REL EASE [The Commission was oa11ad to order at 0903. 1d June sn1s.] NJ sa1Ied to order. A11 parties are again present. is absent and. as stated before. this eonsider HE 092. Tria1 Counsel. it's your motion. ATC BALTESIL Thank you. Your Honor. reeord. present for the prosecution today. Hr. Brigadier Generai Hark Hartins. Justin Sher. This oTosed session of the oommission For the Joanna Baites. is The asoused is a oTosed session to Commander Lookhart. Hajor Chris Huge. Sergeant and Hr. from the FBI -- she's an attorney with the FBI -- Swann who's Triai Counsel on the BT11 team. HJ has got the appropriate oiearanees? ATC That's oorreot. HJ FCHLI: And for the defense. Hr. Hammen. Captain Jaotson_ who e1se Daneis. LDC Hajor Daneis. a paraTegal. Sergeant and Captain Erie '.~Iinkofsky_ HJ And they a11 have appropriate -nfiE4$i$FF-nHE- 2453 REL EASE do we have here? Tesh Bob And everybody on your side of the tabie I we have Hajor LABS I IE DHFUR PU BLIC RELEASE clearances? DDE res. HJ Okay. Thanh yeu. LDC Tes. HJ Hs. Ba1tas- EP And I spoke ta members sf yeur staff ear1ier that we were geing te address whether er net the guards in the eeurt had the apprepriate s1earanses. I'm net sure if ynu wanted tn address it an the regard or net- HJ There is na need fer the guards. se we den't need e1earanses. They sheuld just -- we den't need you. right new- I mean. I don't see any need fer the guards at aI1. sa we dan't need ta gs thraugh whether they have slearanees er net. ATE Dkay- Thanh yeu- HJ I wsu1d nete fer the reesrd. though. as they 1eave. is that is was a1ways my understanding that because everything in here is gs ahead and 1eave. guys -- everything in here is petentia11y e1assified, that a11 the guards had s1earanses in case there was slassified infarmatian discussed in an epen sessien. ATE I he1ieve the guards de have a certain 1eve1 sf e1earanee; whether er not they have the 2469 MC LASE I IE DHFUH PU BLIC RELEASE ..RELEASE .r.r sempartment that we're geing to he that's a discrete issue tedey_ And it's mere eut ef an abundance sf eeutien. If yeu prefer them td be here. we sen give them an edmsnishment. HJ I understand. I just den't see any need fer their presence anyway. so let's make the issue gs away. LDC I Knew Ee1ene1 Begdan thinks that we are p1anning en assassinating pespie. but we are rea11y net. HJ I trust ysu. Hr. Kammen. Gs ahead. LDC There is Tedy et the very heeh ef the reem. ATE And that is -- she's from the FBI. she's en etterney with the FBI. HJ A11 right- Ge ahead. ATE Thank yeu. Teur Hener. Teur Hsner. as we briefed in the AE 92 that we fiied with the eemmissign and with the defense and eise in the ex parte presentetien AE 91. I am geing ts be brief. I think it is clear that the re1ief that we are requesting The metien was filed in bath the Qfii and the 24?fl PUBLIC RELEASE UHCLASSIFIEDIFFDH PLJELLIE RELEASE Hashiri ease heoause it potentiaily the aooused in both eases and. therefore, we wanted a reso1ution from this oommissioh since the mi1itarr judge is the same. obviously. in SE11 and Hashiri. es you are aware from our papers. there was simi1ar 1itigation in the District Court for the District of Co1umoia regarding the haoeas proceedings. because there is ourrentiy a oase management order So in that proceeding. the government aiso requested So in that ease. the government requested the reasons for the How. government's request are expiained in the ex parte Filing in HE 91 end in the declaration that we fi1ed signed by Leon Fanetts who at the time was the director of the Eentrai Inte11igehse Agency. And as expiained in AE 32. the speeifio nature of the request. the reasons why. and the nationa1 security -ff--f5f5Ef--fifiL HELEFASE RELEASE reasans are extremely sensitive and that is why we presided general ndtice te the defense but we presided mere specific Hdweuer. reascning an that ta taur Hcner. all df the legal justificatian. the feundatian that we set farth in the pleading we filed with you. obviously we filed with the defense as well. and I just want the defense ta understand that we have net made any additianal requests in the ex parte filing that we have net made in the filing that the defense has a it's the justificatidn and