UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT. [The Military Commission was called to order at 1013, 17. MJ [COL POHL]: This Commission is called to

Transcription

1 0 0 [The Military Commission was called to order at 0, January 0.] MJ [COL POHL]: This Commission is called to order. All parties are again present that were present when the Commission recessed, with the exception we have added Ms. Baltes. Please put your detailing and qualifications on the record. ATC [MS. BALTES]: Thank you, Your Honor. I, Joanna N. Baltes, have been detailed to this Military Commission by the Chief Prosecutor's office of Military Commissions appearing as special trial counsel as a representative from the Department of Justice. I am qualified under R.M.C. 0 and have been previously sworn in accordance with R.M.C. 0. I have not acted in any manner which might tend to disqualify me from this proceeding and the detailing document has been marked as AE? MJ [COL POHL]: Thank you. Prior to meeting here I met with counsel to discuss a number of motions. We have approximately ten to go through. We went through the order of them. The first motion was AE, defense motion to abate proceedings until such time as the prosecution is prepared to proceed. Subsequent to filing that motion, Defense, you filed a motion to withdraw as moot, correct?

2 0 0 LDC [MR. KAMMEN]: Yes, sir. MJ [COL POHL]: I granted that. So that one is now disposed of. The second one I want to discuss is AE, a government motion for public access to open proceedings of the Commission via closed-circuit television transmission to remote locations. Last week I signed an order granting the Government motion. Due to logistics, at the time I was unable to give defense time to argue on the motion because of the proceedings scheduled today. As I told the defense at the 0, I did that because of the timing; however, I will give you an opportunity, if you wish, to be heard on the motion as to whether or not it should not be granted or be modified in any way. Defense, do you wish to be heard ---- TC [MR. MATTIVI]: I apologize for interrupting. According to Court's order AE you asked us to put on the record at the beginning of the proceedings these proceedings are being transmitted via CCTV to three remote locations in the United States according with the order dated January, 0. I wanted to put that on the record. MJ [COL POHL]: Okay. Thank you, Mr. Mattivi. Defense, do you wish to be heard on AE?

3 0 0 LDC [MR. KAMMEN]: Yes, very briefly, Your Honor. We understand the logistics and certainly we at this time don't see any -- it would serve no purpose to try and modify what the Court has done. And our understanding is that when a member of the general public goes to Fort Meade, if they drive up to Fort Meade and they say they want to attend the Commissions proceeding, that by presenting some form of government issued ID, they are allowed to drive into the post, at least to wherever the Commissions -- the viewing theater is without any particular inquiry beyond what -- a very cursory inquiry, and that there are no judgments being made as to who is appropriate, who is not as long as they have ID. So certainly if that proves to be the way it occurs, and then once people get to the theater they are admitted so as long as there is seating, and that is certainly appropriate as an interim measure to make these proceedings as public as possible. We have learned over the course of the last few weeks, Your Honor, and we simply wanted to alert the Court, that as part of the habeas proceedings, apparently it is common for habeas for there to be streaming video, closed-circuit TV, if you will, between locations here in

4 0 0 Guantanamo, presumably this courtroom, and the United States District Court for the District of Columbia. And so we may at a future time and, in fact, probably will ask that the remote viewing site for the public be moved to the District Court which would have two or three, we think, important improvements in the process. First, of course, it is more easily accessible than Fort Meade. Secondly, of course, it is -- Fort Meade, as a closed facility, not all the entrances are open. I understand there is quite a lot of secure installations at Fort Meade, so it becomes rather -- it may become rather complicated for -- and intimidating for the general public to go there. Thirdly, of course, to the extent things are streamed from one courtroom to another courtroom, the spectators understand and appreciate the significance of this. So we wanted to alert the Court to that. I suspect the Court will make inquiries as to how well the Fort Meade process works. We certainly will as well. And -- but our goal, so we can be clear, is that we want the widest possible ability of the public to see these proceedings, and we think that it will prove to be more efficient and advantageous if that occurs in Federal Court. We wanted to make the Court aware.

5 0 0 MJ [COL POHL]: Mr. Kammen, I think I understand. You may seek a modification in the future? LDC [MR. KAMMEN]: Yes. MJ [COL POHL]: If you will file appropriate motion, we will address it at that time. LDC [MR. KAMMEN]: Absolutely, yes, sir. MJ [COL POHL]: Thank you. Trial counsel wish to be heard on this issue? TC [MR. MATTIVI]: Judge, we obviously share the defense's intent in making these proceedings open and transparent it was our motion to open the proceedings up to the general public by transmission. We look forward to hearing feedback on how well the viewing went ---- MJ [COL POHL]: Mr. Mattivi, you need to slow down a little bit. The interpreters are making demands. Go ahead. Blinking me. TC [MR. MATTIVI]: Sorry, I didn't have the light on. MJ [COL POHL]: Okay. TC [MR. MATTIVI]: We look forward to hearing feedback from Fort Meade as to how the proceedings are accessible today. We anticipate that it will be as positive as it was at the arraignment. And if there is something the defense can think of to make them more accessible, we are certainly

