UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 [The R.M.C. 806 session was called to order at 0913, 2 16 November 2018 . ] 3 MJ [Col PARRELLA ] : Th i s commission is called to order . 4 Thi s sess ion ha s been c l osed pursuant to Ru l e f or Mi l ita r y 5 Comm is s i on 806 for the purpose of a rg uing c l assif i ed mater i al 6 as indicated i n the previous closure orders. 7 8 9 Tria l Counsel, if you could please account for the membe r s of the prosecution who a r e present . CP [BG MARTINS]: Good morning , Your Hono r. Present for 10 the United States, Brigadie r General Mark Ma rtins, Mr. Robe rt 11 Swann, Mr. Edward Ryan, Mr . Clayton Tr ivett, Mr . Jeffrey 12 Groharing, Ms. Ni cole Tate, Majo r Chr i stopher Dykstra. 13 in the cour tr oom at co un sel tab l e, Mr . Dale Cox, Mr. Rud olph 14 Gi bbs, and Staff Sergeant Cl i fford Johnson . 15 doors are Mr . Pascual Ta var ez and Staff Sergeant Anton y Kiser. 16 Al l personnel have the necessary c l earances . 17 18 19 20 MJ [Col PARRELLA ]: Also Securing the Thank yo u, Tr ial Counse l. Defen se Counsel, if you can please account f or the members of the defense team that are present. LDC [MR. NEVIN]: Your Honor, for Mr . Mohammad, who i s no t 21 present, Da vi d Nevin, Lieutenant Colonel Poteet, 22 Ms . Radost i tz , Li eutenant Commander Cole , Mr . 11111111, 23 the appropriate cle a ra nces. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21881 UNCLASSIFIED//FOR PUBLIC RELEASE a l l wit h UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 MJ [Col PARRELLA ] : Thank you. Ms. Bormann? LDC [MS . BORMANN ] : Judge , good morning . On beha l f of 4 Mr. Bin'Attash , myself , Cheryl Bormann ; Mr . Edwin Per r y ; 5 Mr. Wil l iam Montross; Captain Brian Brady; and our s i ng l e 6 inte l ligence ana l yst who also is pe r fo r mi ng the duties of 7 defense secur i ty officer, Mr. 8 9 10 MJ [Col PARRELLA ] : Thank you. Mr. Harrington. LDC [MR. HARRINGTON ] : Judge, on beha l f of Mr . Binalshibh, 11 James Ha r r i ngton , Li eutenant Mishael Dan i elson , Al aina 12 Wi chner, and Douglas Ol ive r , al l wi th the appropr i ate 13 c l earances . 14 MJ [Col PARRELLA ] : Just to clarify, Ms . Bormann , you may 15 have sa i d this, and I apo l og i ze if you di d, but a l l of your 16 team have the app r op r iate clearances and r ead-ons? 17 18 19 20 LDC [MS . BORMANN ] : You know , I didn't, but that i s exactly the s tate of affa irs , ye s . MJ [Col PARRELLA ] : Thank you. Mr. Connel l . 21 LDC [MR. CONNELL ] : Good morning, Your Honor. 22 MJ [Col PARRELLA ] : Good morning. 23 LDC [MR . CONNELL ] : On behalf of Mr. al Baluch i , myself , MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21882 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLI C RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 ; Alka Pradhan; Benjamin James Connell; 2 Farley ; Lieutenant Colone l Ster l ing Thomas ; and All have appropriate clearances and tickets. 3 4 MJ [Col PARRELLA]: 5 Mr. Ruiz? 6 -- DISO LDC [MR. RUIZ]: Thank you, Mr . Conne l l. Judge, Li eutenant Commander Furry, 7 Ms. Susan Lachel i er, Li eutenant Colonel Jennifer Williams, 8 Major Joseph Wilkinson , Mr. Sean Gl eason , Mr. , and Mr. 9 10 11 of Mr. al Hawsawi . and , and myself, al l on beha l f And we a l l have appropr i ate c l earances. MJ [Col PARRELLA]: Thank you, Mr. Ru i z. I also note that the Chief Defense Counsel, Br i gadier 12 13 General Baker , is present . Sir , if you would please indicate , 14 or account for any members of your team and whether they have 15 the appropriate read-ans. 16 17 CDC [BGen BAKER] : appropr i ate c le arances and read-on . 18 MJ [Col PARRELLA]: 19 Mr. Nev i n. 20 Sir , it is just me , and I have the LDC [MR. NEVIN]: Thank you. Your Honor, wi th the mi litary 21 comm i ss i on's permission, Lieutenant Colonel Poteet needs to 22 leave the courtroom at about qua r te r to ten to attend to other 23 business. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21883 UNCLASSIFIED//FOR PUBLI C RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 MJ [Col PARRELLA ] : 2 LDC [MR . NEVIN] : 3 MJ [Col PARRELLA ] : That's f i ne. Than k you. Thank s, Your Honor. Okay . Mr . Connel l , I think at the 4 close of , or t owards the end of yesterday's sess i on you 5 indicated that you wou l d have a proposed order of march for 6 the commission; i s that correct? 7 LDC [MR. CONNELL ]: Yes, Your Honor. 8 ove r nment has an i ssue that the I unde rstan d that 9 10 11 12 13 14 15 16 17 18 MJ [Col PARRELLA ]: Okay . I understand. Brigadi er Genera l Ma rtins . CP [BG MARTINS] : Your Honor , I wa nted t o disc uss two 19 20 21 LDC [MS. BORMANN ] : General Martins, I think I ca n save 22 you r breath. 23 to take the position that we should be asking fo r rulings on We are going to wit hd r aw those. We don't wa nt MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJM;TJ88tlfff II ,s, eer II 21884 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 the fly and not give publ i c not i ce. 2 notice; it's III , I believe, on the same se rie s. 3 wi thdrawing the ones we f i led yesterday . 4 5 6 7 MJ [Col PARRELLA]: Okay. So we already Thank you, Ms. Bo r mann . And i n l ight of that, Genera l Mart i ns , does that moot your issue? CP [BG MARTINS]: Yes, Your Hono r, it does. 10 11 There may be I'm not sure. 8 9 So we are If it arises, Your Hono r, we'll address i t, but that resolves the immediate i ssue. MJ [Col PARRELLA ]: Thank you. And just to make sure 12 we 're all tracking, it's still the posit i on of the comm i ss i on 13 that we ' r e going to go ahead and 14 15 16 17 I know the commission already took unclass argument on but in l i ght of the parties' request, we will go ahead and defer any closed argument on those two ser i es . Okay . Absent any other objections to the proposed 18 order of ma rc h , the com mi ss i on wil l adopt this order of march 19 as proposed by Mr. Connel l , and we wi l l start wit h th 20 21 ADC [MS. PRADHAN ] : Good morning, Your Honor. 22 MJ [Col PARRELLA]: Good morning, Ms . Pradhan . 23 ADC [MS . PRADHAN]: Your Honor, br i ef l y before I beg i n MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21885 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 350, you ve r y considerate l y on Monday morning i nv i ted us to 2 gi ve you the correct pronunc i at i ons of our names. And i f I 3 may , on the understand i ng that not eve r ybody a l ways gets it 4 r i ght even when you have known me for a l ong t i me , the 5 pronunc i at i on of my last name is Pradhan , wi th a soft T- H. 6 MJ [Col PARRELLA]: I unde r stand. I apprec i ate that. 7 wi ll not prom i se that I wi ll al ways get i t right, but I wi l l 8 endeavor to do my best . 9 10 11 ADC [MS . PRADHAN]: in Ohio. I Thank you . I unde r stand, Your Honor. I gr ew up I'm used to i t. Your Honor , wi th r egards which 12 again I wi l l take together, i n open sess i on, of course, we 13 have to protect clas s ified information and so we made ce r tain 14 representations i n the hypothet i ca l that we don't have to make 15 16 17 18 19 20 21 22 23 21886 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21887 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21888 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21889 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 touched The second area of i nquiry, Your Honor, which I br iefly in open session , 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21890 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 MJ [C ol PARRELLA ]: 2 3 two And in that respect, there are sort of I see it. 4 5 6 7 8 9 10 11 12 So why should the comm i ss i on at th i s stage order a deposit i on 13 int o that? 14 procedures about interviewing or attempt i ng to interview 15 individuals who had a direct and substantia l role in that 16 bl ack s i te time. 17 In other words, there is sort of established Why should the comm is s i on specifically order a 18 depos it io n and allow that sort of i nquiry , sort of side 19 stepping the otherwi se estab l ished process with respect to 20 21 22 this indiv i dual? ADC [ MS. PRADHAN ] : Your Hono r, for two reasons. First, obvious l y , the deposit i on is for a l so the pu r poses of 23 But setting 21891 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 that as i de, I understand Your Honor's quest i on to be why do we 2 need a deposition under oath from this individual about 3 cond i tions in the bl ack s i tes? And the reason for that is 4 5 6 7 8 9 10 11 12 13 The othe r point of refe r ence that I wi ll go into some 14 deta i l about when we di scuss 15 se r ious concerns about is that the r e is the r e are 16 17 18 mi litary comm issi on can imag i ne , is a s eriou s a r ea of conce r n 19 when we ta l k about the statements that led to the 20 21 s t atements. MJ [Col PARRELLA ] : So if that's the case, i n either the 23 something that occur r ed at the black site, cou l dn't the MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21892 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 defense simply request him as a witness? And i f he meets the 2 standard , you know , that's established in the l aw for hi s 3 fo r that test i mony to become r e l evant and necessary , the 4 comm is s i on could order it . 5 6 I guess , why a r e we -- you know , we're open i ng up an area here. 7 8 ADC [ MS . PRADHAN]: 9 We l l , You r Hono r, we need to know -- 10 there may very well be r easons, r ight? 11 ou t of the r ealm of possibil it y -- in fac t, it is probable~- 12 that the r e are incidences that It i s certainly not 13 14 15 16 17 The mil i tary commission , I'm sure , app r eciates the so r t 18 19 20 21 22 23 21893 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 Secondary to that , Your Honor -- and I apologize i f 3 this wasn't c l ear, but secondary to that are the add i tiona l 4 cons i derat i ons that 5 6 7 8 9 MJ [Col PARRELLA]: Thank you. 10 ADC [MS. PRADHAN ] : Thank you, Your Honor. 11 I unde r stand. Subject to your quest i ons. MJ [Col PARRELLA ] : 12 I have none. Thank you. Mr. Nev i n . 13 14 LDC [MR . NEVIN]: Your Honor , just to add two sma l l 15 matters to what Ms. Pradhan said, first i s j ust to call your 16 attention to the fact that we , I think in this session we 17 18 19 20 wi ll say, and the mi litary comm i ss i on may not be aware of 21 this: When we meet with members of the guard force at Echo II 22 and when we went to when my team made a vis i t to Camp VII , 23 these men and women do not identify, do not ident i fy MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21894 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 themselves to us by name. They have pseudonyms that they use 2 even in conversation wi th us , so -- a l l apart from being on 3 the reco r d . So we hear - - and I understand that this, the 4 idea behind this is to protect these people' s safety . 5 6 7 8 9 10 that's 11 to get to the bottom of. when you get down to i t, that's what we are trying And so you might say in th i s 12 13 14 Now , why would he do that? So all around us are 15 16 17 It raises a whole raft of quest i ons about -- fair quest i ons, I 18 s ubm i t -- about why he decided to do that , what was i n i t for 19 hi m, who suggested that he do it, and so on. 20 21 And second, I understand the mi l itary commission to have asked about -- to have been asking about Pr otective 22 Order #4, the protocol for contact i ng these witnesses. 23 things about that. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21895 UNCLASSIFIED//FOR PUBLIC RELEASE Two UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 wi tness who had direct and substantia l contact , and I believe 4 that his testimony would show that . 5 outset anomalous or odd to me that he is not in the l ist of 6 persons who are considered to have had dir ect and substant i al 7 contact. And so it i s at the 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 I th i nk it's fundamentally unfa ir. I assume that the 23 reason for the UFI system and process in the f ir st pl ace is to MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21896 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 But here is a guy who has revea l ed his identity. And 6 I th i nk you can ask why , certainly, as I sa i d befo r e. 7 addition, I think it's fundamentally unfair to say ha vi ng 8 re vealed my identit y, wait , no w I want to ha ve the protect i on 9 of the protocol of Protective Order 10 11 But in which i s des i gned to protect my ident i ty. I wo ul d sub mit to you that he, I mean , I th i nk for 12 want of a better way to put i t, has waived, or has been 13 overcome by events with respect t o the pu r poses f or Pr ote c ti ve 14 Order #4 and that protoco l . 15 Thank you . 16 17 18 MJ [Col PARRELLA ]: Thank yo u , Mr. Nevin . Ms. Bormann ? LDC [ MS . BORMANN ]: We with drew the because 19 the others had noticed al l of the i nformation we were going to 20 argue anyway. 21 di d not i ce, which is the work that he did for us. So I wa nt to ta lk a little bi t about the one we It is 22 attached to o ur fil i ngs in 23 It is ex parte because it is pr i vi l eged material. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21897 UNCLASSIFIED//FOR PUBLIC RELEASE I wo uld ask UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 you to rev i ew it. MJ [Col PARRELLA]: And the classification of that is what , Ms . Bormann ? 4 LDC [MS . BORMANN] : I be 1 i eve TS. 5 MJ [Col PARRELLA]: TS . 6 LDC [MS. BORMANN ]: The s i tuation that -- this was 7 unprecedented. Thank you . We were s i tt i ng here i n court and we were -- I 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 So we walked back and we're l ike -- I didn't believe MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21898 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 it. You know, frankly, you're l ike, okay, they made a 2 3 4 5 6 7 8 9 10 11 12 13 So you asked Ms . Pradhan how it i s and why it is that 14 we want to ta l k about dur i ng the deposit i on not only what he 15 di d wit h the materials tha 16 17 18 19 20 21 22 23 So there has to be some belief system based upon what MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21899 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Wi th that , I'm not say i ng -- I'm not say i ng that the 15 government, G -- small G, sitting over to my r i ght knew that. 16 I don't th i nk they did . 17 of us by this . 18 I think they were as surprised as any But the bottom line i s we don't know any of the 19 20 That' s what 21 we 're asking for. 22 t i me . 23 It's what we've been ask i ng for the ent i re And so for al l of those reasons , I'm ask i ng that you MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21900 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 grant the request. Do you have any questions? 2 MJ [C ol PARRELLA ]: I do not . 3 LDC [MS . BORMANN ] : Thank you. 4 MJ [Col PARRELLA ]: Mr . Ha r r i ngton , good morning. 5 LDC [ MR . HARRINGTON ] : 6 Th ank you . Good morning, Judge . Judge, just because of you r newness to the case, I think it mi ght help for 7 me to giv e you just a l ittle bit of backg r ound here. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21901 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 And one of the things, Judge , the reasons that we MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21902 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 But putting hi m under oath puts him in a different position. And if he has i n his mind morally that it's okay to 12 do that, to l i e because he has been sanctioned to do i ng that, 13 now he' s in a different position when he is under oath . And 14 he may wel l tell the same lies aga i n , but there's a potent i al 15 prob l em for hi m i n doing that, which may we l l l ead to an 16 17 18 19 20 21 22 23 21903 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 And then again, I'm stand i ng here tel l ing you things , 9 10 as you said yesterday, it's j ust a proffer; and I realize 11 that . 12 have just told you, there are many, many other th i ngs that 13 need to come out -- come f r om me as a witness in this case so 14 that it just enhances the need for our team to have 15 independent counsel in order for us to properly part i cipate 16 and represent our c l ient. But it's also a situation where, i n add i tion to what I 17 MJ [Col PARRELLA]: 18 LDC [MR . NEVIN]: Thank you, Mr . Harrington . Judge, excuse me . Lieutenant Colonel 19 Poteet needs to l eave to take care of other matters. 20 been our practice that we stop everything when the door gets 21 opened. I don't know i f you want to 22 MJ [Col PARRELLA]: 23 LDC [MR . NEVIN]: That's f i ne . We can do that . Okay . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21904 UNCLASSIFIED//FOR PUBLIC RELEASE It's UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 MJ [Col PARRELLA]: Okay. I wi 11 note for the record that 2 Li eutenant Co lo nel Poteet has left the courtroom. 3 4 Sir, you may a r gue . DC [LCDR FURRY]: Good morning , s ir. 5 6 7 8 9 you read that ex parte under seal attachment, that it contains 10 11 12 13 14 MJ [Col PARRELLA ] : So assum i ng - - okay . So I guess the 15 question is, what is it that you're seek i ng from this motion? 16 Are you seeking -- I understand you are seeking the 17 deposit i on , the discove ry, but to what end? 18 19 20 21 22 23 21905 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 MJ [Col PARRELLA]: 6 DC [LCDR FURRY]: Why? Because it's -- on i ts face i t i s just 7 8 9 So wi th that understanding, these are very natura l 10 questions that go to the - - Mr . al Hawsawi 's r i ghts to 11 12 effective ass i stance of counsel and how that happened. MJ [Col PARRELLA]: Well, I mean, I can understand you 13 14 15 16 17 18 19 20 21 22 But what I don't see is, with the a r gument that 23 you're mak i ng as to why, 21906 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 He put these -- he put these quest i ons at issue. 9 10 defense didn't. The That's the relevance of that, sir. 11 MJ [Col PARRELLA]: 12 DC [LCDR FURRY]: 13 MJ [Col PARRELLA ] : 14 DC [LCDR FURRY]: 15 MJ [Col PARRELLA ] : 16 TC [MR. RYAN] : Okay. Thank you. May I have a moment, pl ease? You may . Noth i ng furthe r. Mr. Ryan. Thank you . Good morn i ng. Good morn i ng , Your Honor . Judge , I heard 17 from fou r of the five counse l who j ust argued the phrase "we 18 don't know" repeated mo r e than once , and I think that's 19 tell i ng. 20 The defense cont i nues to offe r you quest i ons and a 21 great deal of specu l at i on of al l so r ts of poss i bi l it i es when 22 they have a bu r den to offe r you exceptional circumstances . 23 I add r ess the same a r guments r ight now and factors MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21907 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 that were addressed on Wednesday, but do so now in the context 2 of classified informat io n entered i nto the re cord for the most 3 part by the defense , with maybe one exception. 4 The pr imary motion, You r Honor, that you mu st rule 5 upon that is filed i n this series , and from which I suggest 6 7 9 were very fresh, the defense relied on some specific factual 10 assertions. 11 Certainly ly i ng, which has remained a theme, but back then i t was ly i ng with untruthfu l ness being under a 12 that 13 the 14 15 mi litary judge shou l d offer" -- order, I'm sorry -- "order a 16 deposit i on , under pena l ty of perjury, 17 18 Mr . Harringt on, I think, just repeated that argument 19 and I was somewhat surprised, because go i ng back a good deal 20 of t i me now Mi litary Judge Pohl suggested to the 21 prosecution -- di d not require i t 22 might be a good first step. And I'll te l l you , we resisted 23 init i al l y but then ult i mately turned MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS , , ,s, eer , , 21908 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 It does appear i n the 3 4 record. It has been in discovery. It conta in s no 5 6 7 8 9 On the othe r hand, Your Honor, f r om a r eal l ife human standpo i nt , I suggest that hi s untruthfu l ness i s quite 10 understandable, and the defense does nothing to suggest that 11 12 this was not the case. Cons i der this: The man, Your Honor -- and 13 Ms. Bormann, I think, did an ample job of describ i ng what i t 14 was l ike, and it was a strange moment for sure . 15 16 17 18 19 20 21 22 23 21909 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 there's nothing l ike that in the evidence. 21 Chief Prosecutor Martins specif i ca l ly refuted those i deas back 22 at the time that th i s all happened . 