Defense in 9/11 Case Argues for 'Zero Dark Thirty' Access

Scenes from the controversial movie played on courtroom monitors. (Photo courtesy of Joint Task Force Guantanamo, Public Affairs.)

Guantanamo Naval Base, Cuba – The defendants accused of plotting the Sept. 11 attacks on the World Trade Center and Pentagon watched clips from "Zero Dark Thirty" – Hollywood's rendition of their torture – in the highly secure Courtroom II at Guantanamo Bay's Camp Justice Thursday afternoon.

The movie shows abusive treatment of a character, “Ammar,” who is based on one of the defendants in the room, Ammar al Baluchi.

Al Baluchi watched as his attorney, James Connell, led the court through support for his claim that the defense is entitled to more information about what the CIA shared with the filmmakers but not the defense teams.

“He was quite upset,” Connell said after the hearings concluded for the day. “The images and the feel of the torture room is so powerful, it had a big impact on him and I think everyone else in the room.”

The screening was a dramatic turn in a long day of procedural defense motions seeing to compel production of information about the CIA’s Rendition, Detention and Interrogation (RDI) program, which subjected the five 9/11 defendants to “enhanced interrogation techniques” at CIA black sites. Defense lawyers and other critics have called those techniques torture.

Last December, the judge, Army Col. James Pohl, had ordered the prosecution to file a consolidated litigation plan for dealing with 14 pending motions relating to the black-site interrogations. The commission’s chief prosecutor, Army Brig. Gen. Mark Martins, began his presentation outlining how he intended to provide “discoverable information” on the treatment of the five defendants under enhanced interrogation.

Both the defense and the prosecution agree that arguments over the claimed evidence of torture mark a new phase in the long-pending case, which has crept through pretrial litigation since the May 2012 arraignment. However, the lawyers for the defendants and the government still disagree over exactly what information should be turned over to the defense.

Martins called the defense discovery requests “overbroad” and often “far afield from any real issue” tied to the Sept. 11 terrorist attacks.

But defense lawyers claim that the government is dragging its feet in providing information relevant to their work.

“This is by far the most restrictive discovery regime in my career,” Cheryl Bormann, the lead attorney for Walid bin Attash, told Pohl. (Bin Attash was not in court, following his pledge yesterday to boycott after Pohl refused to remove Bormann from the case.)

The government has said it will not use any information gained through enhanced interrogation of the five defendants against them in their military commissions. However, the government does plan to use statements the defendants made to FBI and Department of Defense interrogators after their 2006 arrival in Guantanamo Bay. Defense counsel say the past treatment is relevant to the admissibility of any Guantanamo statements, which they say are also tainted by past torture.

The defense also wants to be able to present CIA black-site information for mitigation – all five defendants face the death penalty – as well as for motions to dismiss for outrageous government conduct.

So far, the government has handed over 891 pages of enhanced interrogation-related discovery as well as “an electronic file” that was not allowed to be discussed in open court. The pages include 619 unclassified summaries of detainee statements at Guantanamo; 213 unclassified pages of detainee medical records from the black sites; and 59 classified photos of the detainees at the secret locations.

To date, defense lawyers have obtained only a limited amount of additional information about the treatment of their clients, and that from the executive summary of the Senate’s Report on the CIA program, released in December 2014. The prosecution has stipulated that the facts in the executive summary “occurred,” according to a filing on the consolidation of the discovery motions.

But the defense is entitled to more under Brady v. Maryland (1963) principles, which require defendants to receive exculpatory and favorable information. Because the prosecution is invoking a classified information privilege, Martins told the court, the government must only give information that is “noncumulative, relevant and helpful," citing U.S. v Yunis, a D.C. Circuit decision from 1989. (This standard is incorporated into the Military Commissions Act of 2009.)

Martins proposed providing such information in 10 categories related to the CIA program that Pohl had set out in a separate commission case, U.S. v. Nashiri, which involves another high-value detainee from the RDI program. These categories include: the chronology of where the defendants were held; how they were treated; summaries of interrogations; the identifications of interrogators, guards and medical staff at the black sites; and official documents on the use of the enhanced techniques, among other areas.

Martins pointed out, however, that in many situations his team will be providing the commission with substitutions or summaries of the classified information, which Pohl will have to review to determine if they are adequate replacements. The prosecutor aims to have all the information to the defense lawyers or Pohl by Sept. 30.

Defense lawyers on Thursday expressed concerned that the ten categories would be too restrictive. But Pohl assured them the framework was starting point and that they could file discovery motions that fell outside the categories.

“I’ll remind you of that somewhere down the line,” Bormann said.

Another point of disagreement Thursday was whether multiple copies of the same document must be provided or if, as the prosecution contends, it can make the "noncumulative" determination and decide whether providing multiple copies of the same information would be redundant.

Defense lawyers contended that receiving a single copy of a particular document, such as a memorandum on interrogation techniques, may not suffice because they want to know, among other things, who received the document – which might be shown in multiple copies.

The defense’s interest in “distribution channels,” Connell argued, was particularly important in communications between the White House, Department of Justice and CIA on the RDI program. He and Bormann argued that the judge had to determine what was cumulative and not leave it to Martins' team.

David Nevin, the lead attorney for Khalid Sheikh Mohammed, disagreed. Under Brady, he said, “it all has to be provided.”

Pohl scheduled a closed hearing for Friday for the parties discuss what classified information may come up in future sessions.