6 0 0 willing to confer with them about that. Our experience is that it is no more onerous to get on to Fort Meade than it is to get into a Federal courthouse, so we are not sure how that would make it more available to the general public. But if there is something there, we are willing to consider it. Perhaps we can join the motion when it is filed. MJ [COL POHL]: Thank you, Mr. Mattivi. The next motion I wish to address deals with AE dealing with the defense motion concerning JTF-GTMO's current policy of reviewing client mail. Now, the motion itself we may not get to until tomorrow, but defense you've indicated that you wish to ask the Commission to order two witnesses for the motion. At this time we will address simply the motion to compel component of the underlying AE. Lieutenant Commander Reyes? DC [LCDR REYES]: Good morning, Your Honor. Defense recently filed a motion to compel two witnesses. The witnesses were Admiral Woods and also a member of the privilege review team. The reason why these witnesses came into being was because the Government in their response to our motion had requested this Commission adopt the written communication policy which was ordered by Admiral Woods. We 0

7 0 0 believe those two witnesses are both relevant and necessary. Firstly, as to -- as to the member of the privilege review team, as evidenced in the filed -- as evidenced in the filed motion, Admiral Woods created a policy in which all legal mail will be submitted to the privilege review team for review. We believe that that individual or member of that team should come to this Court and testify as to exact procedures, the chain of command, and also so we can get an understanding fully, this Commission can get an understanding of exactly what are the parameters of their review of what they are doing. I believe that the Government has demonstrated that this witness is both relevant and necessary when it also placed on its witness list a member of the privilege review team. MJ [COL POHL]: Commander Reyes, why would we need a member of the review team itself to discuss who they work for and what they do? Isn't that simply a matter of hopefully a written SOP or something, in that one particular individual may or may not have complete knowledge and one particular individual may or may not have current knowledge of what the rules are? So aren't we really just talking about the written policy itself, and then we go down to say how it goes down?

8 0 0 Do you understand what I'm saying? I don't understand how one member of the review team today comes in today, says here is how I think our duties are, moves the discussion along since we are really dealing with Admiral Woods' order. DC [LCDR REYES]: I think actually what was also evidenced in the 0 conference that we discussed about was really who does the member of the privilege review team work for. I think that is also a question in regard to enforceability. I think there is an issue here as to whether or not that member of the privilege review team can come before this Court -- is forbidden from coming before this Court and actually testifying. I think that underscores the major issue that we need to address here because, according to the policy, Admiral Woods is supposed to be the person who controls the privilege review team. It sounds like from what we are getting here and what we need to clarify on the stand is exactly how much control, if any, does Admiral Woods have in relation to these privilege review team members and also how much control does this Commission have in regards to that member of the PRT. Because if the Government comes back and says, Your Honor, some other government organization, the Department

9 0 0 of Justice will not allow this person to come in and testify at this proceeding, then that completely underscores exactly the point of why their testimony is relevant and necessary, just so we can understand left and right parameters of their responsibilities, of who their chain of command is. MJ [COL POHL]: The question is who do -- who does the privilege review team work for and who controls whether or not they can testify. Why do we need -- why do we need the privilege review team member to come in to say that? DC [LCDR REYES]: We also -- well, I think it is, I think what is also important to Your Honor for this particular case is the fact that we know these PRT members work for law enforcement/intelligence agencies so we kind of have to explore exactly. If we are asked to place our trust on these members of the privilege review team, give them our legal communications, we have to explore, the defense does, exactly what agency do they work for, what responsibilities do they have, because we are being asked essentially to place a big deal of trust on these organizations that have an adverse interest against the accused, and I think that also needs to be explored as well. MJ [COL POHL]: I don't disagree with you that if a PRT is put in place to screen the accused's mail or communications

10 0 0 that the defense has an interest of who these people are and what their background is. But that strikes to me as an issue down the road, once the decision has been made to have a PRT in place to screen defense mail. And that is not the motion before me. Rephrase that. The mechanics of that is not before me. This is why -- this also will go with Admiral Woods's testimony and, quite frankly, if the Government wants to call a PRT member, it goes to them, too. What I have before me is Admiral Woods' order that will be followed. Until we get the left and right bounds, to use your term, of what that order says, how it is mechanically implemented, which is what I'm hearing you talking about, doesn't strike to me to be ripe at this time. DC [LCDR REYES]: I think it is, Your Honor. If we are basically unpeeling this onion through the process here the Commission finds it is really not workable, the Commission finds the privilege review team actually doesn't have -- is not as walled off as the order makes it out to be -- see, the order is essentially silent as to a lot of basic questions. So why do we need to go further into the difficulties of implementing the order when a lot of issues can be fleshed out right now on the stand?