23 And, i n fact, MJ [Col PARRELLA ] : So , Mr. Ryan, assuming I MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21910 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 TC [MR. RYAN] : Yes, s ir . 2 MJ [C ol PARRELLA ]: 3 that there is no exceptiona l c ir cumstance . Let' s ju st assume that I a gree wit h 4 5 6 7 8 TC [MR . RYAN] : Wel l , Judge , first of al l , I wou ld suggest and the 9 10 concern, I guess, would rema i n va l i d. 11 extent that it hasn't happened already, I wou ld s ubmit there 12 is no need to worry that i t i s going to happen in the future. 13 14 MJ [Col PARRELLA ]: But i n the -- to the We l 1 , I guess th a t' s the f irs t How do we know that i t hasn't happened? 15 16 17 18 19 TC [MR. RYAN] : To the extent this commission i s concerned 20 about such factors, this commission could certain l y order the 21 prosecution to gather i nformation wi thout, obv i ously, gett i ng 22 c l ose to being in a posit i on of lea r ni ng anyth i ng , but 23 spec i fical l y i nvolv i ng the convening author i ty to re port back MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21911 UNCLASSIFIED//FOR PUBLI C RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 to Your Honor that ---- 2 MJ [Col PARRELLA ] : I don't think i t's so much the 3 comm i ss i on's concern as I th i nk - - maybe - - would you ag r ee 4 that the defen s e counsel has s ome eth i ca l obligat i on to make 5 6 7 8 9 TC [MR . RYAN]: The defense i s certainly -- do they have an obligat i on was your quest i on , s ir ? 10 MJ [Col PARRELLA ] : 11 TC [MR. RYAN] : Correct. They have an ob l igation to pr otect it. 12 Now, once someth i ng has happened, I'm not aware of an actual 13 di ctate that says you must f i nd out every deta i l of what di d 14 happen 15 MJ [Col PARRELLA ] : 16 TC [MR. RYAN] : 17 under the circumstances. 18 Sure. But knowing the scope---- I'm sorry to interrupt , sir . MJ [Col PARRELLA ] : That's okay . So knowing the scope of 19 20 21 22 23 TC [MR. RYAN]: Especially Yes , s ir . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21912 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 MJ [Col PARRELLA ] : So I guess wha t I'm ask i ng the 2 government i s , if not a depos it i on , how do we get t hi s 3 4 assurance? TC [MR. RYAN] : I wou ld s ugge s t , You r Honor , you a r e in a 5 position to put forth direct i ves -- and aga i n, I thin k the 6 proper ent i ty is the convening author i ty -- to gather 7 information as to the events, to the extent that's what you 8 want , but also to gathe r assu r ances from persons i nvolved as 9 to -- if not assurances, 10 may h • 11 none , 12 13 - e - I ! MJ [Col PARRELLA ]: I that e I I - e - - I I • i - • re aware of So something along the lines of, I guess, the comm i ss i on directing a dec l aration? 14 TC [MR . RYAN]: Yes , s i r . 15 MJ [Col PARRELLA ] : 16 TC [MR . RYAN] : Okay. Thank you . Yes , s i r. 17 Your Honor just i nd i cated that i f you were to agree 18 wit h me as to the la c k of except i onal c ir cums tan ces, if that 19 is where Your Honor is, th en I'm in no need of speak i ng any 20 further. 21 an open quest i on in your mind, I wou ld l i ke to continue my Howeve r, i f Your Hon or is sti l l look i ng at th i s wit h 22 argument. 23 MJ [Col PARRELLA]: Yes, please continue . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21913 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 TC [MR. RYAN]: All right. In , aga i n, Judge, the 2 defense pa i nts , i n add i tion to the whole issue of maybe he had the defense a l so pa i nts the 3 4 pred i ct i ve picture of what I have kind of taken to call the 5 Jason Bourne scenar i o . 6 7 8 9 10 11 12 13 14 15 16 17 18 And aga i n , th i s was fi l ed very soon after the 19 incident, when I imagine everyone was ope r ating under fa r 20 21 greater suspicions. But as to that c l aim -- and aga i n, th i s i s the motion 22 23 ¥JMfJ88tlfPP 21914 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 anyone's understand i ng or awareness, 2 So their c l aim that ly i ng and a chance of runn i ng 3 4 equa l s exceptional c ir cumsta nces I suggest on the f acts f a l l s 5 f l at , Your Honor . 6 But i n add i tion, I also want to po i nt out that th i s 7 is inconsistent -- the i r cla i m of except i onal circumstances in 8 this situation is inconsistent wit h prior defense posit i ons. 9 Mr . Bin'Attash, Mr. Al i , and Mr . Mohammad, i n the i r 10 own pleadings in the 11 took a pos i tion that said that wit ne sses were no t likely to be 12 unavailable when they we re in their e i ghties wi th general 13 health conce rn s . 14 statement about this motion was wrong . 15 wrong. , and thus a l l five by joinder, You we re t old the other day th a t my 16 LDC [ MS . BORMANN ]: 17 TC [MR . RYAN]: 18 Wel l , i t was not Judge - - - - We l l , i t was not wrong. I kno w because I l os t this motion , a nd it br oke my heart. 19 LDC [ MS. BORMANN ]: Judge 20 MJ [Col PARRELLA ]: Mr. Ryan, hold on one seco nd. 21 LDC [ MS. BORMANN ] : Objection. Th i s i s not c lass i fied 22 argument. 23 TC [MR. RYAN]: Agreed , Judge, but there is plenty of roo m MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21915 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 for us to match the class i fied facts with unclass i fied. MJ [Col PARRELLA ] : To the extent i t's requ i red to gi ve 3 context , proceed , but l et's also be sens i tive that this is 4 ju s t for c l osed a r gument. 5 comm i ss i on has heard ample unclass i fied a r gument . 6 7 8 We have previous l y , and the Pl ease continue, Mr. Ryan. TC [MR. RYAN]: That's fine, sir, and I wil l move off it r i ght now . I wi l l simply say that 9 , both of 10 which we r e orders from Mi l ita r y Judge Pohl, the r e was spec i fic 11 f i nd i ngs regarding una vai l ab i lity and exceptional 12 c ir cumstances that the defense ur ged on his Honor and hi s 13 Honor accepted, which I sugge s t is inconsistent wi th the 14 positions they are tak i ng now. 15 16 Judge , and usual l y i t's in the context of we don't know and 17 it's possible that this happened, i t's poss i ble that that 18 happened. The r e i s ev i den c e of it in th is reco r d in 19 c l assif i ed form. 20 21 22 23 21916 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21917 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 So here's how it's relevant, Judge. All of those 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Now , in al l the time I' ve been sitting in this courtroo m l i stening to the accused make statements at t i me s, 2 2 23 At the same t i me , learned counsel states , "Judge, we MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21918 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSI FIED//FOR PUBLIC RELEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f / / f8 / 9i!f / / 1 have exact l y the same i ssue . My c l ient" - - meaning 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 II II 21919 UNCLASSI FIED//FOR PUBLIC RELEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 8 9 from the prosecution, which also contains the statement , by General Martins 10 11 12 13 MJ [Col PARRELLA ] : 14 that's f r om the pr osecution . And I've r ead that, and I unde r stand But as I understand how this 15 16 17 TC [MR . RYAN]: Yes , s ir. TC [MR. RYAN]: It has not, sir. 18 19 20 21 22 23 Subject to your questions, Your Honor. MJ [Col PARRELLA ] : No quest i ons. Thank you. Ms. Pr adhan or anybody else have anything fu r ther? MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21920 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 ADC [ MS. PRADHAN ] : J us t a fe w ver y br i ef poin t s , You r Honor . 3 4 5 6 7 8 9 10 11 Th is is t he 9 / 11 case . e l se . It' s no t so me case somewhere And th i s i s not the only incident that has happe ned 12 l i ke t hi s. 13 14 15 16 17 18 19 20 21 22 23 21921 UNCLASSIFIED//FOR PUBLIC RELEAS E UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21922 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 Fi na l l y , I'm f r a nkl y no t quit e su r e why t he 14 15 16 17 18 19 20 21 22 23 21923 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 Subject to your questions. MJ [Col PARRELLA ] : Thank you. Mr . Nev i n? LDC [MR . NEVIN]: Thanks , Your Hono r. And I kno w we 10 talked about i t i n the open session, the fact that the rule 11 does n' t speak to unava i labil i ty exclusively as other -- some 12 other crim i na l rules do; i t speaks to exceptio nal 13 circ um s tan ces . 14 awfu l lot more exceptiona l than that . 15 An d I made the point th a t you don't get an On that score, I heard Mr. Ryan saying that 16 refer ri ng to this as the Jason Bourne scenario , sort of 17 iron i ca l ly . In othe r wo rd s, I take it the point is, what ? 18 19 20 21 22 23 21924 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 But nonetheless , th i s i s -- and , you kno w, we found s moke detectors -- mi c r o ph ones di s gui sed as smoke dete c t or s in 5 6 7 8 9 10 11 But we said this in the pl eadings, and I would be 12 13 gl ad t o say thi s in o pen cou rt because I don't th i nk it' s 14 c l assif i ed: 15 us. Mr . Moha mm ad was told , "You wi l l neve r be free of You wi ll never get away from us." 16 17 18 19 20 you? 21 just need to get to the bottom of. 22 So I th i nk there's a lo t unde r the surface here that we And as I l i stened to the refe r ence to General 23 Ma r t i ns' statement that no agency i n the go ve rnment MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21925 UNCLASSIFIED//FOR PUBLIC RELEASE I UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 I took that to heart. I went back and looked at the 7 9 said something s i mi l ar at an earlier time; and I'm going to 10 try to get to the bottom of what is in my reco l lection about 11 why that was permissib l e. 12 apply here. 13 mi srepresenting on purpose. 14 15 But I think the same thing would And I don't mean that I think counse l is I don't mean that at al l . But what I mean i s , again , it's on l y as good as the information that counsel has been given. And I think the way 16 you get to the bottom of 17 18 19 20 21 22 23 the oath, that But this is what they say about in cross-exam i nation, that it's , you know, MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21926 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 that language about the most effective engine for getting at 2 the truth. So it may not be perfect , but it's a too l that we 3 4 have . And I think unde r the circumstances, under the 5 exceptiona l c i rcumstances , c l early 40 years of pract i ce , if 6 you told me I was going to be reciting the occurrence of 7 things like what I j ust recited to you, I would have sa i d 8 you're c r azy befo r e I got to th i s env ir onment . These are 9 we practical l y have an exceptiona l 10 c i rcumstance every day, but this is what we have i n terms of 11 how to get to the bottom of this and the mi l itary commission's 12 obligat i on to make this a regularly constituted court that 13 tries to protect its processes . 14 MJ [Col PARRELLA ] : 15 LDC [MR. NEVIN]: 16 LDC [MS . BORMANN]: 17 counsel . 18 19 20 And so---- Thank you, Mr . Nevin . Thank you, Your Honor. We re l y on the comments of other I have nothing further. MJ [Col PARRELLA]: Thank you, Ms. Bormann. Mr. Harrington? LDC [MR. HARRINGTON]: Judge, I'm not go i ng to beat the 21 22 23 21927 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 Mr. Ryan just sa i d that we have the nond i sc l osu r e 4 5 ag r eement . We do have a nondisclosure ag r eement . I didn't 6 7 8 and perhaps the nondisclosure ag r eement i s what di d i t . 9 don't know that. We But that's the point about having this 10 11 Mr. Ryan gave us a scenar i o that he's been outed, 12 13 he IS his fami l y , whatever it is , 14 15 16 17 We presented to you what we bel i eve happened, and we 18 need to explore that under oath . 19 20 You j ust asked Mr. Ryan di d the CIA ever do a dec l aration? 21 Anybody from the CIA do a declarat i on? 22 wi th anyth i ng to expla i n this? 23 l i tt l e pr oblem in the air . Did they come fo r wa r d Th i s i s not some mythical This is -- this is r eally se r ious MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21928 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 stuff. 2 3 You asked before , you kno w, to what purpose do we go? How about outrageous governmental misconduct? put put it with the ot her th i ngs that Mr . Nevin ju s t 4 5 said . 6 governmental misconduct? 7 f i led in any court i n this country, including the mi l itary 8 comm i ss i ons. When do you reach the po i nt that you have outrageous That's a legit i mate mot i on to be 9 Judge, i n the black sites it's acknowl edged that the 10 government used psycho l og i ca l manipulation to try and get the 11 information which they needed. 12 They had the enhanced i nterrogation program to do that, to 13 acquire informat io n . The CIA readily admits that. It was a consistent tact ic. 14 15 16 17 18 19 20 21 22 23 21929 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 But aga i n , Judge , I don't see any othe r way that we at least begin to get to the bottom of this without that 10 deposit i on. 11 12 Thank you. MJ [Col PARRELLA]: Li eutenant Commander Furry? 13 DC [LCDR FURRY] : 14 MJ [Col PARRELLA ] : 15 Thank you, Mr . Har r ington. Okay. Noth i ng furthe r, sir. Thank you. We are go i ng to go ahead and take a recess. 16 Before we do , a couple of th i ngs I would ask as we move 17 fo r wa r d here . 18 Numbe r one , just a rem i nde r to keep your argument , to 19 the extent possible given necessary context, related to 20 c l assif i ed argument, in other words, the documents that you 21 prov i ded notice on classification. And second l y, I think i t 22 would be helpful for the commission, as wel l as probably fo r 23 those transcr i bing, if you identif i ed the c l assif i cation leve l MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21930 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 of the material before you argued i t. 2 Wi th that, let's go ahead and take a 10-minute 3 recess . 4 [The R.M.C. 806 session recessed at 1025 , 16 November 2018.] 5 [The R.M.C . 806 session was called to order at 1042, 6 16 November 2018.] 7 This commission i s i n recess . MJ [Col PARRELLA]: 8 order. 9 again present . 10 11 12 13 Th i s commission is called back to Al l pa r t i es present when the commission recessed are We wi ll now take up Good morning, Mr. Montross. DC [MR. MONTROSS ] : Good morning, Your Honor. As Your Honor r ecal l s, 360 invo l ves the one discrete 14 vi deoconference or video commun i cation that was not 15 transmitted to my c l ient's fami l y. 16 to the eterna l question of why not . 17 We are seeking the answer In open session I attempted to del i neate the 18 labyrinth of confus i on sur r ound i ng class i ficat i on of th i s 19 vi deo, and its trek from presumptive TS to unc l assif i ed to sua 20 sponte reassessment, to now i ts current des i gnation as secret. 21 Here in the c l osed session, I want to detai l a little 22 bi t more about the twists and tu r ns in this class i ficat i on 23 procedure that itse l f i s classified. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21931 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 Judge, afte r we filed which was the motion to 2 re co ns ider a s king for an exp l ana t i on about why t he vi de o was 3 deemed "not appropr i ate for transm issi on , " we filed another 4 plea ding in thi s ser ie s ca lled 360D , as i n Dav i d; and that was 5 seek i ng a mot i on to show cause why the government should not 6 be held in contempt or otherwise sanctioned for fail i ng to 7 turn over the vi deos that Judge Pohl had ordered. 8 9 That fi 1 i ng was deemed a spi 11 , and the reason it was deemed a spil l is because in that fil i ng I talked about the 7 10 11 12 13 14 15 16 17 18 19 been 20 21 22 prov i ded at that po i nt in Ma y of 2018. All forbidden. The pro blem was that other peop l e, tr i al counsel, had 23 mentioned i t multip l e times i n the ir pleadings that -- the MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21932 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 7 December 20 14 video, and, l o and behold, Judge Poh l said it, 2 too , in one of hi s rul i ngs. 3 4 5 So we had a problem. We had a spil l . On July 24th , 2018 , here i n court pr et r ial proceed i ngs, the CISO pr ovided new gu i dance r e l ated to AE 360 . 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 So this is the ki nd of level of insan i ty that we a r e MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21933 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 In the SOS(g ) notice that we 4 5 prov i ded fo r this -- well , let me take one step back . 6 In the open sess i on, Major Dykst r a did acknowledge, 7 at least what I heard, that there were some issues here with 8 this particula r commun i cation. 9 10 11 12 13 14 So we addressed that briefly in our pl eading, i n 15 (WBA Sup), wh i ch is the subject of the SOS(g) not i ce, Judge. 16 It was direct i ng Your Hono r to the class i fied portions of 17 (WBA Sup) . 18 And what I would te l l Your Honor , okay , 19 20 21 22 23 21934 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21935 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 And i f you wish, in the interests of e xp ediency, I 2 ha ve one brief point on 399 that's re l ated to this, and I c an 3 hand l e that r i ght now i f Your Honor wou ld be amenable to that . 4 MJ [C ol PARRELLA ]: Let's go ahead . 5 DC [MR . MONTROSS ]: Okay . On 399 I had represented i n 6 open session and encouraged this comm i ss i on to please not 7 cons i der the government's defense, right, that the program, 8 the video commun i cation program , was both efficient and a fair 9 substitution for in-person vi sitat i on . And I asked the court 10 not to consider that defense because I di dn't ha ve the 11 evidence a nd the ammun i tion to refute that. 12 13 14 15 16 17 18 19 20 21 22 23 21936 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 therefore, are not sub j ect to being used as ev i dence by me in 2 order to defeat the ir clai m that the program is a n efficient 3 substitute for r eal in - person vi sitat i on . And 4 i s yell i ng at me . If I cou ld have one 5 moment, You r Hono r? 6 7 MJ [Col PARRELLA ]: You may. [Pause.] 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 " 21937 " UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 Mr. Bin'Attash. 2 point. 3 4 I j ust raise my hands in frust ra tion at this Subj ec t to your questions , Judg e. MJ [C ol PARRELLA ]: I gue ss my que st i on, Mr . Mon tr oss, 5 let's go back t I understand your frustration wit h the 6 c l assif i cation guidance that you've expressed to the 7 comm i ss i on, part i cu l ar l y wit h that one part i cu l ar vi deo, and 8 it seemed to have gone from pr esumptive TS to Unc l ass and back 9 to Secret. 10 But as you know, the comm i ss i on is not a 11 classificatio n, you know, authority, so what exactly do you 12 want the comm i ss i on to do ? You wa nt paperwork relating to 13 that one vi deo t o explain why it was or was not relea sed. 14 15 16 17 18 19 20 21 I'm not -- obviously I'm not a classification 22 autho r ity either . 23 autho r ity. He has no derivative class ification He attempts to div ine -MW,.5.5f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS , , ,s, eer , , 21938 UNCLASSIFIED//FOR PUBLIC RELEASE I' m r eferring UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 to -- what is the c l assif i cation status. 2 wi th OCAs. I have no contact 3 What I want you to do , Judge , is I want you to order 4 the gove r nment to prov i de either the OCA gu i de l ine s or JTF to 5 prov i de the basis fo r the r efusal to t r ansm i t the 6 7 December 20 14 video and to expla i n to me why. 7 MJ [Col PARRELLA ] : We l l, it seems the basis would be the 8 fact that i t was class i fied . 9 fo r - - I mean , it sounds to me , I guess , my po i nt is it sounds So real l y what you're l ooking 10 less like a di scovery request and more l i ke a request fo r 11 12 c l assif i cation guidance. DC [MR. MONTROSS ] : I desperate l y need c l assif i cation 13 guidance, yes . 14 MJ [Col PARRELLA ] : Okay . 15 DC [MR. MONTROSS ] : Thank you. 16 MJ [Col PARRELLA ] : Mr . Nevin. 17 LDC [MR . NEVIN]: 18 MJ [Col PARRELLA ] : 19 LDC [ MR. HARRINGTON ] : 20 MJ [Col PARRELLA ] : Mr. Connell. 21 LDC [ MR. CONNELL ] : No, thank you, You r Hono r . 22 MJ [Col PARRELLA ] : Mr . Ruiz . 23 LDC [ MR . RUIZ ] : I don't have anything, Judge. