It is still impossible to determine precisely what relief the government is requesting, though.

Below are some of excerpts from of the transcript. They dramatically illustrate the legitimacy problems for the military commissions caused by ongoing secrecy about the defendants’ torture at CIA black sites.

On page 9, prosecutor Joanna Baltes describes the current state of discovery about Nashiri’s treatment by the CIA as follows:

[T]he government has provided many hundreds of reports that detail the treatment of Mr. Nashiri while he was in CIA custody in one or more overseas locations. Those reports have been summarized and the discoverable information contained in those reports has been provided to the defense in this case.

Baltes said the prosecution has also agreed to produce any photos in its possession of Nashiri in CIA custody, and portions of OLC documents that “go to anything regarding Mr. Nashiri,” which would complete the government’s discovery obligations with regard to evidence of torture.

On page 19, defense counsel Richard Kammen responds:

Some day we will get photos; some day we will get additional reports. But what we have now, Your Honor, I will tell the commission, are a series of summaries that at an appropriate time we will demonstrate are false….The summaries are false, they are misleading, they are woefully inadequate for any meaningful presentation in a capital trial. They are absolutely inadequate.

Kammen notes that the rules of the commission prevent the judge from reconsidering the adequacy of the summaries later on in the process, unlike in federal court, and continues:

Secondly, as of right now, the summaries are still not releasable to Mr. Nashiri. So we can’t even discuss those summaries with him to get his perspective on whether—on how false they are, how incomplete they are, how misleading they are, how sanitizing they are. So with respect, we are troubled by the government’s desire to do all of this in secret.

On page 30, Kammen asks the judge to consider the historical record:

25 years from now, probably long after I’m gone, perhaps maybe they will hide it long enough until we are all long gone, somebody is going to look at this. They are going to say what was the real truth here. The real truth here…

Most of the next four pages of the transcript are redacted. On page 34, Kammen states, “it is the secrecy that gives us pause. And as I said, in this context, while I mean no disrespect to the prosecution, the history here, we just can’t be immune to the history here of deception” by “varying governmental agencies,” and particularly the CIA.

Kammen continues,

from our perspective again, given the level of secrecy and one-sidedness to all of this, we just have to conclude that what this is really about is the government’s desire, the big G government’s desire, really, to hide the truth. I mean, the fact we are all—the secret of all this is the reason we are here as opposed to  in a real court is because this is [redacted]. Not you personally. This procedure, I should say [redacted]. That is what this is all about. …

25 years from now people will look at this and they really are going to be asking some hard questions.

He states that in contrast to past military trials,

what this prosecution is about, is hiding that truth, not exposing it.

Similarly, the Department of Justice lawyers used to be about hiding—exposing the real truth about things the United States has done. They want to try Nashiri, that’s fine.  We don’t—we will fight that battle. But fight on the—in an atmosphere of real truth, not hiding the truth.

Baltes said she was deeply offended by Kammen’s characterization:

I take my responsibilities seriously, both from professional and an ethical standpoint, as I know the rest of my team does…it would be egregious, I think, to let the insults just go by.

We are coming here in an adversarial setting for a ruling from the military judge. We haven’t done anything in secret….

We are not unwitting. I am well aware of the facts in this case. I’m well aware of the facts in this case. I’m well aware of the national security issues at stake. We have laid those out for you in an ex parte filing, and I’m confident that there are no reasons, other than legitimate national security reasons, of why the United States government [redacted].

Baltes also defended the accuracy of the government’s summaries of classified information. Kammen replied:

I understand what she is saying, but I think we need to recognize that the reports they got are reports they got from the CIA which were probably sanitized versions of the truth. And so what we have are sanitized versions of sanitized versions that are themselves, when pieced together with information that is both publicly—that is publicly available, clearly false. And so that’s our starting point. And, unfortunately, that falsity infects our analysis.

The next two pages are redacted. Kammen closes by reminding the court that Brady v. Maryland, the Supreme Court precedent establishing the government’s constitutional obligation to disclose exculpatory evidence to criminal defendants, is

a sentencing case. It is about the government’s withholding of exculpatory evidence that went to the defendant’s death worthiness in a Maryland death penalty case. And so when they talk about, you know, what the discovery obligation of the United States is, Brady versus Maryland, was the case, is the case, will be the case.

Judge Pohl tells the defense and prosecution that he will withhold decision on this issue at least until the same motion is argued in the September 11 case. I’m not sure when that’s scheduled to be heard.

***

 Given the ongoing, pervasive, secrecy about the defendants’ torture after September 11, and the lack of any independent check on the CIA’s ability to classify evidence of torture, defense counsel’s fears that Brady material will be withheld are only too plausible.

The Constitution Project’s bipartisan Task Force on Detainee Treatment concluded that

acts of torture, war crimes, and crimes against humanity are not legitimate “intelligence sources and methods” under the National Security Act, and evidence of these acts cannot be properly classified, unless their disclosure would endanger specific individuals or violate specific, valid, agreements with foreign countries.

The Task Force recommended that the executive branch cease its attempts to suppress evidence about torture in the Guantanamo military commissions, and work to declassify (with appropriate redactions) a list of documents, beginning with the Senate Select Committee on Intelligence’s report on the CIA’s treatment of detainees.

I assume the White House itself has no desire to intervene in discovery disputes in military commissions. Indeed, it might be illegal for the President to do so given the Military Commissions Act’s prohibition on unlawful command influence. But President Obama does have ultimate control over how much evidence about the CIA’s torture of detainees remains classified, and bears ultimate responsibility for the effects of continuing to conceal that evidence.

The Obama administration’s upcoming response to the Senate Select Committee on Intelligence’s report on CIA torture will be particularly crucial.  Vice President Biden has spoken out in favor of releasing the Senate report. But the CIA has refused repeated requests to meet with committee staff, and is reportedly preparing an “aggressive response” that disputes a “majority” of the Senate report. The agency is also likely to vigorously oppose declassification. President Obama’s position is unknown—in part because no member of the press has ever asked him about the Senate report. Someone should.

The views expressed in this blog post are not necessarily those of TCP, its committees, or boards. 

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