11 0 0 I think when Commander Welsh testified last hearing, he essentially highlighted how there are some ambiguities in the order. I think in the hearing the Commission identified how the order would just -- what they are doing before the cursory review wasn't practical. So for us to say that we should just let it all play out is essentially just inviting more and more and more litigation. MJ [COL POHL]: Okay. Now, what about Admiral Woods? Why do you need him? DC [LCDR REYES]: I think -- Admiral Woods, I think, the Government placed as relevant in this case because they have asked the Commission here to adopt his order. Now by doing that, I think, once again, same application with -- same rationale with regard to the privilege review team. We need to set out exactly what was -- first, what was his intent in applying this order when it came out a couple months after your order, Your Honor. We also need to examine and explore exactly how this order is supposedly implemented. And I think what is evidenced by what has occurred in the last two months with Your Honor's very simple order which is stamp the mail, it goes into the defendant. I think a lot of the confusion on how JTF was implementing that order highlights the fact that some of these issues need to be

12 0 0 resolved right now as opposed to two months from now when we are trying to introduce documents to the defendant so we can prepare his death penalty case. I also believe that Admiral Woods is relevant because he is the final arbiter on what exactly constitutes legal mail. He is also the individual in which the privilege review team purportedly is supposed to go to for disclosures. Moreover, Admiral Woods can then take any disclosures given by the privilege review team in regards to the review of the legal mail and disclose that to other individuals. Who are those other individuals -- excuse me, what circumstances are we talking about? I think if we are going to be asked to place trust upon this order and this privilege review team and with Admiral Woods to keep attorney-client confidences, then we need to explore the parameters of that, as opposed to waiting until if this Commission decides to grant the privilege review team, which we believe that it shouldn't. If it does, we then have to do a process of elimination, come back to this Court with some more complaints, as opposed to just resolving it right now, Your Honor. MJ [COL POHL]: Okay. Trial Counsel, do you want to be heard on the production of these two witnesses?

13 0 0 ATC [CDR LOCKHART]: Yes, thank you, Your Honor. Your Honor, I would like to go through a little bit of the procedural background just so that all the parties are aware of where we are at. The Government is simply asking the defense to comply with the rules, comply with R.C.M. 0 in requesting a witness. The notification that the Government has provided did not articulate and still has not articulated why either one of the two witnesses that have been requested are necessary and relevant to address a fact in issue in this motion. The motion is the Government requesting Your Honor to adopt the admiral's order. It is not implemented as of yet. It has not been implemented for this accused. I think it is very important that, as the defense pointed out, the last time we spoke about this motion that we are talking about this accused and only this accused; we are not talking about it being implemented to any other detainee. And as of today, this order has not been implemented to the accused. That is why the Government is asking Your Honor to adopt that, because of those steps. As I think Your Honor astutely points out to the defense, a privilege review team member is not yet an issue. The first request that the defense makes to have a

14 0 0 privilege review team member to testify, they would testify about procedures that they have as yet not implemented for this accused. They would testify about procedures that are not yet applicable. That to me, to the Government, does not sound as though it is ripe. If in the future, if Your Honor adopts this order and the motion that we will discuss later and the defense has challenges to the process, to the chain of command, then they certainly can file a motion, and they are certainly welcome to request production of a member that has actually participated in review of this case. Until such time, the Government does not believe that the defense has met their burden of articulating why a privilege review team member would be relevant and necessary, and the Government shares in Your Honor's concerns about whether or not that would be the appropriate witness to talk to about who they report to. The second issue that the Government would like to address is Admiral Woods. The defense also requested the production of Admiral Woods. That request was made last week. Again, including their assertions today, the defense has not shown why the testimony of Admiral Woods would be relevant or necessary. The defense continues to state that the Government made him necessary by asking Your Honor to adopt the order.

15 0 0 The order is exactly what it states. It is a written order that is to be implemented if Your Honor adopts it. Everything is spelled out clearly in writing. The defense specifically states that they would like to explore that with these witnesses, and that is not the purpose of the hearing today. Admiral Woods' order is clear. It dictates the terms of it. If at some point in the future the defense does not believe that those -- that order if it is adopted by you is followed, they are certainly free to file motions challenging that. They are also free to inquire about the process, to inquire about how it has been working. But I do think it is very important to note that this process, the PRT, has not been implemented in this case yet and, therefore, the Government believes the production of these witnesses or this motion is not ripe. The law is clear. Defense counsel must articulate why they are relevant and necessary to settle a fact in issue in the matter before the Commission and the defense has not met their burden as of yet. MJ [COL POHL]: Commander Lockhart? ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: Let me ask you a question.

16 0 0 ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: Who does the PRT work for? ATC [CDR LOCKHART]: I appreciate you asking me that, sir, because I did want to address that. Without -- let me rephrase that. Specifically to this accused, if you adopt the order, the PRT would work for the Court. You would be the final arbitrator of any -- of any issues. And that is one of the distinctions that the defense counsel continues to say is that Admiral Woods is the final arbitrator. It specifically and clearly states within the order that unless it's in front of a military judge, and then that military judge or that court would be the final arbitrator. And I understand, sir, we can get into the details when we articulate that motion, but the PRT, the whole purpose of this is to have it walled off from the defense, from the prosecution, and accountable to the judiciary in a case that is before a Military Commission. MJ [COL POHL]: Who selects the PRT? ATC [CDR LOCKHART]: I believe, sir, initially the members are selected by the Government. If Your Honor had an issue with one of the team members, Your Honor certainly could invite that attention. These are members -- and the way in 0

17 0 0 this process that it was made is they were selected as the same members that have been doing the habeas privilege review team, a process that the defense has been requesting for years. MJ [COL POHL]: If these commission -- or these PRT members currently are members of a habeas team ---- ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: ---- are they permitted to do Commission work under the federal judge's order? ATC [CDR LOCKHART]: They are, sir. There was actually a modification where the Department of Justice specifically went in and requested of Judge Hogan that these exact members be appointed to the Military Commission, and I can provide Your Honor with a copy of that order at our next recess. The way that it was set up in the order is they cannot participate in any substantial proceedings, meaning they can't testify, they can't participate with the prosecution, they can't participate with the defense. They are owned by the judiciary. And the habeas individuals specifically sought leave from Judge Hogan to allow the same members to participate in the walled-off proceedings, the walled-off review of this legal mail.