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf I understand . Thank you . No, Judge . Mr . Ha r r i ngton? No, Judge. , , ,s, eer , , 21939 UNCLASSIFIED//FOR PUBLIC RELEASE Thank you. UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 MJ [Col PARRELLA ] : Tr i al counsel. 2 ATC [Ma j DYKSTRA ] : Nothing classified , Your Honor. 3 MJ [Col PARRELLA ] : Tr i al Counsel , I have some quest i ons 4 fo r you . 5 ATC [Maj DYKSTRA ] : And I'm more than wi l ling to answer 6 your quest i ons, Your Honor. 7 MJ [Col PARRELLA ] : Thank you. The f ir st question is, i f 8 you know, how did we go from presumpt i ve TS to Unclass and 9 back to Sec r et again? 10 11 ATC [Ma j DYKSTRA ] : When we handed it ove r to them, i t stil l needed to go through a class i ficat i on r e view. We are 12 just ta l king about the 7 Decembe r 2014 review video. 13 MJ [Col PARRELLA ] : That's co r rect . 14 ATC [Ma j DYKSTRA ] : Al l the rest of the ones, we handed it 15 over to them with the correct c l assif i cation and so forth. 16 After that they put it to the c l assif i cation review. 17 some bureaucratic process i ng errors, i t didn't go al l the way 18 th ro ugh the proce ss and got repo r ted back to them Due to 19 unclass i fied. 20 When t ha t was discovered, it came back fo r rev i ew and 21 it went through the entire process, went through all the OCA 22 process and was dete r mi ned to be c l assif i ed at that point i n 23 t i me . That was dete r mi ned or that was reported back to MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21940 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 Mr. Bin'Attash's team. MJ [C ol PARRELLA]: I've read the class guidance that was issued pertaining to 360 / 399 . 4 ATC [Maj DYKSTRA]: Yes, Your Hon or. 5 MJ [Col PARRELLA]: I understand - - I th i nk I understand 6 what's contained in there. What I don't understand i s that in 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 We have kept ourselves walled off f r om what was put 23 forward into that process , 21941 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 MJ [C o l PARRELLA ]: I unde rs tand. Thank you, Major Dy ks t ra . 6 ATC 7 DC [MR. MONTROSS ] : May I ? 8 MJ [Col PARRELLA ] : You may . MJ [Col PARRELLA ] : I [ Ma j DYKSTRA ] : Yes, Your Honor. 9 10 11 12 13 14 15 16 wi l l lea v e that to your disc r etion, Mr . Mont ross. 17 18 19 20 21 22 23 21942 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 So I hear bureau cra ti c s l ipu p t wi ce now , ju s t on thi s one i ssue. 20 MJ [Col PARRELLA ] : 21 Mr. Ruiz. 22 LDC [ MR . RUIZ ]: Thank you. Judge , I just want to add a few comments 23 to the subject which I th i nk you raised , wh i ch was the MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21943 UNCLASSIFIED//FOR PUBLI C RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 comm i ss i on's relationship in regards to classification 2 matters , and I wi ll just add a few po i nts for your 3 cons i derat i on . 4 It is true that you' r e not a cla s s i ficat i on authority 5 and you cannot dir ect anyone to change the classification of a 6 pa r t i cu l ar document. 7 established. 8 9 I think that is more than well However , th r oughout the course of this l i tigat i on we have from time to t i me brought to the commission's attention 10 that you are not power l ess. 11 in the face of what appear to be arbit r ary or capric i ous 12 c l assif i cation determinat i ons. 13 The comm i ss i on is not powerless In fact , I be l ieve we br iefed this in 018PP way back 14 when on th i s very issue. And the author i ty that the 15 comm i ss i on has and the power that the commission has is to 16 look at class i ficat i on of particula r documents , and the cou r t 17 can make a decis i on or a finding that says the documents 18 appea r to be c las s ified th ro ugh an arbitrary or capr ic iou s 19 means or there appea r s to be an abuse of discretion. 20 21 Th r oughout -- and obvious l y you can't change the c l assif i cation. But ce r tain l y f r om the standpoint of the 22 comm i ss i on , you can look at the facts that a r e presented . You 23 can l ook at va r yi ng changes i n the class i ficat i on of documents MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21944 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 in the absence of a real exp l anation to the commission as to 2 how this comes about. And this is a r ecurring theme th r ough these 3 4 comm is s i ons. 5 reflect that . 6 it does. 7 I j ust ask that you -- that the reco r d doe s It is not at my fingertips at this moment, but The commission can take an active role and can take 8 an active part in having the government put forth r eal 9 explanations. It goes back to what Mr. Mont r oss says, a 10 c l assif i cation guidance. 11 decisions a r e be i ng made and be i ng determined. And why is that i mpo r tant? 12 13 Some kind of protoco l by which these Because we are here l i tigat i ng tho s e very is sues before the commission. The r e is 14 a r eal i mpact in time and ene r gy that is invested into these 15 types of issues because there are these classification 16 restrictions that are being made , taken away , made again ; and 17 this is but one very good il l ust r ative example of that 18 in s tance. 19 Li ke I said, I think it's 018PP whe r e we fleshed this 20 ou t a l it t l e bit more. 21 recesses of ou r memo r y the r e, but I wi ll confirm that that's, 22 in fact , one of the places that we -- that we raised it . 23 I'm reaching back in t o t he great So that's all I wanted to add on that po i nt . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21945 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 MJ [Col PARRELLA]: Thank you, Mr. Ru i z. Okay. We're going to move on to TC [MR . GROHARING]: Judge, excuse me , Your Honor . Just 4 before we start, the prosecution has pro vided some exhibits on 5 this motion to the court reporter . 6 They may want to argue first, but pr ocedu r a l ly we should 7 probably admit those exhibits, make sure they're adm i tted, and 8 they' r e free to comment on them as well. 9 LDC [MR. CONNELL]: It's the defense's mot i on . You r Hono r, th i s i s Ms. Pradhan's 10 motion but I'm happy to argue this procedural point i f the 11 mi litary comm i ss i on will allow. 12 MJ [Col PARRELLA ] : Sure. 13 LDC [ MR . CONNELL ]: You r Hono r, the day of the closed 14 hear i ng is too late to admit -- to give not i ce of new 15 information -- new classified information for use in that 16 c l osed hearing. 17 under Rule 505 is an (h)(2)(A) not i ce . 18 giv e notice of this addit io nal mate r ial. 19 through a 505 ( h) use, relevancy, and adm i ss i bi li ty 20 determinat i on nor di d the defense have the opportunity to 21 exam i ne it in the context of th i s mot i on pr i or to the hear i ng. The government equivalent to a 5-1 (g) not i ce The government did not It has not been 22 So there would need to be a 505 -- the r e would need 23 to be a 505(h ) (2) (A) notice, a 505(h) hea r ing, notice to the MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21946 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 publ i c, and then we could take that up. 2 MJ [C ol PARRELLA ]: 3 TC [MR . GROHARING]: 4 Tr i al Counsel, respo nse . Your Honor , the only information that wou ld be discussed in thi s hearing has a lr eady been not ice d by 5 6 7 The fact that the government provided mater i als to 8 9 the defense in di scovery has already been part of the 10 government's response i n the 11 port i ons t ha t wo ul d be discussed are the specific texts withi n 12 those documents that are contained in the paragraph d. 13 syno pses that are the subjec t of 14 f i ling . The on l y I be l ie ve, the de fen se So the point i s, as we've sa i d i n our plead i ngs, we 15 16 prov i ded the i nformation to the defense . 17 offering the ex hi bits i s actual l y showing Bat es-n umb ered 18 ve r sions of th e documents we ' ve actua l ly prov id ed to the 19 defense. 20 MJ [Col PARRELLA ]: The only point of And t his is what's been mar ked as 21 22 TC [MR . GROHARING]: 23 MJ [Col PARRELLA]: - - - - Q? MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf Q, Your Honor . , , ,s, eer , , 21947 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // So is this informat i on -- informat i on that was -- I 1 2 take it it was not previously a part of any other pr i or 3 notice . What you're look i ng to argue is the information 4 that' s highlighted i n the ye l low po r t i ons? 5 TC [MR . GROHARING]: 6 MJ [Col PARRELLA]: That's correct, Your Honor. And could you state one more time, 7 Mr. Grohar i ng? 8 the substance , but what was the purpose of the ---- 9 It didn't sound like you were l ooking to argue TC [MR. GROHARING]: We've -- the documents that a r e the 10 exhibits are Bates - numbered materials that were prov i ded to 11 the defense in di scovery , and they support the posit i on the 12 government has taken in the mot i on that, contra r y to the 13 defen s e assertion s, that the informat i on conta i ned and 14 spec i fic information that the defense highl i ghts that 15 that informat i on is included in other mater i als that the 16 defense has been provided , materia l s that we r e app r oved , the 17 summa r ies that we r e app r oved by the mi litary judge before they 18 we r e provided to the defen s e . 19 LDC [ MR. CONNELL ] : Sir? 20 MJ [Col PARRELLA ] : If you could, Mr . Groharing, address 21 Mr. Connel l 's, I guess for lack of a better word, ob j ection to 22 the pr ocedu r a l aspect of this; i n othe r words , that this was 23 not pr eviously run through the 505 process and , therefore, the MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21948 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 comm i ss i on shouldn't take it up at th i s 806 session. TC [MR. GROHARING] : Your Honor , the only information that 3 would be di scussed -- and that's what we' r e looking to pr otect 4 th r ough the 505 pr ocess -- it's the ve r y s ame i nfo r mation that 5 the defense noticed and was discussed and was approved by the 6 mi litary judge to di scuss in th i s hearing. 7 It's the exact same subject matter, so there would be 8 no need to notice the exact same subject matter that 9 comes from -- just simply comes from a di ffe r ent document. 10 MJ [Col PARRELLA ] : So assum i ng we could sk i p the 11 505(g) -- the 505(h ) hear i ng for the use , rele vance , and 12 admissibil i ty, what's your position as to whether the r e has to 13 be a s eparate clo s ure or de r with re s pect to th is ? 14 TC [MR . GROHARING]: The gove r nment's posit i on is that 15 there would not need to be a -- it's the very same 16 information . We already have an order that covers the 17 information . Our position would be that if it went beyond 18 that informat i on , ye s, the comm issi on would have to iss ue a 19 separate protect i ve order, if it was i nfo r mation unrelated to 20 the i nfo r ma t ion i n ques t ion. 21 But certainly the same, the very same informat i on and 22 information su r rounding that would be app r op r iate l y cove r ed by 23 the commission's pr i or order . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21949 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 MJ [Col PARRELLA]: Okay. Mr. Connel l . 2 LDC [MR . CONNELL]: First , Your Honor , we di sagree that 3 it's the same informat i on . 4 it handed to us this mo r ni ng and exam i ned it , i t doesn't look 5 l i ke the same informat i on to us . 6 we get to this. Looking at -- you know, hav i ng had But we can argue that when 7 But with respect to the government's pos i tion on 505 8 notices on l y cove r i nfo r mation and then all informat i on would 9 be swept in, we can br i ng in a who l e bunch of new exhib i ts . 10 love that pos i tion. 11 I That posit i on is incredib l e. I I wish that had had i t on the r ecord, and I am going to f r ame this 12 transcr i pt. 13 14 Because we spent most of Wednesday listening to government objections about how even when we gave notice of 15 information and then had a subset under that wi th the exact 16 documents which we wanted to re l y on for the information , and 17 then ident i fied page numbe r s within those documents , that t ha t 18 was sti l l not sufficiently spec i fic notice. 19 So I love the idea that 505 not i ces cover only 20 information and not documents, and that the government, who 21 has a s i mi l ar, arguably even stronger r equirement under 22 505(h) (2) (A) to i dentify the specific class i fied i nfo r mation 23 at issue can that information is good enough. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21950 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // And i f the mi l itary commission rules i n the 1 2 gov ernment's favor on this , then I just want to draw the 3 pa r ty's attention that I wou l d expect the same standa r d to be 4 appl i ed to the defen s e . 5 MJ [Col PARRELLA ] : Okay . So at this po i nt let's go ahead 6 and pr oceed wi th you r a r gument, Mr. Connell, 7 point I'm going to take it under advisement as to whethe r I 8 wi ll al l ow the government to argue th i s i nfo r mation i n this 9 hear i ng . 10 LDC [MR. CONNELL ] : Thank you, sir. At this Given the importance 11 to going fo r wa r d in t he 505 pr ocess of how this wo r ks, I do at 12 some po i nt r equest a ruling. 13 advisement . 14 15 16 MJ [Col PARRELLA ] : I understand i t's under No , I understand . Ms. Pr adhan. ADC [MS . PRADHAN ] : Yes , sir . If you don't mind , 17 Your Honor , I wi l l j ust take a moment . 18 of the document c ame r a f or do c ument s that are i n the r e cord 19 and have been noticed to the mi l ita r y commission, so I j ust 20 want t o get every t hi ng straight. I'm go i ng to make use 21 MJ [Col PARRELLA ] : Okay. 22 ADC [MS . PRADHAN ]: The r e have been incidences whe r e I 23 have knocked l arge amounts of paper off the podium, so -MW,.5.5f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21951 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // And j ust fo r the mi l itary commission's essay, 1 2 You r Honor indicated that you wante d the informat i on reg arding 3 the class ification l evel of the documents that we are going to 4 use. 5 di sp l ay on the document camera that I wi l l be referr i ng to are 6 c l assif i ed at the SECRET // ORCON // NOFORN l evel, but I do expect 7 to make reference at certain po i nts during my argument to the Al l of the documents that I wou l d l ike t o use and to 8 9 10 MJ [Col PARRELLA ]: Okay. 11 ADC [ MS . PRADHAN ]: Your Honor, as a pre l im i nary matter , as Your Honor has undoubtedly 12 13 noticed , are all interrelated in ce r tain ways . 14 15 16 17 Th ey ' re re l ated because the government ha s 18 con t inua lly argued that in vest igat ion i s un necessa r y e ither 19 because they, the government, wi ll fac i l i tate access to 20 21 22 23 the substance o go i ng for Mr. Connel l . ¥JMfJ88tlfPP 21952 UNCLASSIFIED//FOR PUBLIC RELEASE argue But I do UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 want to just f ra me some of the 2 3 4 5 6 7 8 9 10 So the l itera l carrying out of a phone interview i s, 11 i n t he government's eyes suffic i ent to reach the standard of 12 investigat i on re quired in a cap i ta l case, but I'l l talk more 13 in a little bi t about the me cha ni cs of the i nte r vi ews when I 14 get to my third point o 15 The i mpo r tant po i nt is that the government does 16 not 17 th e conversat i ons we ha ve had wit h the UFI wi tn esses and that 18 i s because the s ubs tan ce l argely s upp or t s our a r guments in AE has not real l y wan ted to de lv e into the substance of 19 20 21 ROI di scovery cannot be relied up on. I'm going to walk th ro ugh s l owl y because these 22 are obv i ously big and i mpo r tant issues. 23 MJ [Col PARRELLA ] : Not too slowly . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21953 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 ADC [ MS. PRADHAN ] : Not too slowly. 2 capable of go i ng too slowly, Your Honor. 3 No one ha s ever accused me of that . But these a r e big a nd i mp ortant i ssues that I don't 4 5 I don't think I am have to r epeat that strike the heart of the case . The gove r nment will r espond with broad remarks about 6 7 the breath of their discovery product i ons. 8 by trying to convince the mi l ita ry commission that these 9 di screpanc i es are not ser i ous, they are mino r, they a r e They wi l l respond 10 l i mited in scope. 11 mi litary comm i ss i on cannot allow those responses any more. And the There are a coup le of overarching questions that 12 13 We have heard this before. th r ead through that the mil itary commission , I ask 14 respectful l y , should keep in mind rega r di ng RD! dis covery as a 15 whole . 16 17 18 19 20 21 22 23 21954 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 Your Honor , we asked the government to answer this 3 question dir ectly: Under whose authority di d they adopt this 4 l i mited defin i tion? 5 have -- that we have rece i ved, and it co l ors the fact that 6 there has been such significant de l ay in that discove r y. Becau s e it co l ors the discove r y that we 7 8 9 10 The second overarch i ng quest i on is what i s the 11 government's exp l anation -- rea l ly , this is a related 12 question: 13 wi thholding that ev i dence until 2018? What i s the government's explanation for 14 15 16 17 18 19 20 21 22 23 They knew that Spec i al Agent Fitzs i mmons was in MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21955 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 6 7 8 9 10 11 compel the Your Honor 21 We won't go over that 22 again, but I have -- the roadmap wi th you r permission, 23 Your Honor , essent i al l y boi l s ¥JMfJ88tlfPP 21956 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 down to three ma i n a r guments. The first is the government 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 If I may have access to the document came r a. 22 MJ [Col PARRELLA ]: You may . 23 ADC [MS . PRADHAN ] : Thank you, Your Honor. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21957 UNCLASSIFIED//FOR PUBLIC RELEASE The document UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 that I'm putt i ng up here i s found i n the record at 2 And I would like to 3 call You r Hono r 's attention to the first fu l l paragraph on 4 that page. 5 let me see if I can -- the r e we go . And I apologize for the qual i ty of that copy , but 6 7 8 9 10 11 And as a prel i minary matte r , You r Hono r , I note that 12 13 you have not ruled on the government's de s ire to us e 14 15 16 17 18 19 And the po i nt about th i s, You r Hono r , is that med i ca l 20 experimenta t ion on human beings - - we l 1 , on pr i soners, i s a 21 crime. 22 law about this, both domestic and i nte r nationa l . 23 The r e are no t wo ways about it. The r e is 1 aw and case Two days ago the ACLU released FOIA report MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21958 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 acknowledg i ng that the CIA had considered use of an 2 experimental truth serum on detainees . Now that plan was not 3 4 5 6 7 8 9 information is there avai l ab l e about this? There must have 10 been other informat i on that speaks directly to th i s that the 11 government reviewed in the process of creat i ng th i s summary. 12 13 14 15 And I'd like to cal l Your Honor's attent i on to 16 17 18 19 20 21 22 23 21959 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 Now, the speci fi c ity , Your Hon or, of the purpose of 4 5 that OIG interview to ascertain whether the Federal 6 Anti-Torture Statute had actual l y been vi olated as early as 7 2005, that is significant. 8 Was i t t r iggered by a particular incident? Who e l se was 9 interviewed in that particular OIG review? And what was the 10 outcome? 11 Who in i tiated that investigation? Was there a report issued on that specific potentia l vi olation? Tho se are all re l evant quest i ons to that 12 paragraph, and that is why we wou ld be seek i ng the information 13 14 15 underlying that paragraph . These are -- aga i n, Your Honor, these are just a of examples. 16 17 18 19 20 21 22 23 21960 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 TC [MR. GROHARING]: Excuse me , You r Hono r, if I cou l d 10 just interrupt. 11 don't have these in our materia l s that we di scussed at the 12 prior sess i on, the prior 505 ( h) session. 15 We So we would just ask c l ar i ficat i on from counse l : 13 14 We are trying to find the documents. Which notice did th i s document come from? MJ [Col PARRELLA ] : Okay. Go ahead and fin i sh your 16 argument , fin i sh your thought , and then i f you could te l 1 the 17 comm i ss i on whe r e th i s i nfo r mation -- which not i ce it perta i ns 18 from . 