the natidnal cepy cf: security reasans why the United States Gauernment Ms. Ealtes. you had said earlier that there was -- in the habeas litigatien, there was at least ene District Ceurt erder addressing this issue that yeu asked td he -- are these still eut there er -- ATE Yeah. In the habeas case. there are several case management arders that gaeern all the haheas cases. because there are different District Cdurt judges. Se 24?2 PLJELLIC RELEASE PLJELLIE RELEASE 1 there is a genera1 kind df ease management arder_ 2 3 4 5 7 Se they went ta the chief judge asked 3 far. again. a flDfiED1id3tEfl ruling there are mu1tip1e 9 District Eeurt judges. 10 Se that ru1ing has been issued and that is what we 11 attached td the fi1ing in AE 92. is the judge's ruiing in that Iitigstien NJ ED have in this case. ydu as the prapdnent df this 21 ATE Yes. E2 HJ at this aetidn: 23 ff--f5f5Ef--fifi" 24?3 PLJELLIE RELEASE PLJELLIE RELEASE I ISTSC1 if we are all at the same place- I the end df the day. ATE HJ that's eerreet_ and are [Hs. That's eerreet. I think that. as you peinted eut in eur 5D5{h]. Mew. since we eriginally filed the nutiee, thflugh. the ef bath the defense in this ease and in the Bill case have There is language in the supplement filed by the defense in this case that it wduld be important fer the and se I think that the geuernment is new in a uesitien that 24?4 HELEFASE UHCLASSIFIEDIFFDH PLJELLIE RELEASE we ere with dissevery request Se whether er net. you knew. this eemmissidn felt thet there was jurisdietien. I think it is ripe because st this peint the defense has seught I think it is sduerely hefere Your Hener at this peint. 9 HJ De you eppese the defense request 11 ATE Yes. Ves. we weuid. And maybe I 12 sheuid just jump straight inte the heart ef the argument here. The gevernment dees net he1ieve 13 The government uhderstends its diseevery 19 ebiigstiens. I'm net geing te heisher the pdint. I knew yeu 20 have heard us. in erei argument and in written metiens. 21 set what we understand what eur diseevery ehligstiens 22 are. But I de think it is td kind ef distinguish 23 between r.r 24?5 HELEFASE PLJELLIE RELEASE diseevery ehligatiens are- I knew that the defense characterizes this and as yeu are aware. the geuernment has erevided many hundreds ef reperts that detaii the treatment ef while he was in ene er mere Hr. Hashiri in CIA eustedy everseas ieeatiens. These have been summarized and the diseeverebie 1nfermatien eentained in these reperts has seen presided te the defense in this case. Se anything sheet his treatment whiie he was in EIA eustedy has been presided te In additien, the defense. te the extent that the has any phetes in their pessessien ef Hr. Hashiri while he was in EIA eustedy. these wili be erevided te the defense. The defense aise has numereus gevernment deeumente regarding DLE reperts er epiniens en the entire eregram_ They have seught rs rr HELEFASE PLJELLIE RELEASE 'ff--f5f5Ef--nfi" assess to any onredaoted portions that go to anything regarding Hr. Hashiri_ and to the extent that any of the unredaoted portions of those doouments that discuss the treatment. the Iegaiity of the treatment or Hr. Hashiri himseif, those wi11 he oroyided to the defense as we11. So there is a 1ot of information that the defense has a1raady, ar wi11 resaiya yary shartly, 11 -is oomo1ete1y oonsistent and standard with any other 12 case that wou1d he going on. And I know this is a oapita1 13 oase so I don't want to make generaiizations or minimize this 14 oase or out any re1atiye oomparison. but the fact is this is a court, this is a commission. 24?? HELEFASE UHCLASSIFIEDIFFDH RELEASE they have of the disooyeraoie information that could possioiy be reieyant and materiai in this case, eyen for mitigation- And we understand that is a big part of the reason why they want this information. I think it's -- again. their request at this point so we have to Took at what the discovery standards wouid be for that. And H.H.C. discusses reieyance in the context of what is materiai. what is materiai to the preparation of the defense. and United States Tunis is the case that is cited aetuaiiy in the manual for what is the meaning of materiai to the preparation of the defense- And tunis was the case that actualiy discussed what it means in a classified setting if the defense is seeking access to something ciassified, which they would be here. and the Tunis case I think is important because it taihs about you can't have just a showing of theoretioai it has to rise to reieyanoe. something oan't just he heipfui. the where it wouid potentialiy have a tendency to make 24?