18 0 0 MJ [COL POHL]: Are they -- can they testify at a Commission proceeding? I mean, is Judge Hogan determining who can testify at a Commission proceeding? ATC [CDR LOCKHART]: As of right now, as of today, sir, we have been interpreting the order by Judge Hogan they cannot testify in a substantial matter. If these were required to testify, we would request that Judge Hogan allow them to do that. I don't know, obviously, what he would rule. MJ [COL POHL]: So what your proposal is, we have two judges, one Article III judge, an Article I judge, who then have the same individuals but subject to rules by the other judge? ATC [CDR LOCKHART]: That is one interpretation of that, sir. MJ [COL POHL]: Well, that is just what you told me. ATC [CDR LOCKHART]: Yes, sir. But understanding that if the privilege review team is implemented by you, obviously you would have control over them. If one of the members then did testify, I would believe they would be disqualified from then participating in any future privilege review teams. So it is not a complete bar to it, but it would then disqualify them. MJ [COL POHL]: See, these issues we are talking about,

19 0 0 again, I don't want to get into the substance of the order itself, deals with how the order is to be interpreted, correct? I mean, do you think -- do you believe the order as written or signed by Admiral Woods is so clear on everything that there is no need for him, his testimony? ATC [CDR LOCKHART]: I think that his testimony is not ripe at this point, sir. The order has not been implemented with this accused. If the order is implemented, it is actually implemented, I'm sure you know, by you and you would control the dictates of what the order meant. MJ [COL POHL]: You are asking me to adopt an order and then I -- written by somebody else, to interpret it the way I think it ought to be interpreted, regardless of what the author's original intent was? ATC [CDR LOCKHART]: Yes, Your Honor; I believe you have leave to do that. MJ [COL POHL]: Consequently, the order simply is nothing more than a government proposed order and regardless of what Admiral Woods' personal views of what is reviewed or not reviewed is now irrelevant if I adopt it, is that what you are telling me? ATC [CDR LOCKHART]: I don't believe I articulated it in that manner, if I can clarify what I believe. This is an

20 0 0 order that he has implemented for detainees. We are seeking the same terms of the order for the accused. It is obviously up to Your Honor whether you adopt all of the terms, none of the terms, some of the terms. We are going to be asking that you adopt all of the terms. If there is an issue in the future where defense counsel believes that a portion of the order is not clear or is not complied with, they would make a motion to Your Honor and Your Honor would be the final arbitrator of what the order means or how it is implemented. MJ [COL POHL]: So what you are telling me, just so I understand, is that this order is simply a -- for purposes of this Commission and this accused, because that is all I have jurisdiction over -- all the other detainees do not belong to me in a legal sense -- is simply a starting point that you want me to adopt in toto; but as far as what it means, any ambiguity that one side may have or I my have I can resolve? ATC [CDR LOCKHART]: Yes, Your Honor. MJ [COL POHL]: Therefore, Admiral Woods' personal view on what something means really doesn't make much difference? ATC [CDR LOCKHART]: In the matter before Your Honor, yes, that is correct, sir. MJ [COL POHL]: Okay. Thank you. Anything further?

21 0 0 ATC [CDR LOCKHART]: May I have one moment, sir? MJ [COL POHL]: Sure. ATC [CDR LOCKHART]: Thank you, Your Honor. MJ [COL POHL]: Commander Reyes? DC [LCDR REYES]: I think that's actually a question worth exploring with Admiral Woods, whether or not he agrees with the Government's interpretation of what his authority is and what your authority is. I think your colloquy with Commander Lockhart, with her statements paraphrased with the comments of "I believe," "I think so," "it is a matter of interpretation" clearly highlights exactly why we need Admiral Woods to take that witness stand. MJ [COL POHL]: Lieutenant Commander Reyes, if I issue an order in this case on this subject, do you have concerns that Admiral Woods won't follow it? DC [LCDR REYES]: I believe that there are areas in the document itself that actually gives Admiral Woods the leeway to not follow it. MJ [COL POHL]: Well ---- DC [LCDR REYES]: Yes, Your Honor. MJ [COL POHL]: ---- if I adopted the order in toto, I would agree with you, but that would be giving him the authority -- excuse me, the discretion to do various things.