19 20 ADC [MS. PRADHAN ] : Sure. These we r e already i n the record, Your Honor, but abso l utely. 21 22 23 21961 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21962 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 May I ha ve a moment to confer, Your Honor ? 7 8 MJ [Col PARRELLA ] : You may . 9 ADC [MS . PRADHAN ] : Thank you. 10 11 12 [Pause.] ADC [MS . PRADHAN ]: I apo l og i ze , Your Honor , for the confusion. 13 MJ [Col PARRELLA ]: No problem . 14 ADC [MS . PRADHAN ] : And I apologize to the mil i tary examp l es that I c i ted, 15 16 17 18 MJ [Col PARRELLA ]: Okay . 19 ADC [MS. PRADHAN ] : Thank you, Your Honor. 20 21 22 23 21963 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 And i n that the drafters of this report state , "We 6 7 8 9 10 11 12 13 14 15 16 17 18 Now , the government can, of course , gi ve us a more accurate pi ctu r e of what they used in constructing these 19 prof i les, but it seems clear that certainly these documents 20 are not al l summarized in the di scovery produced to us by the 21 government. 22 Now, moving on to my second point, You r Hono r. 23 Before we conducted UFI interviews , we we r e ab l e to i dentify MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21964 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 21965 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 Now , th i s states , Your Honor , in relevant po r t i on -- I apologize fo r the quality of the co py , but that' s actual l y 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 The reasons they decided to torture the m are 23 obvious l y rele va nt. And l et me preempt the go vernment here: MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21966 UNCLASSIFIED//FOR PUBLI C RELEASE UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21967 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 Mr. Connell is, of course, go i ng 2 to address the protoco l in these interviews and othe r 3 4 5 potential witnesses we want to speak to i n some more detai l in But because I am the one who co ndu cted UFI interviews , I wi l l just say a few wo rd s, and this is r eflected 6 7 8 9 10 11 12 13 Now , pursuant to the te rms of Protect iv e Order #4 and 14 cons i dering the pr osecution's th r eats in January of this year , 15 I read each witness a scr i pt at the beginning of each call, 16 introducing myse l f and my team members present and emphasizing 17 that we needed to dis cuss several rest r ictions . And the fact 18 that I did so i s mem orialized in the dec l arations , Your Honor , 19 20 21 I to l d them we wou ld not be talking about spec i fic 22 dates, that we would ask them -- to the extent we asked them 23 when something happened, i t would only be for the month and MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21968 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 as does everyone who has conducted investigations, how 11 chil l ing it is -- and they di scussed this in their 12 declarations 13 beginning of an inte r view when you are trying to bui l d rapport 14 to di scuss difficult topics, and most often we have at l east 15 had the benef i t of doing i t i n person. to i ssue such artific i al barriers at the 16 17 18 and I don't know what the wi tnesses have been to l d about us i n advance. The government has sort of proffered certain details 19 that they told the witnesses that they had the ab i lity to meet 20 wi th us in person. We just don't know. 21 they were told ahead of t i me. We don't know what We know that most likely CIA 22 and FBI agents spoke to them ahead of time, simila r ly to what 23 they did wi th Mr . Ki ri akou that actua l 1 y 1 ed to Mr. Kir i akou MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21969 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 refusing to speak to the defense, but we don't know what they 2 were to l d ahead of time. So that's the first i ssue. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21970 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 They have a combined 40 years of i nvest i gative experience . Now , I wil l be honest , You r Hono r, after the f ir st 2 2 2 2 21971 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 21972 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21973 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 Now , You r Hono r, the mi litary comm i ss i on , I'm sure, 4 under s tands what a huge area of inquiry this i s fo r us whe n 5 comb i ned wi th the defendant's to r tu r e you have trans l ato r s who 6 may or may not have trans l ated statements co r rect l y. 7 Incor r ect t r anslations could have l ed to more torture. 8 know that statements made or trans l ated for the inter r ogato r s 9 would lead to their -- to specific types of treatment by the MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21974 UNCLASSIFIED//FOR PUBLIC RELEASE We UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21975 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 So the gove r nment e i the r i ntent i onally left th i s MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21976 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 And briefly, yesterday Mr . Groharing seemed to 6 downplay the i mpo rtance of defense interviews wit h witnesses . 7 I th i nk that's probably an understatement. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21977 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21978 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 21979 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21980 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21981 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 I've sa i d this on the reco r d before, and Mr. Connell has said 8 it, were the some of the most useful discove r y that we'd 9 rece i ved. 10 Pe r haps the only th i ng worse than the government 11 wi thholding materia l di scovery or giv i ng it out in drips and 12 drabs over six years of pretria l hear i ngs is the gove r nment 13 hand i ng us discovery wi th s uch massive f l aws. 14 Someone has to check their wo r k here . 15 th r ough the 505 16 real l y be the mi l ita r y commission. They didn't go so i t can't And that leaves us. 17 18 19 20 21 22 23 MJ [Col PARRELLA ] : I have none . Thank you . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21982 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 ADC [MS. PRADHAN ] : Thank you. 2 MJ [Col PARRELLA ] : Ms . Radostitz. 3 ADC [MS . RADOSTITZ]: 4 Your Honor, I would just like to ampl i fy a l ittle bit on Ms. Pr adhan's po i nt number two , that 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 And then another problem i s a real pract i ca l prob l em 22 as an investigat i on in a cap i ta l case , is that we look for 23 peop l e who might know someth i ng that wou l d be relevant to our MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21983 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 preparation of our defense, and we go out and we find peop l e 2 who ha ve spoken pub l ic l y and we 3 example . I'm going to gi ve an 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 And we don't have a whole lot of t i me and we don't have a who l e l ot of resources and we shouldn't be spend i ng it MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21984 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 traveling to go i nte r vi ew a witness that we get there and we 2 f i nd out we can't actually talk to . 3 4 5 6 7 MJ [Col PARRELLA ] : Thank you. 8 LDC [MS . BORMANN ] : We adopt the arguments of 9 Ms. Radost i tz and Ms. Pr adhan. 10 MJ [Col PARRELLA ] : 11 LDC [MR . HARRINGTON]: 12 MJ [Col PARRELLA ] : 13 LDC [MR . RUIZ ] : 14 MJ [Col PARRELLA ] : 15 16 17 18 Ms. Bo r mann. Mr. Harr i ngton? Nothing further, Judge. Mr. Ruiz? No addit i onal a r gument . Okay . Before you go , Mr. Gr ohar i ng , how l ong would you ant i cipate? TC [MR. GROHARING] : Not very , sub j ect to your quest i ons , Your Honor . MJ [Col PARRELLA ] : Okay. I'm j ust thinking , befo r e you 19 go, I know you want a rul i ng or probably to know the breadth 20 and scope of your argument. 21 maybe it's just because I'm an opt i mist think that maybe you So as I think this th r ough, and 22 are both r i ght. 23 I don't th i nk the government would need to not i ce MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21985 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 information if it has already been noticed. But with that 2 respect , I guess the question for you , Mr. Grohar i ng , would 3 be: 4 notice wherein you bel i eve this informat i on was prev i ously 5 noticed? 6 you need t i me to figure that out or if you have that at you r 7 f i nge r t i ps. 8 9 10 These documents you pr ovided , what's the specif i c 505(g) So that would be the one th i ng . TC [MR . GROHARING]: And I don't know if I'd need a little bi t of time, Your Honor , to reference the specific defense not i ce that I'm talk i ng about. The informat i on in quest i on comes from I just don't ha ve at my fingertips the not i ce whe r e 11 12 the defense asks to discuss that information in c l osed 13 se s s i on . 14 15 MJ [Col PARRELLA ] : I think where we fal l in is that the comm i ss i on has noticed that Mr . Conne l l's 505(g) not i ces are 16 typical l y very prec i se , so if the gove r nment's informat i on 17 doesn't fa l l within one of the pr ecise areas noticed , then I 18 think his object i on has validity. 19 And that so r t of we i ghs in favor of the defense being 20 pa r t i cu l ar, because I guess i n that sense you're l im it ing the 21 extent to which the government can then stand up and say it 22 falls wi th i n that information a lr eady noticed . 23 Some of the other notices , however , are much broader , MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21986 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 and I think the commission, at l east at this last 505(h ) 2 hear i ng , was pretty generous in so me of those rather br oa d 3 notic es . 4 I'm incl ined t o say that it is fair , fairly noticed, and the 5 government s hould be able to get up and a rg ue i t here today. 6 So to th e ex t e nt it falls wit hi n one of those , then Oka y . So wi th that I think what we' l l do is we' l l go 7 ahead and take an hour r ecess for lunch and come back, and 8 then that that wil l give the government an oppo r tunity to take 9 a look and see if it falls within that ga mut . 10 The commission is in recess. 11 LDC [ MR . CONNELL]: Sir, may I 12 MJ [Col PARRELLA ] : I'm sorry, le t's hold on one second. 13 LDC [ MR . CONNELL]: I jus t wan t t o thr ow ou t the i dea that 14 poss i bly a 30-minute lunch mi ght be suff i cient . 15 lot of people have a lot of things to do and pack out and 16 other things and we al l wan t to mo ve as best we can , so I'm 17 just throwi ng out that idea . 18 MJ [Col PARRELLA ]: I know that a We' r e go i ng to s tay with a n hour. 19 Thank you . 20 [The R.M.C. 806 session recessed at 1207 , 16 November 2018.] 21 [The R.M.C. 806 session was called to order at 1314, 22 16 November 2018 . ] 23 MJ [Col PARRELLA ] : Al l r i ght. Th is commissio n is called MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21987 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 back to order. All parties present before the commission 2 recessed are aga i n present. Mr. Gr ohar i ng . 3 4 5 And if you could start off by j ust address i ng the issue we di scussed about the notice. TC [MR . GROHARING]: Yes , You r Hono r. 6 looked, and I stand cor r ected. 7 notice. I don't bel i eve there is a The i nfo r mation i n question comes f r om 8 9 Over the recess we I was under the i mpression that that mot i on was pa r t of one of 10 the defense notices that was approved, but I don't believe 11 that is the case . 12 covers the motion in toto. I don't believe the r e's a notice that And so I ag r ee in that r espect with Mr. Connel l as 13 14 fa r as that's not information that either the defense or the 15 government has noticed for di scuss i on in th i s closed session, 16 so I don't intend to reference the subject matter conta i ned 17 e i the r as far as the classified 18 information in there , or i n the exhib i ts that I've offered to 19 the commission. 20 I would ask the commission to cons i der those 21 exhibits, though, on the mot i on, but I don't need to discuss 22 them , other than just a general r eference to orient the 23 comm i ss i on on why they are s i gn i ficant to the mot i on . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21988 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 MJ [Col PARRELLA]: 2 TC [MR . GROHARI NG] : 3 MJ [Col PARRELLA ] : 4 TC [MR. GROHARI NG] : I understand. May I proceed , Your Honor? You may . Pl ease . Your Honor , I th i nk we should start 5 wi th the relief requested And that's , the defense 6 requested the or i ginal documents that formed the bas i s for 7 8 9 There has been a lot of confusion throughout the f i lings as far as what these documents are. And just to be 10 11 12 13 14 15 16 17 18 The synopses i n question that we have discussed this 19 morn i ng are noncompulsory products that were orig i na l ly 20 prepared by the government and proposed to the mi li tary judge 21 in its original 22 but l ater wit hdrawn . And the government did not request the milita ry judge 23 approve those summaries fo r pr ovis i on to the defense . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21989 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 Nevertheless, we went ahead and provided them to the defense 2 to a i d i n the i r understanding of the materials and how these 3 peop l e fit into the overa l l discovery with respect to the RDI 4 program . 5 6 I'll ta l k a l i tt l e bit about how they were created. There are a number of products that the government produced 7 8 9 10 And then wi th respect to d. , again, as I sa i d, in 11 12 13 14 15 16 17 18 So when we prepared the synopses, those were prepa r ed 19 using the same batch of information that we used to populate 20 the other products. So there are -- there i s i nformation from 21 22 23 That comes from count i ng up the ¥JMfJ88tlfPP 21990 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 The y weren't meant to be all inclusive by any 9 10 stretch. 11 stretch , but just so meth i ng to orient the defense with respect 12 to how that person gene ral l y fit into the program. 13 They were n't meant to be comprehensive by any And so t o the extent there a re com pl ain t s that they 14 are not comprehensive, they we ren't meant to be. 15 the purpose for which we prepared them, and the government 16 certainly i sn't required to prepare them for that purpose. 17 MJ [Col PARRELLA ]: So in the absence That's not I und ers tand that 18 point, and that was a question that I had, that th ey ' re not 19 meant to be a l l i nc l us i ve or comp rehensi ve . 20 21 So wha t's the mechan ism, from t he government's perspective, the defense woul d ha ve to 22 23 TC [MR. GROHARING]: Well , certain l y they could take al l MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21991 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21992 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 J i m Fitzsimmons -- who we've ta l ked a lot about hi m, 17 18 19 20 21 22 At that po i nt Jim Fi tzsimmons di d not have -- he had not been read on or trained as part of the RDI program . 23 21993 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 They have -- I would say that the only reason they 10 know about Special Agent Fitzsimmons i s because of the 11 di scovery that we've prov i ded the defense. 12 13 As early as 2014 we provided discovery to the defense , documenting that Special Agent Fitzsimmons was 14 15 16 17 18 defense are c i ted by the defense. I wou l d just point 19 Your Honor to 20 21 That's the report that the government prov i ded to a l l the defense, I bel i eve, i n ocumenting Spec i al Agent Fitzs i mmons' interviews of 22 23 MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21994 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 MJ [Col PARRELLA]: Mr. Groharing, the synopses that you 2 have provided the defense , Ms. Radost i tz brought up a point 3 that they are on l y provided to the respective accused. 4 that the case? 5 accused? 8 di scovery was not any different for any of the teams . 9 Or a r e they pr ovided to counse l fo r all of the MJ [Col PARRELLA]: Okay. And then you said di scovery was 10 prov i ded, regard i ng the FBI, to the defense and to the 11 comm i ss i on . 12 comm i ss i on? 13 14 Where was -- when was it provided to the TC [MR . GROHARING] : Your Honor . Is Your Honor , I be l ieve -- one moment, I can get you the precise -- Your Honor , its's I believe it's i n the defense pleading. 23 government has prov i ded s i gn i ficant additional informat i on MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21995 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 MJ [Col PARRELLA ] : 538 and 561? 9 TC [MR . GROHARING]: 10 MJ [Col PARRELLA ] : 11 TC [MR . GROHARING]: 12 13 Is that related to why we a r e de l ay i ng Yes, Your Hono r. I unde rs tand. So one of the arguments of the defense was wi th That was intenti ona l . The se aren't thing s, as I've 14 said , that were cre ated and we we re ju st sum mariz i ng and 15 tu rn i ng over -- or they aren't things that existed and we 16 summarized and tu rne d over. 17 ourselves, and s pec i fical l y wit h the purpo se of prov i ding th em 18 f or the indiv idua l s we i den t i fied as being direct and 19 substantia l for the defense. These are things that we created So that's i ntent i onal. 20 21 22 they should make a discove r y r equest . The y should ask the 23 government for spec i fic additional informat i on rega rding the MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21996 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 pa r t i cu l ar matter. But the gove r nment has no obl i gation to 2 3 4 5 6 7 And j ust to be c l ear, those were materia l s that we 8 prov i ded dir ectly to the defense; they di dn't go through the 9 505 pr ocess . 10 11 12 Those aren't summa r ies that we r e app r oved by the mi litary judge and then we prov i ded them. So we addressed i n our mot io ns we provi ded responses to specif i c defense c l aim 13 14 15 16 17 18 19 They did appea r enough in the materia l s that we 20 pro vi ded a UFI so that t he defense c ould make sense of the 21 di scovery that they had. But if you l ook at e i the r of those, 22 and we addressed th i s i n our fi l ing, neither had any 23 mean i ngful contact with any of the accused i n this case . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21997 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 4 5 The gove r nment di d acknowl edge, in r esponse to the AE that in our f i ling. I would note , though, Your Honor, that a l though the 6 7 8 9 10 11 What I would respectfu l ly suggest i n those type of 12 instances, that the defense cou l d ha ve just asked us and we 13 would have expla i ned the disc r epancy and would have been able 14 to explain to them why they have di ffe r ent -- differ i ng 15 information. 16 17 18 19 20 21 22 23 21998 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 So that's not, absent some other connect i on 7 8 9 10 11 12 MJ [Col PARRELLA]: Ho l d on one moment, please . [Pause.] MJ [Col PARRELLA]: Okay. Mr. Grohar i ng, you may cont i nue. TC [MR. GROHARING]: So, Judge, I was just say i ng, absent 13 some other connection, an al l egation of abuse related to 14 another detainee is not something that the government would 15 necessarily prov i de in th i s case. 16 c l osely re l ated to our accused i t may become relevant. 17 Obviously, i f i t was But particularly with this one , the broomst i ck 18 incident wi th r espect to Mr . Al i is not someth i ng that the 19 government is disputing at a l l. 20 21 22 hat we provided to the defense. To the extent that indiv i duals ta l ked about that incident to the we prov i ded that to the defense , and we don't dispute 23 in any way that that happened. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 21999 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 And so the government, when mak i ng these summaries, 7 has to go wit h what we have. 8 information is incor r ect i n or iginal mate r ials , that 9 information could end up i n the defense summar i es . And so to the extent that We don't 10 audit every pi ece of information in the original materials of 11 the CIA when mak i ng these summaries. 