Government to Allow Black Site Investigations; Defense Says Huge Gaps in Torture Discovery Persist

Defense attorney Alka Pradhan criticized the quality of the evidence provided by the government. 

Guantanamo Naval Base, Cuba – Nearly six years into proceedings, prosecutors and defense teams in the Sept. 11 military commission remain worlds apart over the level of detail the government should provide about the abusive treatment of the five defendants in CIA custody before their arrival at Guantanamo Bay.

In combative oral arguments Thursday, lawyers galvanized inside their polar opposite postures: The government claims that the discovery process on the CIA interrogation program is complete while defense counsel see it as a "watered-down" cover-up of "state-sponsored torture."

The lawyers also traded sharp exchanges over the government’s attempts to limit the ability of defense teams to independently investigate the CIA program beyond what the prosecution has provided. The government relented on one key issue, however, rescinding a ban from last fall on defense teams conducting investigations at suspected black site locations.

Alka Pradhan, a civilian attorney for Ammar al Baluchi, accused the government early Thursday of orchestrating the discovery process to hide Bush-era crimes.

“The government is here carrying that water for the CIA,” Pradhan told the judge, Army Col. James Pohl.

Defense teams have received about 17,000 pages of discovery on the CIA’s controversial program, which is now disbanded. The vast majority of the documents provide summaries and substitutions of classified evidence that Pohl has approved as adequate representations that put the defense teams in substantially the same position as if they had the original documents.

The summaries do not include specific dates, black site locations or names of interrogators. Pradhan insisted they are not adequate. She added that an index of CIA material provided by the prosecution has exacerbated problems because it contains hundreds of inconsistencies and errors when matched against the summaries as well as findings by the Senate Select Committee on Intelligence.

“There is no way we can rely on the summaries,” Pradhan said.

She argued that the information provided to the defense was “grotesquely misleading.”

A member of the prosecution team, Jeffrey Groharing, took offense at the notion the prosecution had intentionally confused the defense teams.

“I categorically reject all of those comments,” Groharing said.

He said that the process of summarizing millions of pages of documents was “painstaking” and would naturally lead to some mistakes, in addition to mistakes contained in the original documents. Ideally, he said, opposing litigants should work together to make corrections in these types of situations.

“Regrettably, we do not have that here,” Groharing said.

The Military Commissions Act of 2009 bars motions to reconsider orders approving summaries and substitutions of classified evidence. Defense attorneys claim that this week's motions do not run afoul of the rule because they are based on changed circumstances.

Pradhan told Pohl he should order the government to hand over the six-million pages of evidence that the Senate Select Committee on Intelligence relied on to produce the 2014 Senate Torture Report. A redacted version of the report’s executive summary is publicly available; the full 6,700-page report and its underlying documentation remain classified.

As the case moves forward, defense attorneys plan to argue that past torture taints statements their clients made in 2007, after their transfer to Guantanamo Bay. They also intend to use the evidence to mitigate against the death penalty.

This week, the 28th  pretrial session in the case, saw two days of open arguments. In between, the parties waited for new guidance by the government on previously announced restrictions on defense teams’ ability to investigate the treatment of their clients at the black sites.

In one, the government ended its prohibition on team members with security clearances from traveling to suspected black site locations and asking questions of foreign nationals who may have knowledge of the CIA program. Groharing told Pohl that teams can now use open-source documents like NGO reports and journalistic work to plan and conduct investigations, so long as they do not reveal classified information. (The prosecution still opposes defense motions asking Pohl to direct the government to provide the specific locations of the sites and to facilitate access to whatever remains.)

The government is keeping its prohibition on defense teams independently contacting current or former CIA employees and contractors who participated in the black site program. The current guidance requires defense lawyers to make requests through the prosecution office.

James Connell, the lead attorney for Ammar al Baluchi, told Pohl that the ban created a “structural conflict” within the commissions system: The law requires the attorneys to prepare a proper defense while simultaneously threatening them with prosecution for doing so.

“The primary duty of defense counsel is to investigate,” Connell argued.

Groharing told Pohl that the teams have enough information to prepare their arguments related to the black site years.

“Right now, the defense is in a position to paint a very vivid picture,” the prosecutor said.

He added that the defense lawyers have the “best source” of information about past torture – their clients – and that the teams should instead direct their investigative resources towards “the actual facts” of Sept. 11, 2001.

“None of this has anything to do with that,” Groharing said.

James Harrington, the lead attorney for Ramzi bin al Shibh, said that Groharing's remarks were “preposterous” and showed “a total ignorance of what a capital case is all about.”

Defense lawyers have learned information about the CIA program from their clients but also say that the severity of the treatment has affected their clients' memories and brain functioning.

Litigation over access to the witnesses is pending. Both Connell and David Nevin, who is the lead counsel for Khalid Shaikh Mohammad, believe that they are operating under a conflict due to the threat of criminal prosecution for contacting CIA witnesses.

In fact, Nevin did not actively participate this session in oral arguments on motions unrelated to the government’s prohibitions. In several instances, Nevin told Pohl that he would like to make arguments for his clients but could not do so because of the ongoing conflict.

“That’s your choice,” Pohl said on Thursday morning.

“I don’t have any choice,” Nevin responded.

When Nevin did try to chime in on the investigation restrictions, Groharing told Pohl he wasn't sure Nevin should be able to comment given his earlier stance that he could not fully participate.

Pohl told Groharing that his comment was "unnecessary." Groharing apologized.

"But I couldn't resist," he added.

In meeting with reporters after the hearing, Nevin said that he and his team would review the week’s events before deciding how to participate for the next session scheduled for the end of April.

Pohl has not set a trial date for the case.