22 0 0 DC [LCDR REYES]: Your Honor, if I may grab a document? MJ [COL POHL]: Sure, go ahead. DC [LCDR REYES]: I think, Your Honor, the answer to that question is a resounding yes, emphasized by the fact that this Court issued a very simple ruling. We stamp the mail, it goes in, no questions asked. In response to that ---- MJ [COL POHL]: Just to be clear, is there any evidence that that ruling has not been followed in this case? DC [LCDR REYES]: There was an affidavit that was introduced to this Commission which discussed about some legal mail not going in because there was some ambiguity of how they interpreted your ruling, Your Honor. In response to your ruling they issued a November nd order saying that the only kind of mail that can go into the detainee is things that is classified as privileged communication coming directly from the hand of the attorney. MJ [COL POHL]: My point, Lieutenant Commander Reyes, is that if I issue an order, okay, do you contend that -- let's say I issue an order in this case on this issue to remove any ambiguity that was apparently in the previous one and Admiral Woods does not follow that order. Isn't that the time you come for remedy from me? DC [LCDR REYES]: If you are talking about an entirely

23 0 0 separate order, not talking about the December th ---- MJ [COL POHL]: Let me tell you, at the end of the day, there is going to be a separate order. What it looks like is what we will discuss when we discuss the merits of the motion tomorrow. So there is going to be a separate order. It will not be -- it may look a lot like this one, may not look like it at all. I'm not getting to the merits of it. But there will be a separate order. DC [LCDR REYES]: Right. MJ [COL POHL]: If in your view it is not being followed, then you come to me for remedy, right? That is how the procedure works. DC [LCDR REYES]: I think, though, if the Government is introducing this order as a guideline for the Commission to follow, then I believe the Admiral's testimony is still relevant. A lot of it will depend on what you want to follow in the order. Will you follow paragraph through ; and if you do want to follow paragraph through, then the Admiral's testimony how he is going to implement through is still relevant. Also is the fundamental question of how much leeway or how much authority is the Admiral going to give to your order. I think -- that is why I brought up the November

24 0 0 nd memorandum that was issued just days after this hearing, which was their interpretation -- see this is what is going to happen. We will do a lot of back and forth here and we will issue an order. JTF, as evidenced by November nd, is going to do an interpretation of the order, then we will come back here. The problem we have here is that we have an ongoing capital case where we need to communicate effectively with the defendant. We cannot do that in this gray area. MJ [COL POHL]: How is Admiral Woods' testimony going to get rid of your articulated gray area? Under your theory, which you just said is no matter what I issue, somebody at JTF may interpret it in a way that you disagree with and we are going to be back here. Well, regardless -- again, I'm only talking about Admiral Woods testifying. I see that issue is going to be there no matter what. How can Admiral Woods' testimony clarify something that, first of all, has not been written, and secondly, you anticipate will not be followed in the future anyway? DC [LCDR REYES]: It goes back to the point of what is going to be our framework here, what is going to be our guidelines? Are we going to use what the defense offered as guidelines? That is a different question. Are we going to

25 0 0 use the December th order as a framework? I think it would be blind for us to be able to use that as a framework but yet not introduce the principal author, Your Honor. MJ [COL POHL]: Okay. Anything further? DC [LCDR REYES]: Your Honor, just a couple things. Just to highlight the fact that this order has been deployed, we do want to explore exactly how it's been deployed in relation to PRT members. There are occasions where some attornies in our office were not allowed to be present when PRT reviewed the legal mail. We want to know whether or not that procedure applies in this case or not. Also, too, there is an outstanding legal opinion that the Commission is aware of from the Office of the Chief Defense Counsel that states that this order -- we cannot follow this order, we are violating our ethical rules by signing onto this order. I think that is also ---- MJ [COL POHL]: Does that apply to this case? DC [LCDR REYES]: It applies to these attorneys, Your Honor. MJ [COL POHL]: Does it apply to this case? DC [LCDR REYES]: It does not. If the order ---- MJ [COL POHL]: So it doesn't apply to attorneys in this case for this case, correct?

26 0 0 DC [LCDR REYES]: Depending on how Your Honor rules. MJ [COL POHL]: Let me go back to another thing, is that doesn't also that opinion specifically say subject to what the judge says? DC [LCDR REYES]: I'm sorry, Your Honor? MJ [COL POHL]: Isn't there a judge exception to that opinion? DC [LCDR REYES]: On the ---- MJ [COL POHL]: By that I mean is that minds may differ on what ethical responsibilities one has. DC [LCDR REYES]: Sure, Your Honor. MJ [COL POHL]: At the end of the day the Commission decides, if it comes to that. DC [LCDR REYES]: Correct, Your Honor, yes. Lastly I want to highlight the fact that with regards to the privilege review team, we are not the only party that placed them on the witness list, the prosecution also placed a member of the privilege review team on the witness list as well. To say they are not relevant and necessary for this hearing all of a sudden kind of begs the question as to why did they put them on the witness list in the first place if they didn't believe they were necessary for the argument on these motions. Thank you, Your Honor. 00

27 0 0 MJ [COL POHL]: Thank you. Commander Lockhart? ATC [CDR LOCKHART]: If I may ---- MJ [COL POHL]: You will get the last word here, and then we will move on. ATC [CDR LOCKHART]: Yes, sir. Your Honor, I would like to confine my comments to just two areas that Commander Reyes brought up. The first is I would just urge the Commission to focus on this case, this accused and these attorneys. It was clear when we litigated this previously that the Government was confined to discussing this case, this accused and these defense counsel. I would simply ask for the same courtesy and that the same standard be applied, that whatever is happening with any other counsel and any other privilege review team specific to the detainees, that it be focussed on what occurs in this case. MJ [COL POHL]: Let me ask you a question, though. Is that -- correct me if I'm wrong, earlier did you not tell me that the December order has been applied to all other detainees except Mr. Nashiri? ATC [CDR LOCKHART]: That is correct. MJ [COL POHL]: Okay. So if I adopt your position, basically how all the other detainees are to be treated would at least establish -- how they are being treated would 0