12 13 14 15 16 17 18 19 20 21 22 23 22000 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 we've prov i ded to the defense. We've provided 185 statements 2 regarding these i nvest i gations. And many statements from 3 wi th i n those materials are contained i n the d . synopses . 4 I think that's where so me of the con fu s i on comes in. 5 6 Just moving spec i fi cal l y t was a reply f i led by the defense. And and , Judge, that The government does offer 10 hi gh l ighted, such that Your Hono r wil l be able to see exactly 11 the i nformation the defense cla i ms they do not have i n 12 13 Again, these a r e matters that the gove r nment suggests 14 shou l d be brought to the attent i on of the prosecution di rectly 15 by the defense. 16 are eas i ly expla i ned, and we're happy to do that. 17 19 I think most of these perceived discrepancies In this case we were able to find all the references the defense's attention to them. We cou l d have done that 20 wi thout the need of any t i me of the comm i ss i on or any f i lings 21 necessary. I wou ld commend that practice to the defense, and 22 we are happy to engage in it as necessary. 23 So, Your Honor, the request for re l ief is for all MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22001 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 summa r ie s -- I'm so r r y , syn ops e s. That i nfo r mation has been 3 prov i ded to the defense in other materia l s that they have , and 4 s o there i s no rea s on to go and r evi si t the or i ginal ma ter i al s 5 and conside r pr ovid i ng the orig i na l materia l s to the defense . 6 That r equest should be denied. 7 And the government wou l d j ust suggest that to the 8 extent the defense has quest i ons, they raise those wi th us , 9 and we a r e happ y to answer them . 10 11 12 MJ [Col PARRELLA ] : Oka y . Thank you, Mr . Groharing. Ms. Pradhan . ADC [MS. PRADHAN ] : Thank you, Your Honor. I j ust want to 13 note that of the dozen s of example s of maj or disc repan ci e s 14 that you f i n 15 Mr. Gr ohar i ng r eally only add r essed a couple of those today. 16 And aga i n , what I said at the beginning of my 17 argum e nts r em ains true , that the go vern ment stood up , 18 mi nimi zed the fe w ve r y s mall di sc rep a nc ie s, and di dn't re al ly 19 address the bi g ones. 20 21 MJ [Col PARRELLA ] : Okay. Le t me get to , I guess, an underly i ng quest i on that I have. 22 ADC [MS . PRADHAN ]: Yes, sir . 23 MJ [Col PARRELLA ] : The go vern ment has represented that -- MW,.5.5f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22002 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 I mean, these synopses were comprised, arguably 2 gratuitous l y -- there wasn't necessar i ly an overt 3 requ ir ement - - but were comprised of i nfo r mation that has been 4 prov i ded to the defense. 5 substitutions provided to the defense , put togethe r this index 6 to assist i n mak i ng sense of it. 7 So in other words , they took the So I guess what else is it -- I mean, I understand 8 that you want the underly i ng documents. 9 a lr eady app r oved those subst i tutions. But my predecessor So if you don't l ike 10 the synopses, why couldn't you j ust make you r own synopses? 11 And I guess you demonst r ated t o t he court, through 12 the use of these vivid examp l es, that you are able to so r t of 13 under s tand whe r e the r e is ho l es in the synop s es and where you 14 may need additional informat i on , and i n some aspects you have 15 gathe r ed that informat i on. 16 17 18 So I guess , you kno w, i t sounds like a motion for reconsideration i s , I guess , whe r e I'm going he r e . ADC [ MS . PRADHAN ] : Not at a l l , You r Hono r, and let me 19 explain why. 20 I th i nk the government used the word "chart." 21 talk i ng about several different th i ngs here. 22 Because we're talking about several different I think we're So we do -- it is ou r pos i tion that the i nfo r mation 23 and you hea r d 22003 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 that argument in open session, so I won't repeat i t here 2 today. 3 5 Because othe r wi se the only discovery that the government has prov i ded MJ [Col PARRELLA ] : Okay . But they represented too though 6 that it is not an a l l-comp r ehensive, complete synops i s of 7 those substitutions, those approved substitutions. 8 9 ADC [MS . PRADHAN ] : I unde r stand, Your Honor. But to be c l ear, 10 maintain are not compu l sory, that we bel i eve are compulsory, 11 we r e not approved by the mil i t ary commission; they we r e not 12 subjected to the 505 process. 13 or compa r ed wi th any other dis covery that the defense ha s 14 gotten . 15 So they have not been r eviewed And that is prec i se l y why we are he r e, because the 16 government produced those directly to us . 17 th r ough a 505 . 18 They di dn't put it MJ [Col PARRELLA ] : But the proc e s s to get to that , what ADC [MS . PRADHAN ] : No , Your Honor , and the r eason is 19 20 21 22 23 MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22004 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 this: Judge Poh l di d certainly go through the 505 process to 2 3 What we are saying is that that discovery , all of 4 5 those documents , do not contain al l of the documents that 6 underlie the pr ofiles that the gove r nment produced dir ectly to 7 us; that there is other information in the universe of 8 documents that the gove r nment used to create those prof i les 9 that are actually not i n the discovery that Judge Pohl 10 11 approved. MJ [Col PARRELLA]: Okay. So let's say that that's t r ue. 12 So if anything, then they gave you more than what was 13 requ ir ed, correct? 14 ADC [ MS . PRADHAN ] : That's not our posit i on , Your Honor . 15 16 17 18 19 20 So that's my firs t poin t , is t ha t they are -- they 21 are obl i ged to prov i de us more i nfo r mation than what was just 22 in that cha r t , r i ght? And that's actual l y ref l ected in the 23 record by statements -- in statements from Judge Poh l in, I MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22005 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 believe, Janua ry and again in Ma rc h when he stated why can't 2 you give the defense something that says on this date these 3 were the peop le who were there , th is is what they were doing 4 to them , r i ght? 5 6 7 8 9 10 11 12 universe of documents that ha ve to exist, and 13 that comprise so me of the examp l es I pro vided to the mi l ita r y 14 comm is s i on in my or i ginal argument today . 15 examples of the documents that have to exist, that the Some of the 16 17 18 19 20 21 22 23 22006 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 Now, they may not be obliged to produce this 5 information to us, and that's a quest i on for the mil i tary 6 comm i ss i on. 7 produce inaccurate i nformation to us. 8 9 But having produced it, they are obl i ged not to MJ [Col PARRELLA ] : We l 1 , but they r ep r esented to you at the time they gave them -- there is no guarantee on there that 10 they are a l l i nc l us i ve, comprehens i ve. 11 stated that he r e today in open court. I mean, the government 12 ADC [ MS. PRADHAN ] : Yes, sir. 13 MJ [Col PARRELLA ] : And ce r tain l y the defense wou l d be 14 free to come up with their own better product , add to the 15 product, change the product. 16 ADC [ MS . PRADHAN ] : Yes , sir . 17 MJ [Col PARRELLA ] : But it seems the gove r nment has 18 represented that eve r ything that was used to come up with the 19 20 prov i ded to the defense, whether that be the port i on that did 21 go through the 505 process that Judge Pohl approved, or some 22 other orig i na l document that didn't, but they chose to give to 23 the defense anyway. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22007 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 ADC [ MS. PRADHAN ] : 2 two re s ponses. We l l, and again, Your Honor, I have An d t he f irs t i s that it is ou r -- it i s our 3 position that that is simply not true; that is s impl y false. 4 We do not have al l of the documents that the government had 5 6 7 And i f you listen to the examples that Mr. Gro har i ng 8 prov i ded, he ce rtainl y didn't cover a l l of the gaps . 9 there is -- you know, there are -- there ma y be summaries that 10 contain addit i onal i nformation about some of the discrepancies 11 t ha t we noticed, but e i ther those are so -- those are 12 summaries as to the comp lete l y unre cogni zab le from what they 13 appear t o be i n the pro fi l e, so we co ul dn't poss ibly pu t the m 14 together, or they s i mp l y ha ve not been produced to us. 15 MJ [Col PARRELLA ] : So what about Mr . Groharing's po i nt? 16 I mean , yo u ha ve provided several examples. 17 exp lain ed or pr ovided an explanat ion , some not . 18 19 I mean , Some he has Bef ore coming to the co mm issio n and see ki ng r e l ief , why not seek clarif ic ation from the government? I mean, th e 20 di scove r y process i n t his case i s somewhat un ique; I th i nk yo u 21 wou ld agree? 22 ADC [ MS . PRADHAN ]: Yes, sir . 23 MJ [Col PARRELLA ] : Why not seek c l ar i ficat i on? MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22008 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 ADC [ MS. PRADHAN ] : You r Hono r , we have spent six years 2 s ubm i tt i ng di scove ry reque sts to the govern ment for precise l y 3 this sort of i nformation . I don't have th e number offhand , 4 but I kn ow that we have -- we ha ve said it in or a l a rgument 5 before , the numbe r of discovery requests perta i ning 6 7 8 I th i nk when the go vernment keeps mak i ng th i s 9 10 argument, as i f we are in some sort of domestic mediation, as 11 if I shou ld just ca l l them up a nd say , hey, I fou nd 57 errors 12 in this one part i cular page of the RDI index, could you please 13 explain eve r y s ingle one of them ---- 14 MJ [Col PARRELLA ] : I mean, I understand that i t's an 15 adversaria l process. 16 kno w, the adversarial process exists wh en the parties can't 17 come to an agreement. 18 19 I mean this i s essentially, as I understand it -this is ev i dence, this RDI evidence, this wi ll be defense 20 evidence. 21 But there's also an aspect wh ere, you Th i s i s evidence the defense wants to be the proponent of. So it's in the defense's i nterests to come up 22 wi th as complete and accurate and viv i d a description or an 23 account of th i s time that the accused were i n the program. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22009 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // So I don't know that you've answered the quest i on as 1 2 to when there can be clar i ficat i on . I certain l y understand 3 there's go i ng to be times where we are going to be here in 4 court litigating this. 5 know , why not go seek some c l ar i ficat i on? 6 But when we don't have to , why? You Because if I were to believe Mr. Groharing's account, 7 he's provided at least an explanat i on here i n the few mi nutes 8 that we've been sitting he r e in cou r t as to why, I guess, that 9 retort some of your examp l es . 10 11 ADC [MS. PRADHAN]: answer A few of them, Your Honor, and I I have two answers to that. 12 number of discrepancies. The first i s the sheer And I'm calling them discrepancies. 13 But our position has been , that 14 certain informat i on has s i mp l y been intentiona l ly stripped 15 from them. 16 have br i efed this fully and i nc l uded i t i n ora l argument, 17 Your Honor . 18 was to obscure the role of the And we bel i eve that the purpose of that -- and we 19 So the first answer to your question i s the sheer 20 number of discrepancies that were i nc l uded i n both the RDI 21 index, as we'll talk about in a little more detail 22 don't know that I need to go into a lot afte r this, but a 23 1 i t t 1 e bi t and the sheer number of discrepancies between MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22010 UNCLASSIFIED//FOR PUBLIC RELEASE I UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 And so that was our first -- that was our f ir st 18 method of ana l ys is, You r Honor, was exactly 19 the government's rationale that, hey, we're giving you these 20 prof i les. 21 have. it was using They're based on other i nformation you already We said okay, let's go through the information we 22 a lr eady have . And we found mistake after mistake after 23 mistake after mistake. And I use the word "mistake" loose l y. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22011 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // But we found so many di screpanc i es that i t's -- I 1 2 mean , at the very least it wasn't i n the interests of our time 3 to go back and s i t on the phone with Mr. Groharing fo r a week 4 and go through each one of them . 5 But the second reason , I submit to you, Your Honor, 6 and the r eason we would not go to the government with this, is 7 prec i se l y that question of intent. 8 numbe r of years , intentional l y withhe l d discove r y from the 9 defense . 10 11 The gove r nment has, for a This is -- it's irrefutable . And the pr i mary top i c on which the government has wit hheld di scovery 12 You heard them yeste r day talk about those statements as the 13 cente r pi ece of their ca s e . 14 cente r pi ece of their case was going to be wi thheld as long as 15 poss i ble. 16 17 Anything that undercut s the Now , I kno w Mr. Gr ohar i ng r eferred to the fact that he -- that the one-page document refer r ing to Mr. Fitzs i mmons 18 19 20 21 22 It was pr oduced as a chain-of-custody document , a l l right , and 23 bu r ied i n a whole lot of othe r documents . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22012 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 And so, you know, it's that kind of di singenuous 2 representation that led us to l i tigat i on when faced with a 3 4 basket of errors or discrepancies, of mistakes of th i s That is what l ed us to 5 6 And so, you know, I would just ask Your Honor to 7 refer -- and I know the mi litary comm i ss i on has already 8 refer r ed -- has already read the pl eadings . I would ask you 9 10 11 12 13 It is not our intention to come here and waste the 14 mi litary comm i ss i on's time wi th small errors. It's when you 15 start to put together hundreds of errors, in the case of the 16 17 18 potentially the most valuable evidence we could have . 19 when we come before the mi litary comm i ss i on and we say, look, 20 there is something ser i ously wrong, e i ther with how the 21 government is analyzing the i nformation that they have, or That's 22 wi th the underly i ng informat i on itself, right? 23 There's a mistake in one or the other . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22013 UNCLASSIFIED//FOR PUBLIC RELEASE I don't know UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 where that is. The on l y way to figure that out is to have the 2 3 4 Because stand i ng here i n front of you right now, I 5 6 don't have that abi l ity, and I have been through all of th i s 7 di scovery. We have spent enormous amounts of time going 8 9 10 11 12 13 I know Mr. Groharing talked a l i ttle bit about cross-referencing and imp l ied that perhaps we hadn't done that 14 cross-referencing. And to that I say not only have we done 15 that, but i t i s also impossible to Control-F what isn't there. 16 We can't f i nd informat i on that i s not in the prof i le . We 17 • • • • 18 • 19 cross - reference, until we were able to interview people. We 20 di dn't know that. 21 22 You know, now we hear, oh, we have th i s add i tional information. The only time we get admissions of e r ro r s , aside 23 · s when the government ¥JMfJ88tlfPP 22014 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 stands up here and gives us two or three small cor r ections, 2 and doesn't address the bi gge r i ssue , r ight? 3 They are not address i ng the bi gge r i ssue of have we actually summa r ized 4 5 6 Now, You r Hono r , you said something yeste r day about 7 proffers, and not want i ng to accept too many proffers on the 8 record . 9 he r e . And that is prec i se l y what the gove r nment is doing They are pr offering that they have been through -- you 10 know, that they -- that everyth i ng they used is summa r ized for 11 us. We are tell i ng you that is not the case. 12 And they are also saying that they went through - - 13 14 15 16 briefed it in our supp l ement , and we pul l ed up , I th i nk , f i ve 17 di ffe r ent sources from the di scovery , eve r ything we cou l d find 18 talk i ng about that i nc i dent , be c ause i t wa s a signif ic ant 19 incident. 20 21 22 23 22015 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLI C RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 Now, the government stands here and says I went back 6 and l ooked at the documents. It was somebody else. 7 zero indication i n anything we have been given that there was 8 ever anothe r i nc i dent l ike that , r i ght? 9 government is misrepresenting, or there i s some sort of 10 mi stakes in the original documents. 11 12 There is So either the The on l y way for us to know is by seeing the original documents . And I know I talked a l ittle bit in my orig i na l 13 my argument ea r l i er today about how even if that didn't 14 happen , that particular incident was not Mr . a l Baluchi , the 15 fact that i t happened more than once and on more than one in 16 deta i nee , by the same i nterrogator , is extraordinari l y 17 18 s i gn i ficant. It's extremely significant . The expe r imentat i on of techn i ques on Mr . al Ba l uchi 19 is something that i 20 they we i gh whether or not our laws were vio l ated with respect 21 to Mr. al Baluch i . s And so if that techn i que was experimented, 22 e i the r on him or on someone else, we need to know that . 23 That's going to figu r e in our eventua l ch r onology . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22016 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // So, you know, when we -- as I stand before you today, 1 2 we can go back a nd forth on these s mall discrepancies , and I 3 suspect we can do it fo r a ve r y long time; but it doesn't 4 address it doe s n't address the reason f or l i tigat i ng th is, 5 which is the volume of them , and how the government cou l d have 6 gotten so many things wrong i n both these summa r ies and the 7 8 9 10 And I just want to note that the r e is st i ll , stil l no explanation from the government as to why they have chosen to 11 12 13 14 15 16 MJ [Col PARRELLA ]: Ms . Pradhan , let's -- I don't th i nk 17 this was even add re ssed by the gove r nment, so the purpose of 18 the rebuttal a r gument is obviously to hit the points that he 19 brought up. 20 that up, and I noted that. 21 22 So le t's j ust wrap it up, ple ase. ADC [ MS. PRADHAN ] : You br ought That was my last point, You r Hono r . But I will just note that Mr . Groha r ing did go into some 23 explanation of why Mr . Fitzs i mmons was not i nc l uded, and MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22017 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 that's 2 MJ [Col PARRELLA ] : Got it. 3 ADC [MS . PRADHAN ] : Thank you, Your Honor. 4 MJ [Col PARRELLA ] : Thank you. 5 6 7 I understand. Thank you. Ms. Radost i tz . ADC [MS. RADOSTITZ]: Your Honor, I want to apologize, because I want to respond to your question to Mr. Groharing. 8 9 10 11 12 13 14 15 16 17 And that was -- so that's our confusion , is those two 18 di ffe r ent things . 19 It turns out one doesn't ex i st , and I wasn't -- I wasn't thinking about the fact that maybe it just 20 doesn't even exist. 21 MJ [Col PARRELLA ] : 22 ADC [MS . RADOSTITZ] : 23 I understand. So I want to apologize fo r that. And then I want to make one othe r point, wh i ch is MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22018 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 that Judge Pohl often said that when he's look i ng at 2 substitutions -- he's not looking at what the government isn't 3 4 seek i ng to subst i tute . So he only knows that they've got these documents and 5 they want to give us these documents . 6 are there 100 other documents that they're using and they have 7 made a determ i nation that they're not relevant or they're not 8 materia l or whatever. 9 What he doesn't know is And so that's where th i s i sn't a reconsideration, 10 because what we're ask i ng for is for us to be able to look at 11 a l l the documents that they considered and put into these 12 synopses, i s that those are documents that haven't gone 13 14 15 16 17 18 th r ough the 505 pr ocess. Those are the on l y two po i nts I wanted to make . MJ [Col PARRELLA]: Thank you. Ms. Bormann? LDC [ MS . BORMANN]: Thank you. Just a coup l e of things to answe r your question to Ms. Pr adhan. I think you said -- it's 19 sort of why can't we a l l get along? 