-3 PUBLIC RELEASE PLJELLIE RELEASE the exiatenoe of any faot that ia oonaequenoe to the determination of the action more or 1es5 probable. and again- what the government has provided to the provide to the defense defenae or wi11 How. again. the government's oontention here it is not diaooverah1e. LDC Can you say that again? I didn't hear it. the 1aat aentenoe. ATE The government's contention is that it ie not and just going back for a minute to the Dietriot Court litigation. when the Diatriot Court judge approved, in the habeae context- but that wou1d not he dieeoverah1e -- that was not if-??f5Ef-HHL HELEFASE PLJELLIE RELEASE Mew. that mean that at 1eter time if the judge in that case determines fer eeme that it is d1etevereh1e. that it een't he provided to the defenseAnd the etteehment tn the geuernment'e euhmieeten 19 here did eetue1]y heue eepy ef Judge Su11iuen'e erder. 2430 RELEASE PLJELLIE RELEASE NJ Df eeurse- we have twe issues. I mean. you seem te he -- ATE [Hs. Right. |iJ and then whether er he- -5- cliseeveretlie. ATE Neil, and I'm serry. I didn't mean te muddie these twe issues. I guess what I wanted te ge ta was we heiieve 1iHe the first intentien is we een't believe . cliseeverahie ether than what we've already presided. se we 2431 RELEASE PLJELLIE RELEASE ID Dur position in this ease is aiso that it is not ID disooyerabie. we aiready provided the information. reports 11 anything eise that we heiieye are dissoyeraoie to the defense. 12 13 So if you decide that at some ooint in the case that 14 it is disooyeraoie. it be ayai1ah1e to he oroyided to the 15 defense. but that is not a position that we are eertainiy 15 taking at this oointthat point. 13 ATE Correct- 19 HJ Df oourse. there's going to he a EU discovery request for it 21 ATE Correct. 22 HJ and then you respond. and we 23 wi11 go from there. I mean- the oniy issue before me is if -- 2432 RELEASE RELEASE out at the end of the day. I guess it's a oart--and-horse issue. If it is nondisooyerahle, then there shou1d he no issue here. but sinoe it is ootentiafiy disooyerah1e- 1 2 3 4 5 ATE Right. Again. I think again because 5 of the posture that we are in now. we Fiied the notice June 7 22. 2fl12. Since then. the defense has ohviousiy fiied their 3 opposition and their request for significant amount of 9 information aooess- So honestly. not to make this too 1D simoiistie. out I think the actual issue before you today is 11 is it dissoueraoie. and. it it is. has what we a1ready 12 provided. does that satisfy that ohiigation? And seoond. do 14 Now. if you they are entit1ed_ 15 then we wouid prefer to hear that sooner rather 1E 17 than iater But whether something is disooyerahie 13 or not. the goyernment's contention is anything that is 19 possibly disooyeraoie ED and that is something you son 21 make a determination at a ater date 22 And in addition. I think. is -- is tietaiietl in the 23 submission that we provided- 2433 PUBLIC RELEASE PLJELLIE RELEASE 1 2 3 4 And she 1sst thing. and I think this is also s1ear 5 in eur papers. but just ts make sure we are net -- there is he 5 esnfusisn_ Dksy- Thank yeu. 15 Hr. Hammen. 17 LDC I guess since is the birthday 13 sf the Army, happy birthday" Yeur Honor- 19 HJ Thanh yen- ED DDE Fer the reesrd. we continue to ehjest 21 to Mr. Hashir1's shsense dur1ng this prsseeding. :2 HJ [ssL 2434 RELEASE PLJELLIE RELEASE Tcur Hensr and we wi11 inte And frank1y. this in 1itt1e mere setsii. Their reasens. I suspect. it we saw their dec1eraticn. are disingenucus. I think their reascns. if we saw their uec1araticn. wcu1d be prcyen ts he suhstantia11y untrue. I mean no disrespect ts the presecuters. I suspect they are operating under what they are being tc1d by ether agencies. but the ether agencies have a The CIA certain1y has a history cf mis1eading