28 0 0 establish how you intend to treat Mr. Nashiri in the future? ATC [CDR LOCKHART]: I don't believe so, sir. The Government would treat Mr. al Nashiri the way the judge dictated in his order. MJ [COL POHL]: What I'm -- okay. You are asking me to adopt this order in toto that applies to everybody else except for this accused? ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: Okay. If I do that, then my order will basically say treat this accused like every other detainee, correct? ATC [CDR LOCKHART]: At this moment in time, that's correct, yes, sir. MJ [COL POHL]: Okay. So, therefore, how the other detainees are currently being treated pursuant to this order will give us a factual predicate of how this accused will be treated if I grant your motion. ATC [CDR LOCKHART]: I believe that the analogy would then be the same as though we were to look at other defense counsel's behaviors would also lead you to believe how other defense counsel would behave. If you want to make that analogy ---- MJ [COL POHL]: I'm not making an analogy. I'm saying 0

29 0 0 you want to implement a set of procedures that are implemented for every other detainee except this person, this accused, correct? ATC [CDR LOCKHART]: That is correct, sir. MJ [COL POHL]: I am asking, if Admiral Woods would come in here, he would tell me how it is implemented for everybody else, therefore how it would be implemented for this accused and I grant your motion, I fail to see how that implementation goes to this other defense counsel conduct issue. ATC [CDR LOCKHART]: I understand what you are saying, sir. The second point I would like to address is defense counsel has several times now said that we, the Government, have placed a PRT member at issue. In our response we listed -- and I believe it was actually a supplemental response, we listed the possibility of calling a privilege review team member because in their case they made it relevant and we deemed that it was necessary. I think what defense is conflating is relevant and necessary for production of witnesses applies to the defense. The prosecution has the same standard, but they apply it themselves. If after the testimony or evidence that the defense put in at issue we believed it was relevant and 0

30 0 0 necessary, then we wanted to give notice. I think that's very different than saying we will call them and we believe and we are affirmatively asserting that it is relevant and necessary. Thank you, Your Honor. MJ [COL POHL]: Thank you. Commission finds that the defense motion to compel a member of the privilege review team to testify at this Commission hearing at this time is neither relevant nor necessary; therefore, that part of the motion is denied. Given the fact that the procedures currently in place apply to every other detainee except for this accused and the Government is asking me to order those procedures to be applied to this accused, Commission finds the testimony of Admiral Woods is relevant and necessary solely to the issue of how it is being implemented. I will restrict the evidence in the case to that. So in that sense the motion to compel the testimony of Admiral Woods is granted. Any question about the Commission's ruling? Defense? DC [LCDR REYES]: Your Honor, just for clarification so we can understand how much we can go into, we can actually go into the four corners of the ruling -- or the order and talk to him how we believe this particular provision is going to 0

31 0 0 apply, how ---- MJ [COL POHL]: No. What I want is how it is being applied. DC [LCDR REYES]: Okay. MJ [COL POHL]: Okay. If there is a certain part of the order not initially triggered yet, how he anticipates it to be applied to others. I'm talking about the practical implementation of his order. DC [LCDR REYES]: Okay. MJ [COL POHL]: If you drift beyond what I say, I will just cut you off. Don't worry about it. DC [LCDR REYES]: Easy enough, Your Honor. MJ [COL POHL]: Trial Counsel, anything further? ATC [CDR LOCKHART]: No, Your Honor. MJ [COL POHL]: To put on the record, we discussed time. My intent is to go until about 00 hours; we will take a lunch break to 0 and pick up after that. The next motion I believe is AE, a defense motion for consistent, coherent policy concerning classification of court proceedings. Defense, I believe that is your motion. ADC [MAJ DANELS]: Your Honor. Good morning, Your Honor. 0

32 0 0 MJ [COL POHL]: Good morning. ADC [MAJ DANELS]: The defense, in recognizing how important it is to the Government that we comply with the rules, generated this particular motion so that we have a bright-line rule with regard to how we are to treat the unclassified -- I'm sorry, the unofficial transcript, given that the official transcript has been determined to be classified at the highest level. MJ [COL POHL]: Let me see. Perhaps we can cut to the chase here. As I understand it, there is an unofficial transcript after each hearing put on the OMC website, correct? ADC [MAJ DANELS]: Yes, Your Honor. MJ [COL POHL]: That is something anybody in the public can read? ADC [MAJ DANELS]: Yes, Your Honor. MJ [COL POHL]: And it would appear to me nothing would prevent the defense from taking that unofficial transcript and using it in subsequent motions, correct, or any way you want to since it is out in the public? Do you believe you have a limitation on that transcript? ADC [MAJ DANELS]: Yes, Your Honor. MJ [COL POHL]: What is the source of that limitation? ADC [MAJ DANELS]: When we signed the protective order 0