20 So Judge Pohl started i n 2012 wi th that same thing 21 and hasn't asked that for many years, and maybe it's because 22 he has pr esided over, and had pres i ded over a l ong mo r ass of 23 us trying to get informat i on . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22019 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // And so I'm just going 1 2 what was a rgued ear l ier by Mr . Montross. 3 Judg e Pohl issued -- we r e qu es t ed discov ery , ni ce l y , kindly . 4 We sen t so mething , we get no r esponse . 5 re sponse that says no . 6 We f i le a mot i on to compe l . Eve ntually we get a We have to l it i gate i t. 7 And then Judge Pohl agrees wi th us, and we get an order. 8 then it takes two ye ars of u And of defense resou rc es e- mai l i ng , prodding, 9 10 asking nicel y, just to get what has a l ready been ordered to be 11 prov i ded. So that horse left the barn a long time ago. 12 2011, I 13 began reque s t i ng discovery pre-refe r ral , because we ha d t o 14 subm i t a mi tigat i on re port, and now we are here . 15 cont i nue to subm i t disco very requests, just like Mr . Groharing 16 says . 17 So yes, we When we do that , and then we have to file a motion to 18 co mpel , the government comp lain s that we are f i ling too ma ny 19 motions. But we co ntinue to do th i s i n spite of the fact that 20 it seems to get us no where. 21 22 23 earl i er . I have a question regarding the exhib i ts that are provided by the government to me Are those be i ng made part of the record? MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22020 UNCLASSIFIED//FOR PUBLIC RELEASE Because UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 I'll te l l you why. 2 Judge Pohl informed me in a very dir ect way about two 3 years ago that prov i ding exh i bits on the day of oral argument , 4 where the parties had not seen them a nd could not com ment 5 about them , and then asking the judge to consider them without 6 the other party being able to comment upon them, was not to be 7 used regu la r ly. And what the gove r nment has done he r e is provided 8 9 some highl i ghts. I don't know what they're about . The y 10 haven't been supplemented into the record . 11 from discovery that they had in their possession dur i ng the 12 pl eading period i n this case. They appear to be And so i f the court ' s acceptance of exhibits i s going 13 14 to be changed from what Judge Pohl did, I'm happy to go along 15 with that program. 16 MJ [Col PARRELLA]: I'm not changing any procedure. The 17 government had them marked because they i ntended to talk about 18 them , and then Mr . Gro har ing said that over the lunch break he 19 reviewed it, rea l ized i t wasn't noticed, and wasn't going to 20 argue it . 21 22 So I'm going to keep them marked in the record, just s i mp l y so i t's a complete r ecord, so we know what it was. 23 if the appellate court wants to look at what we were MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22021 UNCLASSIFIED//FOR PUBLIC RELEASE And UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 di scuss i ng, they can see that it's in the record. But I'm not 2 going to cons i der it as pa r t of their argument , if that's what 3 you mean. LDC [ MS . BORMANN ] : 4 Great . That's what I wanted to know. 5 Thank you . 6 MJ [Col PARRELLA]: 7 ADC [ MS. LACHELIER]: You' re welcome. Just two quick points, Judge. Just 8 by way of history, i n 286 series -- we draw you r attent i on to 9 286 ser i es , which was or iginally f i led in Ap r i l 2014 . 10 was a motion to compel the Senate repo r t. 11 had not yet been publicly r e l eased . At that point it Eventua l ly the 12 This wh i ch was 13 their propo s a l fo r thi reco r d is 14 replete with Judge Poh l saying this is just a first vol l ey 15 my wo r ds, not his -- but i nstances whe r e Judge Pohl made c l ear 16 that 17 f ir st pass at discovery of the SSCI report , of mater i als 18 underly i ng the SSCI r eport. was just supposed to be the 19 20 21 22 23 And to echo Ms. Bormann's statements about the r ecord MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22022 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 of attempt i ng to get di scovery from the government: The SSCI 2 report -- we can specu l ate , but I think i t's fair to say the 3 government was never going to release the documents unde r lying 4 that r eport unti l the Senate r e l eased it . 5 And why can we say that? Because , as Ms . Bo r mann 6 a l luded to, she submitted a discove r y r equest to the 7 government back i n 201 1 . 8 asking for these types of documents back in 2013 at l east . We submitted a discovery request So the requests have been out there and pending wi th 9 And the only reason they have been br ought to 10 the gove r nment. 11 e ven t h 12 that we have had to engage in to get them he r e, and because 13 they were forced to with the public relea s e of the Senate 14 report . 15 s because of the l it i gation And then the othe r point I wanted to go back to was 16 something Mr . Groharing ment i oned , that they can only gi ve us 17 what's as good as what they get from the CIA, or whateve r 18 agen c y they're deal i ng with. 19 I don't know where that passes for app r op r iate. If a 20 police off i cer hands a lawyer a r eport that has bl atant 21 omissions or a l i e i n i t, certa i nly the gove r nment is going to 22 be sanctioned for that . So they shou l d not be ab l e to get 23 away with that ki nd of passing the buck to the CIA. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22023 UNCLASSIFIED//FOR PUBLIC RELEASE The CIA UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 can then do whatever they want with what they produce, and we 2 get what's left. 3 So at some po i nt sanct i ons would be appropr i ate if and when we ask for them . MJ [Col PARRELLA]: 4 We l 1, I didn't take it as that they 5 would deliberate l y pass something they knew to be fa l se . What 6 I took i t as i s that in the volume of documents, they s i mp l y 7 can't, you know, audit the veracity of everyth i ng that another 8 agency puts into their r eports . 9 deliberate l y but 10 ADC [MS. LACHELIER]: So not that they would do it No, and I'm not al l eg i ng they wou l d 11 do it deliberate l y, but turn i ng a blind eye to the fact that 12 maybe their practices on the agency s i de are not perfect, or 13 not as good as they should be, should not be the standard . 14 And the agency shou l d not be ab l e to use the government as a 15 Chinese wa l l to say we took care of it, we handed it to a 16 prosecution that doesn't know better. 17 on. 18 19 MJ [Col PARRELLA]: Okay. And that's what's going I understand. We're going to go ahead and move on I th i nk 20 we've heard -- gi ven the overlap, we have heard some of th i s. 21 But i f we can keep that in mi nd as we present our arguments so 22 we're not repeat i ng it . 23 ADC [MS . PRADHAN]: Thank you, Your Honor. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22024 UNCLASSIFIED//FOR PUBLIC RELEASE Your Honor i s UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 abso l utely correct. In the i nterest of time, I wi ll be as 2 brief as poss i ble on this . I just want to hi gh l ight rea l ly a couple of examp l es 3 4 regardin We have a lr eady argued the base motion and the 5 reply in open and c l osed session in March, and I went through 6 numerous examples. 7 And I would, as I said, refer Your Honor back to 8 which is real l y the largest ana l ys i s that we conducted 9 of the original RDI index , much of wh i ch , as we relate i n our 10 second supplement, i s sti l l relevant to the second RDI i ndex. 11 But I just want to give you two examp l es of 12 conflicting and missing information that have cropped up that 13 triggered the two supp l ements that we fi l ed , including the 14 second RDI index . 15 The first example is the example that I skimmed 16 across i n open sess i on of Mr . a l Bal uchi 's torture. 17 reca l l that Mr. Montross correctly ident i fied this pattern , 18 that the government offered no specific rebuttal to my I want to 19 20 in open session 21 22 and br oadly stat i ng that, hey, 23 ¥JMfJ88tlfPP 22025 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 dril l down and respond to my po i nt. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Now , r ecal l a l so the example of D95, who may or may 23 not -- we can't dr i l l down on exactly whethe r he was -- have MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22026 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 been in the room when Mr . al Ba l uchi had the stick put beh i nd 2 his knees. So those are the issues that we' re having with 3 5 6 7 8 Because if you look at the actual summar i es that a r e 9 10 11 to the occas i ons of Mr . al Bal uch i 's - - what they refer to 12 13 14 15 16 MJ [Col PARRELLA ] : I don't have Bates numbe r s , Ms. Pr adhan. ADC [MS . PRADHAN ]: 17 I apo l og i ze , Your Honor . But we have -- these are all attached to either 18 19 20 21 22 what . You can't tel l from those summaries who i s doing There i s absolutely no way to tel l who i s obse r vi ng , 23 who i s app l ying the techn i ques, who's check i ng him, who is MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22027 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 asking questions, who i s wri ting things do wn. And so that's 2 our problem. Th e r e ' s no -- there's also no way, even i f you go 3 4 out side of those two s umma r ie s in wh i ch the -- that actual l y 5 describe the app l ication of the EIT s , there's no way to 6 connect those descr i pt i ons of Mr. al Bal uch i 's torture wi th 7 the statement summaries that surround those 8 9 10 statements that he apparently made under torture. way to connect those. So c l early some of them were taken during hi s 11 12 torture. 13 There's no But we, again, can't figure out which personnel were An d that wou l d be relevant, 14 15 16 17 18 19 I don't know why i t seems so difficult to identify 20 who was in the room, but this is a basic, basic question and 21 one that we took up with Judge Poh l . 22 kno w, a l so see med to express some f r ustration wit h the And Judge Pohl, you 23 government that we sti l l did not have the tools rele vant to do MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22028 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 22 that. Now , the second example , briefly , Your Honor , i s that Those are the two examples I have for you, 23 Your Honor . Needless to say , the overarching questions that I MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22029 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 wanted to raise for you -- that I did raise for you at the 2 beginning of my argument apply equa l ly to the argument 3 4 And rea l ly the only -- we be l ieve the only conclus i on 5 the mil i tary commission can come to is that at th is point i n 6 the discove ry process, six years in, and several years - - you 7 know, again, I don't mean to beat this in, but there is some 8 s i gn i ficant -- there is some significant frustrat i on with the 9 fact that seve r a l years after we were meant to have all of the 10 11 12 13 14 doesn't want to pr ovide a chronology for us , if they don't 15 want to provide exhaustive information about the i nd i vidua l s, 16 that is -- you know , we don't believe they are fu l fi l ling 17 their dis covery obl i gations i n that. 18 But we st i l l need this inf ormation if we are going to 19 go to tria l . 20 to put together a proper defense is to have those or i ginal 21 documents, because the summaries are j ust not rel i ab l e. And so the only way to get that i nfo r mation and 22 MJ [Col PARRELLA ]: 23 ADC [ MS . PRADHAN ] : Thank you. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf Thank you. , , ,s, eer , , 22030 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 MJ [Col PARRELLA ] : 2 LDC 3 MJ [Col PARRELLA ] : Ms . Bo r mann? 4 LDC Nothing further , Judge. 5 MJ [Col PARRELLA ] : 6 LDC 7 MJ [Col PARRELLA ] : 8 LDC [ MR . RUIZ ] : 9 MJ [Col PARRELLA ] : [ MR . NEVIN] : Mr. Nevin? No , thank you , Your Honor . [ MS . BORMANN ] : Mr . Ha r r i ngton? [ MR. HARRINGTON ] : Nothing, Judge. Mr. Ruiz? Nothing , Judge . Tr i al Counsel . 10 TC 11 talked abou t 12 everyone's benef i t 13 proce s s of ho w this works . [MR. GROHARING]: Just a few po i nts, Your Honor. this an awfu l lo t already, We but i t might he l p for j ust to help eve r yone understand the 14 15 16 17 18 19 20 21 22 23 22031 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 That couldn't be completed unti l we had all the 8 di scovery approved that we could gi ve to the defense so we 9 could put the Bates numbers on the documents. We did not date 10 the materials for reasons that we've exp l ained to the mi litary 11 judge in the ex parte pr oceedings. 12 13 14 15 But also on the i ndex, we then put -- to the extent 16 17 18 19 20 21 22 23 22032 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 Is a l l of the discovery cons i stent? No, it can't be, 2 because al l of the original i nformation i s not consistent. 3 think Judge Pohl certa i nly understood that . 4 the or iginals , and I think the military judge l ikely 5 understands that as we l l . I He had seen a l l 6 7 8 9 10 11 So counsel is right now s i tuated to understand when a part i cu l ar statement was made in relation to part i cu l ar 12 13 14 15 16 Again, i t can't be perfect, just by the nature of the 17 information that we are starting wi th . 18 be wrong on origina l documents. 19 something that doesn't look right on the index, they should 20 bring it to our attent i on, and we' l l make as much sense of it 21 as we can, and we are happy to do that, just l i ke I mentioned 22 before with respect to the synopses. Sometimes dates wi l l And if the defense gets 23 22033 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 MJ [Col PARRELLA]: With respect to that -- and I th i nk 4 the question, you know , that Ms. Pradhan posed to the 5 comm i ss i on is: 6 7 8 9 TC [MR . GROHARING]: 10 MJ [Col PARRELLA]: 11 12 Exactly . So what about other folks that were in the room? TC [MR. GROHARING]: And what we ' ve said, when we have 13 provided the indices to the defense, was that if the defense 14 believed they needed to 15 16 17 18 19 20 So we are amenab l e to that process. 21 invoked that process to make such a request. 22 that in September 2017 when we pr ovided the ROI indexes to the No one's ever But we indicated 23 defense . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22034 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 19 We don't get spec if i c requests. want everybody who was in the room on every occas i on. 20 that cannot be the standard. 21 It's we And "Direct and substantia l " must mean something just beyond present. 22 23 22035 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 And , Judge , this ties i nto the argument we're hav i ng 4 Again , the matters for wh ic h they're seeking 5 additional informat i on are matters that rea l ly aren't in 6 di spute in the f ir st pl ace. And so you should consider that 7 when you cons i der the defense arguments i n particular on this 8 case asking fo r all or i ginal informat i on that the government 9 summa r ized and the mil i tary judge approved that was pr ovided 10 to the defense. This is a mot i on to r econside r, just as Judge Poh l 11 12 correct l y pointed out when we l i tigated this mult i ple sess i ons 13 ago. 14 motion. And we would ask that the commission deny the defense Absent add i tiona l questions, Judge, that's all I 15 16 17 have . MJ [Col PARRELLA ] : With respect to the specific example 18 19 20 21 22 TC [MR . GROHARING] : That's correct, Your Honor. 23 .-·-·.. - .... --. -----·----· . . ·-· ·-· . ---. ...... - , , ,s, eer , , ....... - . .. ,.---· 22036 UNCLASSIFIED//FOR PUBLIC RELEASE The UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 We looked at the direct and substantial contacts. That 2 3 4 5 6 7 8 We have given r eports to the defense. 9 At some po i nt 10 11 12 13 14 But absent that , we don't be l ieve that there are any 15 additional people that have been spec i fical l y i dentified that 16 we need to provide the defense. 17 them . 18 be - - again , that's what we get is , every s i ng l e person and 19 every s i ng l e event. 20 and we wil l f i eld those and respond to those as we ge t them 21 and l it i gate them as necessary. But at this point it's on And again , i t has to be a spec i fied request. It cannot It has to be a ta r geted, specif i c request 22 23 22037 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 TC [MR . GROHARING]: So in that case, Judge , if the 4 defense ma ke s that reque s t , 5 6 7 8 I would cla r ify that wi th the defense . Assuming 9 that's wha t the y wa nt , and cons i stent with wha t's now 10 Protect i ve Order #4, we would pass along that request, 11 12 13 14 15 16 17 18 19 But i t wou l d start as a request for more informat i on. 20 Presumabl y they wou l d want to kno w more about what happened at 21 22 23 MJ [Col PARRELLA ] : Thank you, Mr. Groharing. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22038 UNCLASSIFIED//FOR PUBLI C RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 LDC [ MR. NEVIN] : 2 MJ [C ol PARRELLA ]: 3 LDC [ MR . NEVIN]: Could I be heard, Your Honor? You may. Thank you . And jus t to r es pond to the 4 la s t bit of co ll oquy that you had with Mr. Gro har ing , because 5 this wasn' t raised i n the first ro und of arguments about this . 6 7 But this has been a persistent problem, and an approach that we' ve taken in motions to compel, and talking 8 9 10 11 12 13 14 15 16 17 18 19 And the co un se l suggests, wel 1 , if there i s someo ne you want to talk to, come for wa rd and te l l us. 20 course, the question is: 21 Well, of How wou ld we know that? And I'm not saying i t woul d be i mposs i ble to kno w it, but generally 22 23 22039 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 But I've done this, I don't know, pro bab l y l ite ral ly 4 5 hundreds of t i mes. 6 a misdemeanor tr i al that we are getting ready to ha ve, or 7 maybe it's a felony. 8 that we can f i nd who was i n the bar, l et's say , and we're 9 going to ask them, and here i s what happens . 10 It's a bar fight . and didn't see that. 12 after. It's We're going to go and talk to everybody This guy sees th i s. 11 It's a shooting . This guy here was look i ng down Th is guy over here saw the next second And when you talk to everybody, what you get is -- 13 14 15 16 I don't know i f this is the right time or the right 17 mechanism to present this issue to you for resolution, but 18 your quest io n rais ed it -- your quest io n to Mr . Groha r ing 19 raised i t. 20 21 And I just wanted to speak to this now to have th i s in your random access memory, that th i s i s a deficient process 22 on its face. I mean, by -- f r om the outset , this does not 23 giv e us the abil i ty to understand and pa i nt a complete MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22040 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 pi cture. There are people out there -- I promise you , there 3 4 5 6 And j ust as we we r e ta l king about yesterday, the need to get 7 to these deta i ls, the way you get to them is you talk to 8 everybody . 9 10 11 12 And we a r e not in a posit i on to do that . So I just wanted to say that . MJ [Col PARRELLA ] : Thank you , s ir . Thank you, Mr. Nevin. Mr. Mont r oss. DC [MR. MONTROSS ] : Thank you, Your Honor. In my mo l dy 13 14 15 16 17 18 19 20 21 22 So seem i ng l y the ir def i nition of "direct and 23 substantia l contact" is so restrictive and so narrow that MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22041 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 You no w, I' ve done cap i ta l work in Alabama , and I 8 9 thought discovery was bad in Alabama, okay? At least when my 10 c l ient was beaten in Al abama by a pol i ce officer, I got to 11 f i nd out who were the other pol i ce officers who were present 12 witnessing that. 13 may not have sa id a word to my cl ient . 14 f i lled out a pol i ce repo rt regarding my client . 15 f i nd out who was in that room. They may not ha ve touched my cl i ent. They They may not have But I got to 16 And under this restrictive definit i on of "d ir ect and 17 substantia l contact , " I know no one else who was i n that room 18 when Mr . Bin'Attash was being beaten and eventual l y some f orm 19 of answer was extracted from him. 20 Th is is the only court I've ever been assoc i ated with 21 where that is a struggle that we are fac i ng on a routine 22 basis. 23 MJ [Col PARRELLA]: Thank you. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22042 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // Okay. 1 Wou l d anyone else on the defense? 2 Ms. Pradhan? 3 ADC [MS . PRADHAN]: I promise to keep th i s short , 4 Your Honor , but -- excuse me , I'm sorry, because I think 5 Mr. Nev i n and Mr . Montross have covered some of the i ssues 6 that I wanted to ta l k about wit h what Mr. Groharing says. 7 But I wanted to show you -- i f I may ha ve access to 8 9 10 MJ [Col PARRELLA]: 11 ! I ~ 14 I ! ~ I • I • ou. Th i s i s i n the record at Th i s i s the first page. 12 13 • : ! I You may. Now, I unde r stand that the government be l ieves the r e is a way this is supposed to work; there is a process to t hi s ; 15 16 17 I understand how it's supposed to work, right? 18 understand ; this i s a fairly stra ightf orward Exce l 19 spreadsheet. 20 21 We That i s not, in fact, how i t does work . And aga i n, I refer you back to our plead i ngs. Th i s is the first page that is supposed to cover from before, you 22 23 22043 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSI FIED//FOR PUBLIC RELEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f / / f8 / 9i!f / / 1 Th is ; s f or Mr. al Baluch i . 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 II II 22044 UNCLASSI FIED//FOR PUBLIC RELEAS E UNCLASSIFIED//FOR PUBLI C RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // MJ [Col PARRELLA ] : Okay. 5 MJ [Col PARRELLA ] : Al l r i ght . 6 ADC [ MS. PRADHAN ] : Th i s i s page 2 of that attachment. 1 Just for the reco r d, what you 2 3 4 Thank you . 7 8 9 10 11 12 13 14 15 16 17 18 19 20 But, I mean, there a r e so many of these i nc i dences, 21 22 r i ght ? In open a r gument we talk about how the gov ernment 23 refer r ed to 10 0 occa s ions on whi ch Mr . a l Balu c hi cooperated MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22045 UNCLASSIFIED//FOR PUBLI C RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 wi th investigators, right? 2 3 4 5 6 7 8 9 10 11 12 So it is entirely poss i ble that on those significant 13 occas i ons whe n Mr . al Balu chi i s cooperat ing with 14 investigato r s , r i ght, that there are people who we r e present 15 who had that contact, who had that -- who witnessed those 16 events , who are not listed here . 17 whethe r they're i n the or i ginal documents, and the government 18 i s ju st not putt i ng them i n there. 19 And we just don't kno w Well, we know they are in some of the summaries. 20 There' s just so much internal inconsistency here that it's 21 22 impossible to use this as a guide. And the one last po i nt I wanted to make i s there has 23 been a l ot of discussion ---MW,.5.5f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22046 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 Thank you. I'm done with the document camera. 2 There's been a lot of dis cuss i on a bout direct and 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MJ [Col PARRELLA ]: Thank you. 23 ADC [MS . PRADHAN ] : Thank you. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22047 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 TC [MR. GROHARING]: Judge, i f I could just make one po i nt very br i ef l y. MJ [Col PARRELLA ] : No , thank you . What I don't wa nt to 4 do i s get engaged in a back-and-forth . 5 proponent . 6 I've heard everything I need to re nder a decis i on. 7 The defense is the I'm going to give them the last word . I th i nk So wi th that we 're going to take a 10-minute re cess, 8 we 're going to come back . We ha ve two mo r e AEs to take up . 9 The commission is in recess . 10 [The R.M.C. 806 session recessed at 1442 , 16 November 2018.] 11 [The R. M.C . 806 session was called to order at 1503, 12 16 November 2018.] 13 MJ [Col PARRELLA ]: The commission i s ca l led back t o 14 order. 15 recessed are aga i n present. 16 17 18 19 Al l part i es who were present whe n the commissio n last I wi l l also note that Genera l Ba ke r is not present or no lon ger present, nor was he during our last sessio n . Ms. Bormann? LDC [MS. BORMANN ] : Capta i n Brady has been excused to do 20 other work as we l 1 . 21 22 23 MJ [Col PARRELLA]: Okay. Thank you . Mr . Connel 1 . LDC [MR . CONNELL]: Ac cou nting fo r parties, Lieutenant MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22048 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 Colonel Thomas and Mr. Farley have not been present since the 2 lunch break. MJ [Col PARRELLA ] : 3 Thank you. Okay . 4 TC [MR . GROHARING]: 5 6 Subject to your questions , Your Honor. 7 MJ [Col PARRELLA ] : No quest i ons. 8 LDC [MR . CONNELL ] : You r Hono r, I put in unclassified 9 sess i on a l ist of motions as one of my s l ides demonst r ating 10 how many di fferent threads of this case have come together in 11 Judge Pohl 's dec i sion i n 524LL. 12 di sparate pieces that I have to address over the course of 13 this . 14 as efficient as I can , but I cannot prom i se brevity . The -- so I have a l ot of So I wi ll not l i e to you , this is not brief. I wil l be The first point ---- 15 16 MJ [Col PARRELLA ] : We l l , you understand I get veto powe r . 17 LDC [MR . CONNELL ] : You have al l the powe r i n the world , 18 s ir . 19 wait until next time, that's what we wil l do. 20 I do whatever you say. But , you know , and i f you say But the first issue that I have to br i ng to your 21 attention i s the -- we ta l ked about in unclass i fied session 22 the strategic decis i on that the government had to make . There 23 we r e a l ot of pieces of investigat i ve prohibit i ons that did MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22049 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 not make it into 524LL. There' s a ser i ous conf l ict of issue -- a co nfl i ct of 3 interest issue because of the conf l ict between the 4 in vest igat ive prohibitions a nd the duty of cou nse l to 5 6 7 8 9 10 11 12 13 14 The i mportance of this to th i s mot i on to reconsider , 15 524LL, i s the strategic decision of the prosecution whether or 16 not to seek a protective order. 17 sess i on about the strateg i c dec i sion to choose the protect i ve 18 order route under 949p-6 as opposed to the UI route. 19 a place where they made a different strateg i c dec i sion. We talked i n unc l assif i ed 20 21 22 23 22050 UNCLASSIFIED//FOR PUBLIC RELEASE Thi s was UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 that protective order i n either separate from or i n add i tion 2 to or comb i ned wi th the other protect i ve order . 3 And there was some back and forth between the government there . I would cite the mi l ita r y commission to the 4 5 6 7 8 At that po i nt , 9 udge Pohl directed the 10 government to redraft the order if they wanted one. Now, ultimate l y the government did not redraft that 11 12 order, and they did not seek any further relief strangely in fact , did not get wrapped up when 13 14 Judge Pohl issued a number of sort of -- AE 524LL wrapped up 15 the protective order issue, but then he i ssued other orders 16 deny i ng , for example, the UI issue because i t was consumed in 17 AE 524 . 18 19 The significance the r e is that as we talked about in unclass i fied session, the government made very clear strategic 20 decisions as to which mechan i sm it wanted to proceed under. 21 It chose the protective order regarding i n the 524 series to 22 proceed under , not the UI framework, which i t wou l d have done 23 otherwise, ¥JMfJ88tlfPP 22051 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // The second po i nt that I wi sh to make i s a response to 1 2 the government's claim that the - - Judge Pohl' s footnote 3 c i ting all the di fferent classified evidence that he had 4 reviewed is in some way inconsistent with his decision that 5 making a 6 adequate to substitute for another document, it was conflicted 7 in some way -- the government relied very heav i ly on th i s 8 point -- wi th the idea that at that t i me when he was making 9 a l l those dec i sions , he assumed there would also be defense 10 making dec i sions about whether one document was investigat i on. 11 12 13 14 15 16 17 18 19 20 21 The -- but the s i gn i ficant point that I want to tell 22 you i s that when Judge Pohl was taking a look at all these 23 i terns, and he would say, al 1 right , so we have an or i ginal MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22052 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 document which we just heard a l ot about, and then we have a 2 3 4 5 6 7 8 9 10 11 12 13 14 It is instead to say that Judge Pohl had that delta 15 in mi nd when he was saying whether it would be appropriate to 16 utterly prohibit defense i nvest i gation into black sites that 17 is independent outs i de of its very narrow protoco l . 18 19 And just to give you ju st a couple of quick examp l es . to te l l you what you are look i ng at, 20 21 22 23 22053 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSI FIED//FOR PUBLIC RELEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f / / f8 / 9i!f / / 1 2 So, fo r examp l e -- i f I may have access to the 3 4 5 do c ument ca mera. MJ [Col PARRE LLA ] : 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 22054 UNCLASSI FIED//FOR PUBLIC RELEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 to preserve the i nd i vidua l idiosyncrasies and character. Like 2 we don't know what -- we don't ha ve a close-up that gives us , 3 fo r example, who wrote th i s . 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 22055 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 No document that the go ve rn ment has pro duced 2 ha s anything exp l aining what t hi s i s about. Bu t Ju dge Pohl 3 thought that us hav i ng pictures of it was e nough to give us 4 s ubstant i a l ly the sa me ability to pr esent a defense. 5 6 7 8 9 10 MJ [Col PARRELLA ]: Mr . Connell , just a rem i nder, when you lean over the document, just keep the mike i n front of you . 11 LDC [MR . CONNELL]: Thank you for that, sir . 12 MJ [Col PARRELLA ] : Yes. 13 LDC [MR . CONNELL]: 14 15 16 17 18 19 20 21 22 23 And then f i na l ly , the same sort of error is MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22056 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 The point of that is not to rel i tigate that quest i on . 8 9 I understand that I lost. It is instead -- it is , in my vi ew , 10 crit i ca l ly important to understand -- and I'm done wi th the 11 document camera, thank you -- that when Judge Poh l evaluated 12 holistical l y all the information which he recited in his order 13 in 524LL, that the discove r y that the government had given us , 14 among other things , the voluminous , extraordinari l y voluminous 15 di scovery the government had given us was not the same as 16 a l lowing defense investigation. 17 delta between what the or i ginal informat i on would provide and 18 what the substituted information would provide , I would 19 suggest. 20 He had i n mind the gaps and The third point that I want to make is, i s closely 21 related to one that the government just argued re l at i ng to the 22 impact of Pr otective Order #4 that Judge Pohl knew when he was 23 making his decis i on and how -- what the difference between MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22057 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 mere discovery is -- thank you, sir -- between mere discovery 2 and discovery plus i nvest i gation , which i s normal l y considered 3 to be the ful l function. The gove r nment c l aimed on , I noticed l ast Wedne s day , 4 5 6 7 8 9 10 11 12 13 14 15 16 And I think that the ROI program , 17 as Ms. Pr adhan said earlie r, is not the appropriate standard; 18 it's the treatment of the defendants i s the app r op r iate 19 standard. 20 arbitrarily or perhaps bureaucratical l y def i ned as the ROI 21 program. 22 That's the universe of discovery. Not what i s But so I do want to po i nt out the gove r nment just 23 refer r ed to this . If I could have access to the document MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22058 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 camera aga i n, 2 MJ [C ol PARRELLA ]: You may. 3 LDC [MR . CONNELL ] : So th i s i s the r eport documenting the 4 inter view s of Mr . Al i , according to the gove r nment , what it 5 had pr oduced pr io r to May of th is year. 6 could debate whether this is a repo r t at al l ; i t l ooks more 7 l ike a l etter to me. 8 9 And, you know, one But there i s only a sentence and a ha l f about i t that refers to i nte rvi ews at a l l , and that's 10 11 12 13 14 15 16 17 18 19 20 21 22 23 22059 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 the time of the closed argument in May 2018 is exact l y the 2 3 4 5 But i n May 2018 , Judge Pohl and the defense both 6 thought that Specia l Agent Fi tzsimmons, who we ta l ked about at 7 the time, wou l d fal l into the non-CIA catego r y, that he would 8 be category 1 in the protect i ve order instead of category 4 in 9 the pr otective order. 10 We knew at the t i me on l y that -- only just at that 11 12 13 14 15 16 17 18 19 20 21 22 23 Judge Pohl dealt with this in Protect i ve Order #4 . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22060 UNCLASSIFIED//FOR PUBLIC RELEASE I UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 mean, he adopted -- essentia l ly he adopted my scope a r gument 22 But i t's a perfect example, sepa r ate f r om -- and so 23 Judge Pohl later came to know that informat i on . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22061 UNCLASSIFIED//FOR PUBLIC RELEASE Surely he UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 t ook t hat i nto account in the crafting of Protect i ve Order #4 2 in AE 524LL , but it's a perfect examp l e of the impact of 3 Protect i ve Order #4 on us and the defense, i n that prior to 4 Protect i ve Order #4 , the defense could and did interview 5 Spec i al Agent Fitzs i mmons . 6 And, you know, it's -- I was taken -- the other day 7 the government argued that why wou l d any of these people want 8 to talk to the defense? 9 the mil i tary commission reflected i n one of its questions , the Wel l , the actua l real i ty is , and what 10 actual rea l ity is that most people are wi ll i ng to ta l k to 11 profess i onals , and that you pr esent your -- if you're honest 12 about your credentials and you exp l ain what you're actually 13 doing, what your r ol e i n the process i s, and behave i n a 14 profess i onal manner , most people wi ll ta l k with you . 1 1 1 1 1 2 2 2 22062 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 subject to the restrictive protoco l that the government has 2 imposed . 1 1 12 And what we di d wit h that informat i on is twofo l d. 13 Fir st, i t l ed us to push the government for more discove r y ; 14 and second of al l , i t l ed us to other people, because he 15 16 17 18 19 20 21 22 23 22063 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 sorts of useful i nformation for the case in general. 2 3 4 5 6 7 8 I would like to give you examples of different ways 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 22064 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // hey do fall into the category -- at least 1 2 3 4 5 We are not al lowed to , under Protective Or de r #4 , speak to them about that as we f r equently di d befo r e . In 6 7 8 9 10 11 12 13 14 15 16 17 18 Gi na Haspel, 19 talked extens i ve l y about her various adm i nistrative roles i n 20 the RDI program. 21 22 She testif i ed about it in front of Congress. James Mi tchel l He wrote a book and has been out on book tour . 23 book signings . We have been out to hi s He didn't promise to meet with us at any book MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22065 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 s i gn i ngs, but we've certa i nly been there. MJ [Col PARRELLA]: I think I get your point, Mr. Conne l 1, 3 that , you know, i f approached properly there are people who 4 would be willing to speak to the defense . I understand that. 5 LDC [MR . CONNELL]: Great . I'l l move on then . 6 MJ [Col PARRELLA]: Yes. 7 LDC [MR. CONNELL]: I mention that only because you 8 incorporated that idea into one of you r questions yesterday, 9 so I just wanted to make the po i nt that a lot of people market 10 their CIA experience on 12 13 14 Now, that br ings us to this alte r native pr ocedu r e , because you asked a quest i on of the government yesterday about 15 16 17 18 19 20 21 22 But there was a question that arose about couldn't you -- or I thought you could order interviews , and I briefed 23 that quest i on extensively . 22066 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 What the government -- even i n this idea of we can't 13 investigate anybody ; we can only rely on the discovery which 14 was given to us . 15 where we're work i ng from a set of documents wh i ch were never 16 intended to be comp l ete and are not guaranteed to be accurate 17 as the universe of witnesses that we have to work from . That creates this mock-tr i al-like universe 18 19 20 21 22 23 22067 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // Now , moving on to my f i fth point, which i s 15 Judge Pohl's knowledge of the impact that hi s -- not just the 16 impact of Protective Order #4 , but his knowl edge of the 22068 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 MJ [Col PARRELLA ] : Wh i le we are talk i ng about Mr . Fi tzsimmons 19 LDC [MR. CONNELL]: Yes, sir. 20 MJ [Col PARRELLA]: what's your understanding of the LDC [MR . CONNELL ] : So we actua l ly have a spec i fic answe r 21 22 23 MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22069 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 MJ [Col PARRELLA]: Okay. 7 LDC [ MR. CONNELL ] : Yes. Thank you. But the point here is that it's 8 an example of how Judge Pohl carefully modified the pr otective 9 order to protect the government interests in RDI 10 information -- in fact, mo r e effectively I think i n Pr otective 11 Order #4 than the government did itse l f 12 But at the same time Judge Pohl had deta i led 13 know l edge of how tho s e r estr i ct i ons would interfere with 14 defense investigation , and because we were talking in such 15 deta i l about this crit i ca l point. 16 Now , the s i xth point of seven that I want to make is 17 the substantive rest r ictions . 18 about logisti c al problem s earlie r with the s e -- under thi s 19 program, this protocol, but what we di d not ta l k about i s the 20 substantive restrictions, because Judge Poh l 's pro t ocol for 21 wi tnesses who fa l l unde r Because we talked a l i tt l e bit in addition to 22 gi ving essent i al l y the government cont r ol over the means of 23 the i nte r vi ew , a l so sets out r estr i ct i ons on what we can ask MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22070 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 them, crit i ca l restrictions, restr i ct i ons that are ver 2 3 4 In fact , it's already come up , and the interviews and 5 the dec l arations r egarding those interviews demonstrate the 6 impact that those substantive restrictions have on defense 7 investigat i on. 8 Fo r example, the government told us ea r l i er that 9 10 11 12 13 But i n i nvest i gation we we r e trying to f i gure that 14 out , because befo r e , obvious l y , the government had started 15 saying no, we were based on bad informat i on, and the -- the 16 17 18 19 But the witness had never seen i t, but he denied the 20 substance of i t. 21 And we were just trying to get -- accord i ng trying to get to the bottom of this. Like 22 does th i s mean that we need to seek fu r ther Brady mater i al 23 because the CIA i s pr ovid i ng fa l se mater i al to the government ? MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22071 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 Is this a government mi stake? 2 us? Is this the wit ness lying to 3 But we cou l dn't eve n show him the document to figure 4 that out, and eventual l y -- and the decla r at i on i s ve r y c lear 5 on this -- eventual l y we just gave up on the area . 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 22072 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 And most importantly , he couldn't use th is for 3 netwo r ki ng , he couldn't ask this fo r add i tiona l wi tnesses , 4 because the question in an interview is always we l l , who e ls e 5 shou l d I talk to about th i s? 6 next people that they think we should ta lk to. And people pass us on to the Peop l e wonder 7 why this is such an iterative process and it's because you 8 talk to the pe r son , you build a r e l at i onship with them , they 9 put you in contact with their friends , colleagues , et cetera. 