prcsecutcrs in re1ated cases. They have a history cf re1ating misleading judges in re1ated cases. and I think the pattern is ccntinuing. Let's leek at where we are because where we are. end based en the preseeuter's remarks this morning. I think they are quite significant. The presecuter and. 2435 RELEASE LABS I IE DHFUR PU BLIC RELEASE of course. it seems to he a moving target. every time you try to pin them down as to where we are on discovery, it's, well, it's complete. but not really. And of course. you know they are saying we want a trial schedule. we want a trial schedule. but, you know. discovery is not complete. Some day we will get photos: some day we will get additional reports- But what we have now. Your Honor. 1 will tell the commission. are a series of summaries that I believe that at an appropriate time we will demonstrate are false- That's very significant. The summaries are false. they are misleading. they are woefully inadequate for any meaningful presentation in a capital trial. They are absolutely inadequate. And this is part of the problem that we tried to alert you to a year ago or more. fit course. they are -- we can't -- you can't reconsider and we have this broke procedure where we ask for more discovery and maybe you will intuit that in ordering more discovery. but the summaries are false. Secondly. as of right now. the summaries are still not releasable to Hr. Hashiri. So we can't even discuss those summaries with him to get his perspective on whether on how false they are. how incomplete they are. how misleading they are, how sanitizing they are. So with respect. we are 2435 MC LASE I IE DHFUH PU BLIC RELEASE PLJELLIE RELEASE treuh1ed by the gesernment's desire ts ds e11 sf this in secret. ene ef the things that New. is psrtisulsriy treuhiing to us is they say. Frankie. Teur Hener -- so that's the everview. we dsn't he1ieve they have semeiied with the rules. I den't want te revisit the arguments we made yeeterdsy er the day hefsre yesterday regarding sert ef the netise. but there hasn't been any finding by the requisite. written findings by the semmissien thet weu1d sert sf trigger where we ere tedey- And es we read the ruies, hefere we get tn the piece where we are tedey. there sheuld hsue been finding -- we sheuid heve been iitigeting the wheie issue. They went ts de e11 this in the shsense sf finding sf and ts their -- HELEFASE PLJELLIE RELEASE HJ Teu'ye Test me there. ef whet. ts whet? fif this evidence. LDC HJ Teu used the term edmissihi1ity. ?eu'ye 1est me here. LDC Admissibility at tr'ia1. the want is. yeu knew. essentisiiy we sheuld he haying tn fight ever edmissihi1ity I think. end as I reed the ru1e. Se I think that they have sert sf -- And te their credit. they are being NJ But the issue es it is hefere this en this ene. we are simply talking 2433 HELEJEESE PLJELLIE RELEASE 1t. LDC I understand. but I think befnre -- yum firat 1it1gate Edm1SSib11ity. HJ And admi55ibi1ity is what? DUE If we a5sume -- HJ 11 LDC HG. that's 3 fa15e choice, Tour 15 HJ Dhay_ we be11eve it -- LDC 17 13 15 admissible. 19 HJ Dkay_ ED LDC If it 15 adm1551b1e. than the 21 questinn 15 22 23 'ff--?5f5Ef-wHL- 2433 PLJELLIE RELEASE PLJELLIE RELEASE said 6 HJ Seek te my eueetieh. though, ie when you 7 said edmieeibi1ity LDC [He. tee. 9 HJ 1et'e ge -- I w111 take your 1D premise. it is edmieeihie. ekey. 11 12 13 LDC Are yeu making that findingLDC Okay. Heli, see, that'e the preb1em- 15 NJ He. that ie net the prehiem- I am geihg 17 te teil you what the prebiem ie. if I can finish- Dpereting 13 that it ie edmieeihie. then I would ask yeu. 20 Ten said that's a false 21 eheiee. Hew -- what are the ether eptiene? 22 LDC Neil. as I understand yuur queetien. 