33 0 0 the defense was signed up at any time they were put on notice by the Government that something is potentially classified, we then cannot comment. MJ [COL POHL]: Do you believe the unofficial transcript that is broadcast to the world is potentially classified? ADC [MAJ DANELS]: Taken with the fact that they have determined that the official transcript is classified at the highest level, and in that arraignment, the unofficial transcript ---- MJ [COL POHL]: Just ---- ADC [MAJ DANELS]: ---- mirrors the official transcript because the switch was never turned on. MJ [COL POHL]: Just to be clear, okay, the transcript -- the unofficial transcript that is put out contains no classified material. ADC [MAJ DANELS]: Yes. MJ [COL POHL]: Not supposed to anyway. It is scrubbed. There is a 0-second delay for that purpose. ADC [MAJ DANELS]: Yes, Your Honor. MJ [COL POHL]: The official transcript, the Commission, just like in a court-martial, is only considering an official transcript once authenticated by the military judge. True? ADC [MAJ DANELS]: Yes, Your Honor. 0

34 0 0 MJ [COL POHL]: So until that judge does that, there is no official transcript completed? ADC [MAJ DANELS]: Correct, Your Honor. But in the government's response it refers to the transcript as the "official/unauthenticated transcript." MJ [COL POHL]: Okay. I don't mean to cut you off, but let me ask the Government a question. I really think this really goes to them more than it does to you. I understand your dilemma. Trial Counsel, who is handling this motion? TC [MR. MATTIVI]: I am, Your Honor. MJ [COL POHL]: Mr. Mattivi, please. Is the unofficial transcript that is put out on your website -- let me rephrase that, on the OMC website ---- TC [MR. MATTIVI]: Thank you. MJ [COL POHL]: ---- a classified document? TC [MR. MATTIVI]: No, it is not, Your Honor. MJ [COL POHL]: Is the defense free to use that in any way, shape or form they intend to use it for? TC [MR. MATTIVI]: Yes, Your Honor. There are no restrictions I'm aware of on the use of an already published document. It is not classified. MJ [COL POHL]: Okay. Again, assuming there is no 0

35 0 0 classified portions of it, which wouldn't go on the website anyway, and then am I correct to say that the authenticated transcript will be presumptively classified? Is that the Government's position now? TC [MR. MATTIVI]: Yes, it is presumptively classified. MJ [COL POHL]: But it doesn't even exist at this point since I have not authenticated it. TC [MR. MATTIVI]: Correct. There is an unauthenticated version, and part of the process is getting it to the point of authentication. MJ [COL POHL]: But what you are saying, though, is the unauthenticated version is drafted by one group of court reporters, correct? TC [MR. MATTIVI]: Correct. MJ [COL POHL]: The unofficial website version is done by somebody else? TC [MR. MATTIVI]: Not only that, but if I can expand a little bit for purposes of clarification. I think the important thing to consider here is what is the source of each of those transcripts. The source of the unauthenticated/unofficial transcript is the audio feed that is subject to interruption in the event of inadvertent disclosure of classified information. It is a scrubbed, if 0

36 0 0 you will, version of the transcript. That is why it is not classified, that is why it is available for posting on the website and it is offered as a trial aid to the parties and for purposes of transparency to the public. The official transcript is made from the recordings that take place in this room, and those recordings run even in the event that the audio feed is cut. And that's the critical difference between the unofficial and the official. Because the official is based on -- or it is recorded in this room, even if the audio feed is cut there is potentially classified information contained therein. And part of the authentication process is determining whether that information is there or not. And because it is presumptively classified, we have to treat it as classified until we are certain that there is no classified information in there. I think that's the critical difference between the two, and that is according to the rules. MJ [COL POHL]: Currently there has been no -- up to this point in time, it would appear both would be identical if not -- depending for typos. TC [MR. MATTIVI]: I'm not aware of anything that happened last time that was classified, but we still have to treat it that way until we are absolutely certain because it 0

37 0 0 is part of our obligation to make sure the Government's secrets aren't disclosed in the course. MJ [COL POHL]: Thank you. TC [MR. MATTIVI]: Thank you. ADC [MAJ DANELS]: The defense gets the technical difference between how the two transcripts are generated, but when you have a situation where the words are identical and we are being told that the official/unauthenticated transcript must be treated as SAP, does that treatment then apply to the unofficial transcript that has been released to the public when the words are the same? MJ [COL POHL]: As I understand the Government's position, the answer is no. That if your source -- perhaps I -- if the source of your information is the website transcript, then you can use that for anything you want, even though it is going to be the same as the other. I mean, Government, am I misunderstanding your position? TC [MR. MATTIVI]: I don't know, Your Honor. MJ [COL POHL]: What I'm saying is, if you put something -- if you use the website transcript as your source document and later on somebody were to say, "Wait a minute, that was classified," you say, "No, it is not. It is right here on this source," wouldn't that solve the whole problem?