10 In fact, had to 11 12 13 14 15 16 17 18 19 20 Now, the seventh of -- the seventh po i nt that I want 21 to make is that i n October of 2017, when we first raised this 22 issue, and throughout the winter and throughout the spr i ng , we 23 talked about -- because remember the al Baluch i team adopted MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22073 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 these -- adopted limitations in January afte r the invocation 2 of nationa l l i mitat i on national secu r i ty pr i vi l ege. Th e -- we are no longer in vest igat i ng the CIA . 3 4 are acting s tri ct ly under Pr otect i ve Or de r #4. 5 order of the court; we fo l low it. 6 That' s an But what that means is that two th i ngs are happen i ng. 7 Number one, our pre j ud i c e is getting much worse . 8 are getting cold . 9 off. 10 We Our leads Our ab i lity to wo rk wi th people is fall i ng Peop l e are finding other i nvest i gative priorit i es . And we're just not making any progress. 11 12 13 14 15 16 17 But the people that we wo uld have contacted between 18 Janua r y and now -- and I defe r to no one in our di lig ence and 19 investigat i on, no longe r -- do not ex i st, because we didn't 20 contact anybody who fa l ls under a ser i es of evolv i ng and 21 sometimes contradictory proh i bitions. 22 prove prejudice i s dec l in i ng at the same time as our prejudice But our ab i lity to 23 is increas i ng . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22074 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // So there was a question of, you know, what court 1 2 shou l d this be in , and no w is the time to reso l ve th i s i ssue. 3 And i f the government thinks that i t has appel l ate remedies, 4 now i s the time to pursue them , because our appel l ate remedies 5 X number of years from now are not go i ng to sufficiently 6 captu r e our prob l em, because we wi l l no l onger be ab l e to 7 prove prejudice after January of 2018, because we are no 8 longe r i nvest i gating the CIA . The situat i on is getting worse, but ou r reco r d is 9 10 gett i ng worse at the same time, and there is noth i ng that we 11 can do about i t. 12 Order #4. 13 14 That's j ust another impact of Protect i ve Thank you. MJ [Col PARRELLA ] : And no attempts under the pr otocol established in Protect i ve Order #4 to investigate the CIA? 15 LDC [ MR. CONNELL ] : No attempts, s i r? 16 MJ [Col PARRELLA ] : Am I correctly summariz i ng what you're 17 saying , is that -- I mean , Protect i ve Order #4 doesn't say you 18 can't investigate , right? 19 through the protoco l s establ i shed i n Protective Order #4. It just simply says you have to go 20 LDC [MR. CONNELL]: And we have on six occasions, sir. 21 MJ [Col PARRELLA ] : Okay. That's what I just wanted to 22 c l ar i fy . 23 LDC [ MR . CONNELL ] : Yes, sir . But what I'm saying is that MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22075 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 we are fol l owi ng it, r i ght? There are two main pi eces to 2 Protect iv e Order #1 [sic] , and I'm drawing a distinction 3 between the word "investigate" and the word "interview . " 4 There is an interview pro tocol , highly re s tricted both i n 5 substance and in logistics. [Col PARRELLA]: 6 MJ 7 LDC [ MR. CONNELL ] : I got it. And we have fo l lowed that on six 8 separate occasions . That is different from investigation . 9 The i nvest i gation includes interviewing , but it's a much 10 broader framework than simply talk i ng to a sma l l number of 11 peop l e. 12 MJ 13 14 [Col PARRELLA ] : Al l r i ght. I unde r stand that. I just wanted to clarify. LDC [ MR . CONNELL ] : Thank you, sir . I just don't want to 15 leave any -- i f the quest i on is have we somehow been 16 nond i ligent in not pursuing the fe w options that were 17 avai l ab le to us , we have pursued them with gre at gusto and 18 have s poken to the prosec ution on many occasions, have worked 19 20 You kno w, we have been ext r ao r di narily di ligent in 21 22 pu r suing the few r emaining investigat iv e options which remain 23 to us. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22076 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 MJ [Col PARRELLA]: I understand. 2 LDC [MR. CONNELL]: Thank you, sir. 3 MJ [Col PARRELLA]: Thank you. 4 LDC [MR. NEVIN]: 5 MJ [Col PARRELLA]: Ms . Bormann? 6 LDC [MS. BORMANN]: Nothing from us, Judge. 7 MJ [Col PARRELLA ] : Mr. Harr i ngton? 8 LDC [MR . HARRINGTON ] : 9 MJ [Col PARRELLA]: No additional argument , Your Honor . 10 LDC [MR. RUIZ ] : 11 MJ [Col PARRELLA]: 12 TC [MR. GROHARING]: 13 Mr . Nevin? Nothing further, Judge . Mr . Ruiz? No addit i onal argument. Tr i al counsel? Just a couple po i nts, Your Honor. The first point is the defense complained about the 14 logistics of the interviews i n question . 15 yesterday, but I will make it again. 16 l i mitat i ons there were placed upon them by the interviewees , 17 and they certain ly could have brought photographs , they could 18 have brought whatever mate r ial they -- asked us to prov i de , 19 whatever materia l they wanted to to have in front of a person 20 to talk through on the telephone. 21 22 I made that point Whatever logistics That may not be i deal, but there was nothing that prevented that. The record is ful l of the e-mail 23 communicat i ons back and forth between counsel where we offered MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22077 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 to do this and, i n fact, did do it at counsel's request. LDC [MR. CONNELL]: Your Honor, objection to proffer in 3 that al l my arguments were based on evidence that we put 4 before the mi l ita r y commission and not simply desc r iptions . 5 say that in part because characterizations l ike this are 6 especia l ly difficult proffers, because one person 7 characterizes something in one way; the other attorney 8 characte r izes it in a different way. It's a l ittle bit di fferent from a factual 9 10 representation I did X -- you know, I put the envelope i n the 11 mailbox. 12 TC [MR. GROHARING]: 13 MJ [Col PARRELLA]: 14 15 16 17 I This is argument . Judge, the e-mails Okay, the objection is overruled . Go ahead and proceed , Mr . Groharing . TC [MR. GROHARING]: The e-mails are on the record, Judge. I will j ust rely on those . They speak for themse lv es. Briefly on the individuals the defense mentioned. 18 Again , the fo lks that we a re ta lk ing about a re not those that 19 are writing books or post i ng their affil i at i on with the CIA 20 ROI program on social med i a. 21 protect are the i nd iv idua l s whose association with the program The people we are trying to 22 are sti l l classified, remain class i fied . 23 Gl enn Ca r le is -- you know, to the extent he's MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22078 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 wi ll i ng to ta l k to the defense, to the extent the defense 2 wants to talk about ROI matters , they could st i ll fo l low the 3 protoco l and fac i litate that conversation. There is nothing 4 that would prevent that. 5 faci l itate that as quickly as he's available. And if he's wi l ling, we could 6 I would note that the other two examp l es that 7 Mr. Connell ment i oned, Gina Haspel and James Mi tchell, both of 8 those individuals decl i ned defense r equests to be interviewed . 9 So today as we stand here , I st i ll don't see -- 10 there's st i ll no one in the record that the defense has, that 11 had contact wi th Mr . Al i, whose assoc i at i on in the CIA ROI 12 program is class i fied that they've established is willing to 13 talk to the defense . 14 so by operation of the protocol . 15 the record other than cla i ms of their investigator. 16 And they have been prevented from doing There i s simply nothing i n And I respectful l y suggest that those are not 17 individuals that actua l ly had contact with Mr . Al i . 18 we r e , again, l et us know who they a r e , we are happy to 19 faci l itate that i nterv i ew consistent with Protoco l #4. 20 don't want to get in the way of that. 21 If they We All we are trying to do is protect the identity of 22 CIA off i cers i n a way that stil l a l lows the defense to seek 23 information, but doesn't disclose that information. MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22079 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // So those are the on l y points I wan ted to make. 1 I 2 think everyth i ng has been adequate l y covered extensively on 3 unclass i fied argument , but s ubj ect to your qu est ions , 4 Your Honor , that' s all I have. 5 MJ 6 7 ADC [MS. RADOSTITZ]: 8 MJ [Col PARRELLA ] : 9 ADC [MS . RADOSTITZ]: Good afternoon, You r Hono r . Good afte r noon . It fee l s so unfair that I have to go 10 last. 11 we have to get ready for. 12 I'm not go i ng to rush too much through it, but I wi l l try to 13 be economical . 14 15 It's, you know, past 3:30 and we all have a f l ight that Bu t this is a n importa nt mot i on , so You had asked that we i dentify the class i ficat i on le ve l , and pretty much everything that I'm going to talk about 16 17 18 19 20 21 22 So I used to be a journal i st. And one of the things that our professo r s in the journal i sm program told us is that 23 you should show, not tell . And so I heard Mr. Groharing say MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22080 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 toda y s omething I have heard him say a number of times before 2 of , "if you don't have it , just ask us." 3 So I want to talk about the "just ask us" that happened in th i s case. 4 5 6 not go i ng to go into all the pe r mutations of 7 it. 8 there was a ca r veout fo r certain peop l e that we r e publicly 9 acknowledged as partic i pating in it, such as Dr. Mitche l l. But what I wil l say i s that one aspect of it was that 10 And so i n February we had a hearing, and 11 Mr. Gr ohar i ng sa i d to the cou r t -- you know , if there are 12 other peop l e -- these a r e the e i ght peop l e we have identif i ed. 13 We've put them in a footnote in our propo s ed protect i ve order ; 14 and i f there's other peop l e , the defense should just ask about 15 them. 16 17 So that was i n February or ear l y March. Later in that month President Trump nominated Gina Haspel as Directo r of the CIA 18 on ou r team , our cl i ent s ay s, 19 20 21 So we took that i nfo r mation, we obviously di d some 22 media searches, and we saw that the r e is qu i te a bit of media 23 information saying that she was involved in black sites . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22081 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 So we looked at the informat i on that had been 4 provided and we saw that it was important to be real l y carefu l 5 about how we asked this. 6 of ou r DSO that did not in any way disclose any c l assif i ed 7 information. 8 Haspel go i nto footnote numbe r 1? 9 We crafted an e - mail with the he l p But what we asked was, essent i al l y: Does Gina And we sent that e-mai l on the 2nd of April -- I'm 10 sorry, on the 16th of Apr i l. Li eutenant Co l onel Poteet sent 11 the e-mail to tr i al counsel. We di dn't get any response. 12 In May the government Gina Haspel is not on 13 14 l i st , but there i s sti l l no aff i rmative response that she 15 would be added to the l ist. 16 And this is important because we are mov i ng towards a 17 hear i ng before the Senate Se l ect Comm i ttee on Intell i gence , 18 and our cl i ent would l i ke to get this informat i on before the 19 Senate committee. 20 information wi th the Senate staff unless it's unc l assif i ed or 21 we are given permission to do it. 22 But we know that we cannot share classified Because we haven't been able to get information as to 23 whether it's classified or not, we moved forward fil i ng a MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22082 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // and we request perm i ss i on to 1 2 prov i de informat i on to t he Sen ate Select Committee that Gina 3 Ha s pe l was in Sit e Blu e or 4 5 6 7 8 9 10 11 12 13 Ms. Ha s pel te s tifie s a t the Senate Se l ect Committee 14 on Inte l ligence on the 9t h of May . 15 ruling as to wh ether we can provide that informat i on; we don't 16 get that ruling unt i l l ong after the hearing is over . 17 that's so rt of l i ke a normal way. 18 19 We stil l don't have a So And l ike Mr . Mont r oss was describing it, I pr act i ced in Te xas, and we never co uld get di scovery from -- I thought 20 we could never get discovery in Te xas, but I have to say t ha t 21 this is even worse than Texas, which i s rare for me to say 22 that about anyth i ng . 23 So now I want to get to sort of the substance of the MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22083 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 argument. For more than a year now, we have been ta l king 2 about the change in class i ficat i on gu i dance . So we heard 3 test i mony -- or a r gument yesterday about the fact that 4 starting in 2013 we were told we can go talk to anybody about 5 anything at any l ocation and that we were free r e i gn . 6 lot of people did. 7 lot of that. iterative pr ocess, that there was a change i n the 10 c l assif i cation guidance. 11 524LL And Judge Pohl lays out very wel l in a l l of those changes. We learned what the parameters of those changes we r e, 12 13 and aga i n , they were iterative . 14 that . 15 Mr. Connell's team di d a So then we ta l ked -- we learned through a process , an 8 9 Our team did. And a They changed f r om this to But again that's a l l l aid out i n 524LL . We a l so have had a l ot of litigation about how that 16 impacts the defense , how i t i mpacts Mr. Mohammad's team's 17 abil i ty to investigate , hi s Sixth Amendment r ight to counsel , 18 the right of c oun s e l to do -- or the i mp l ication to the 19 obligat i on of counsel to do the investigation. 20 21 Bu t what has not been discussed very much in any of this litigation i s why. We talked about that there was a 22 change i n classification guidance , but we have never lea r ned 23 why there was a change . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22084 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 So my dad was a physic i st. And one of the things 2 that he to l d me all the t i me was -- we wou ld talk about 3 science with a capital S . 4 co r relation i s not causat i on . 5 And what he would say was And so I cannot say as we stand here today that the 6 fact that Gina Haspel became the Associate Directo r of the CIA 7 and had more author i ty within the CIA, that that caused 8 changes to the c l assif i cation guidance. 9 that we now have ev i dence that's been provided by the But what I can say is 10 government that backs up everything that our c l ient told us, 11 except one smal 1 _piece . 12 13 14 15 16 17 18 19 20 21 22 23 22085 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RE LEAS E lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 22086 UNCLASSIFIED//FOR PUBLIC RE LEAS E UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 2 3 4 5 Yeste r day we heard a numbe r of different times the 6 government assert that they're not trying to cover up the 7 to r tu r e, that they're happy to talk about the torture, and 8 that we have everything that we need to kno w about the 9 to r tu r e . But the one thing that they' r e not wi ll i ng to ta l k 10 11 12 13 14 15 16 17 18 19 20 21 22 23 22087 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 So what incentive would she have to change the 2 c l assif ica tion guidance? By do i ng so , it makes it impossible 3 fo r us to find out more about he r i nvolvement . It makes it 4 imp oss ible to find out ot her people who saw her there. 5 makes it impossible for peop l e at Guantanamo, who may have 6 seen her when she was here as chief of base, to identify he r 7 and talk about it. 8 that we can't go ta lk to those people . It Because the class i ficat i on gu i dance means 9 10 11 12 13 14 15 And so aga i n, our evidence here is that there i s a 16 change , a signif i cant change , a sea change i n the 17 c l assif i cation guidance once Gina Haspel becomes i n a position 18 of power within the CIA. 19 cannot tel l you for sure that she i s who requested that change And we don 't know for sure , a nd we 20 in the classification guidance. 21 And that brings us to our motion for witnesses . The 22 government's pos i tion i s kind of odd i n the ir response to our 23 supp l ement , which is whe re we lay out al l the connections MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22088 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 between Director Haspe l and the torture program. 2 basical l y say you can't prove UI because you have no ev i dence , 3 and you can't have witnesses because you haven't proved some 4 evidence of UI. 5 6 And they And that can't be r ight . If we were in any other court and I wanted to be able to prove something that I had to show some evidence of, I 7 would go talk to the person I wanted to get the information 8 from and I would interview them . 9 c l erk of court for a subpoena and then bring them to court . 10 11 can't do any of those things. And then I would ask the I can't even approach her. If I want to ask for an interview, wh i ch the defense 12 has already done and she has declined, I can't do anyth i ng 13 about that ; she's decl i ned. 14 because I don't have the power to and we have to ask the 15 government for perm i ss i on to br i ng her to court, and she 16 doesn't come here. 17 I I can't br ing her to cou r t The other point I want to make i s that we don't know 18 if she is the person who made that decision , and we don't know 19 if that person is protect i ng her or protect i ng others. 20 don't know who that person is. 21 We There is no ev i dence in the record as to whether she i s the or i ginal class i ficat i on 22 autho r ity or not . 23 Mr. Swann has sa i d i n argument that she i s not , but MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22089 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 there is no evidence. There's no dec l aration. 2 wi tness saying that she is not. There's no Al l we have is her testimony 3 under oath before the Senate Se l ect Comm i ttee on Intell i gence 4 in which she says that s he is ul timately r espon s ible for a l l 5 c l assif i cation decisions of the CIA as Dir ector, because at 6 that time she was Interim Director. 7 And so the ev i dence -- and we've attached her 8 test i mony as an exh i bit to ou r pleadings . The ev i dence before 9 the court i s that she i s the class i ficat i on authority. As I 10 argued, and I'm not go i ng to go into i t aga i n -- we argued in 11 open session -- i t kind of doesn't matter, because she i s 12 ul timately responsible. If I may just have a moment , You r Hono r. 13 14 MJ [Col PARRELLA ] : 15 ADC [ MS. RADOSTITZ]: You may . So our argument is we need 16 wi tnesses. 17 the or iginal classification author i ty and the person who made 18 the dec i sion to circumscr i be defense i nvest i gation and change 19 our abi l ity to do this case, we need those witness. We need Di rector Haspe l . 20 we need to know why. If it isn't her that is Because We need to know the answer to the 21 question of not j ust that the c l assif i cation guidance changed, 22 but why . 23 Subject to you r questions , Your Honor . MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22090 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE lffl!fJ,•,•fi!f"t >' lf11" lf ff/2'.VJ&.Pe.- fl.'9 fJMfitli!ft fl f // f8/9i!f // 1 MJ [Col PARRELLA ] : 2 3 4 No quest i ons. Thank you. Ms. Bormann? LDC [ MS . BORMANN ] : Judge , we adopt Ms. Radost i tz's very able argument . 5 MJ [Col PARRELLA ] : 6 LDC 7 MJ [Col PARRELLA ] : Mr. Connell? 8 LDC [ MR . CONNELL ] : Nothing further, 9 MJ [Col PARRELLA]: Mr . Ruiz? [ MR. HARRINGTON]: 10 LDC 11 MJ [Col PARRELLA]: 12 TC 13 MJ [Col PARRELLA ] : 14 TC 15 MJ [Col PARRELLA ] : [ MR. RUIZ ] : [MR. SWANN ] : [MR . SWANN ] : 16 pa r t i es? 17 c l osed session? 18 19 Mr . Ha r r i ngton? No furthe r a r gument, Judge. sir . Nothing further. Tr i al Counsel. Subject to your questions, You r Hono r . I have none . You have none . Thank you. Thank you . Okay. Anything from the Any other issues or conce r ns before we complete this There being none , thi s co mmis s ion is i n rece ss. [The R.M.C. 806 session recessed at 1607, 16 November 2018.] 20 21 22 23 MW,.5 •5 f8fJ4t / tHMEtfff.!'.\iff8J4 fJ!IS fJMfJ88tlfPf , , ,s, eer , , 22091 UNCLASSIFIED//FOR PUBLIC RELEASE