38 0 0 I'm a little slow here because I'm not -- what they are telling me is as long as your source document is the unofficial transcript -- oh, by the way, you don't have access to the other transcript anyway, do you? ADC [MAJ DANELS]: Yes, Your Honor. MJ [COL POHL]: The official transcript? ADC [MAJ DANELS]: The official/unauthenticated transcript. MJ [COL POHL]: You know, that is just the official/unauthenticated transcript, you don't have the official authenticated transcript since it's not been authenticated? ADC [MAJ DANELS]: Yes, sir. MJ [COL POHL]: If your source document is the website transcript, seems to me you are fine. Does that cause you any pause? That's what the Government just told me. I don't think they are disagreeing with me then. Does that cause you any pause? ADC [MAJ DANELS]: The defense's concern is the retroactive -- what appears to be retroactive reclassification. And I guess I'm not seeing the difference between the unofficial transcript and because it is on a website we can use it and the WikiLeaks documents that are on

39 0 0 a website but we cannot comment on the WikiLeaks documents because we have been told by the Government that those are classified. It is the same analogy as being told what is in the official/unauthenticated transcript is at the SAP level when we know that the words are exactly the same in the unofficial transcript. MJ [COL POHL]: First of all, your WikiLeaks analogy does not apply because the mere fact that a document appears in a public setting but is released, for the sake of discussion, legally doesn't change classification. That is just basic. A WikiLeaks leaker doesn't become a declassification authority by putting it on an open website. To me that is apples and oranges. The only things that I'm saying is there is theoretical discussions, but how does this impact on your ability to prepare your case if you can simply use the website transcript? I fail to see what harm you are suffering, if any. ADC [MAJ DANELS]: Well, if it is the Government's position, as long as we are citing to the unofficial transcript, despite the fact that the words are identical to the official/unauthenticated transcript, then we are not breaking the rules of classification and violating the terms of the protective order; there is no harm.

40 0 0 MJ [COL POHL]: Mr. Mattivi, as I understand, that is the Government's position, that as long as the source documents -- the source document, excuse me -- if the source document is the website transcript, then they have nothing to worry about, even though obviously the other transcript is going to have the same words? TC [MR. MATTIVI]: It seems like the hang-up here is the fact that, after the last hearing, it appears that the unofficial transcript is probably substantively similar to the official-although-yet-unauthenticated transcript. I think where this becomes clear is if and when we have a session when we have the audio feed interrupted and we have discussion of classified information in here that is going to be on the official transcript that doesn't show up on the unofficial transcript. That is the difference between the two. I agree with Your Honor, you are absolutely right. As long as the source document is the unofficial transcript that has been published not by a WikiLeaker but by the Government, then there is no problem. In fact, our position is that is helpful to the defense. We want them to have that as a trial aid just like we want it for ourself. MJ [COL POHL]: It appears to me that the issue has been resolved. I'm not sure -- the motion was consistent, coherent

41 0 0 policy concerning classification of court proceedings. I'm not sure this is a consistent, coherent policy, but it strikes to me that at the end of the day, the issue really is whether or not the defense can use the unofficial transcript as a source document without concerns of violating some classification issue or some classified issue, and in that sense, that part of the motion is granted. The part of the motion about having some type of consistent policy -- or a consistent policy, I think that part is denied because there is a reason for the differences. But again, in essence, the defense motion, I think, was a concern not to violate classified rules using the unofficial transcript, and that I think has been addressed. Would you agree with me there, Major? ADC [MAJ DANELS]: Yes, Your Honor. MJ [COL POHL]: Okay. Next I would like to address AE 0, which is renewed defense motion to allow in camera ex parte requests for expert assistance with limited notice to opposing party in compliance with R.C.M. [sic] 0. Now, Defense, at the 0 you indicated that you wanted me to also consider the position of the Convening Authority on this? LDC [MR. KAMMEN]: We want you to have that available. MJ [COL POHL]: There was a memo, okay.

42 0 0 LDC [MR. KAMMEN]: Yes. MJ [COL POHL]: At one point in time that was marked as AE 0, just for the record, and then it was unmarked because it really wasn't attached to either brief and it hadn't been filed as a motion by the Convening Authority. But since we are now going to consider it for purposes of the motion, I will re-mark it as AE 0 for the record so the record is clear what we are talking about here. As I understand the Convening Authority, we left this issue last time, Mr. Kammen, I said the Convening Authority says because both parties agreed with the de minimis notice procedure. LDC [MR. KAMMEN]: Yes. MJ [COL POHL]: I cut back. The Convening Authority has taken the position that the rule -- they read the rule that doesn't permit that and, therefore, essentially denied the defense request for de minimus notice. LDC [MR. KAMMEN]: Yes. I mean, the Court asked us -- the Court indicated, as I recall, that it was perhaps unclear what the scope of the Court's authority was to order -- whether or not they could order the Convening Authority to accept ex parte submissions by both sides. The Court asked us as a matter of comity to jointly address the Convening

43 0 0 Authority since between the prosecution and defense there was no disagreement. We did that. I believe, if memory serves me correct, Mr. Mattivi and I submitted our letter to the Convening Authority, I believe, on November the th. Because this is really important to the defense, we can't really proceed with requesting resources until we know the mechanics, we had asked the Convening Authority respond by, excuse me, November the rd if I recall. Frankly, and I don't want to speak for Mr. Mattivi, although he is aware of that request, it struck the defense this is a fairly simple request. And we heard nothing by November the rd because of the Thanksgiving holiday. We reached out to the Convening Authority, I believe, on December the th, and said, "When can we expect a response?" We heard nothing until December the th when we received the memorandum which I gather is now before the Court? MJ [COL POHL]: Yes, Mr. Kammen, yes. That's the AE 0 I referenced earlier. LDC [MR. KAMMEN]: And I have a copy of that. In which, not to be too glib, the Convening Authority not only said no, but heck no, and I think made it very clear -- and this is perhaps the troubling part of this, is that in any real world