245fl RELEASE L.l LABS I I PLJ ELL HE HJ LDC Uhey. I think there are middle eptiens. what we weuld de 13 three thingsBees it make eny difference that -- end 2451 PUBLIC RELEASE PLJELLIE RELEASE current me if I'm wrong here. LDC [nn. mes. HJ Dkay_ DUE ?eah, yeah. HJ Dhay. realize that queatimn was inartfuI1y formed. it 15 uhay. Dkay. S0 at 3 minimum- at a minimum. LDC Sure. Ab5n1ute1y. HJ Dkay. LDC HR. KAHHEM 2452 RELEASE LASSIFIEDIIFDH PLJELLIC RELEASE New, I guess in terms at the praeedure, if the first step ydu determine is sert of re1eeansy I'm gathering that yam have determined this evidence is relevant. the sort at DVETB11 I think yen aetua11y have ta determine at thing. HJ Are we talking er diseavery? LDC Hell HJ I mean. if you want me te appiy the standard. yau are asking far a higher LDC Certainiy we believe that it is diseeverab1e- We have been trying te get HJ what I'm saying is. that's a iewer standard. LDC Sure. HJ Dkay- and at this stage. at this stage -- understand. den't take any ef my questions as DUE I ddn't. HJ I determined they were disadverahle er net. Hy en1y guestien was. if it is net disceverahie, it 2453 PLJELLIC RELEASE PLJELLIE RELEASE 1 makes ne difference what I 2 Lee Right. 3 NJ If it is diseeveraeie. it dees make a 4 difference. 5 LDC tea. 5 HJ Se the gevernment's initiai pesitien is 7 it is net eiseeverabie. And then I there wi11 he a diseeuery request fer it. if there isn't ene aireaey 9 LDC Neil. there is. 1D HJ semehew we are geing te have te 11 iitigate this anyway. se -- but he that as it may. 12 LDC In any event. iet me just -- because 13 I may have iest my piece. 14 Tee knew. whether we are with eiseeuery. 15 whether we are deaiing with they are asking yen 1E te make this deeisien in a vacuum- They are net -- they are ashin yeu te make this deeisien witheut '#f--f5f5Ef--fiH' 2454 HELEFASE .PLJELLIC REL EASE And fina11y. cf cdurse. I just make this fer the reccrd because we are here. there has been nc specific prior that fai1ure is past us. HJ are you t31Hing abcut the written drder cicsing this proceeding? LDC we11. yes. and the written drders that needed HJ and understand. I anncunced it yesterday DDE ?eah. I understand ydu HJ and it has been pub1ished yet. LDC I understand. we feel that yeur annduncement was not specific endugh. but that's behind us. HJ He11. the drder is going ta icdk just Iihe that annduncement. sc if ydu dcn't think what I said draliy is speeifie endugh. ydu're gding td think the drder is. tdc: but I understand your pcsitidn new. Hr. hammen. LDC Thank you. New. turning cf back tc the merits. as I said. we dcn't have a1i the summaries- They that- And as I indicated and as dur 2455 PUBLIC RELEJISE L.l LABS I I PLJ ELL HE '#f--f5f5Ef--fiHL 1 p1ead1ng5 indicate. what we know from the summaries goea we11 2 beyond what we're publicly e1Iewed te acknewledge. Beyond 3 water beardihg. Haw, there is ennther facet te this that's --ff--f5f5Ef"TT' 2456 PUBLIC RELEASE PLJELLIE RELEASE important and I think is the rea1 reason oehind this: and I need to state this even though it may he in what you have been orosided. it may not he. But. you Know. some of what we are doing is for the historioai reoord. I wi11 a11ode to this in a few minutes. But 25 years from now. probab1y after I'm 1ong gone. perhaps maybe they wi11 hide it long enough untii after we are e11 iond done. somebody is going to iook at this. They are going to say what was the reai truth here. The reai truth here. 245? RELEASE L.l LABS I I PLJ ELL HE EAE ?5.52LDC I'm sorry? 2" E1 LDC That's current. 22 23 2453 RELEASE PLJELLIE RELEASE Dhay, I understand yeur pesitien. LDC [Hs. 9 1D 11 and. yen Knew. leek. I make ream Far the 12 pessihi1ity that we -- if we see a11 this. we might say. yeu 13 knew. this is the greatest thing since siieed bread.- 14 Because I can foresee you are shal-ting 15 yeur head. 15 NJ Ne. a11 I'm saying is. he. I just -- I 17 guess anything is pessihle in this 1ife, net se mush gd 13 ahead. I'm with yen. I understand what ydu are saying. ?au 19 den't knew what is there until yeu 1eeh at it- LDC Veah. I mean r.r 2453 HELEJEESE L.l LABS I I PLJ ELL HE Tee knew. the thet the Fee1 crime wee eemmitted in Aden. end eertein1y there 1e he queetteh that what was eemmitted in Aden wee very serious situation: whether it's crime end e11 thet ie ene ef the things this eeurt and ether eeurte w111 eert eut. But thet'e net the crime we are referrin te- 2500 PUBLIC RELEASE PLJELLIE RELEASE Se again. it is the secrecy that rea11y gives us pause. And as I sa1d. in th1s centest. whi1e I mean he disrespect te the preseeut1en. the history here. we just can't he immune te the histery here ef deceptien te -- by varying geuernmenta1 agencies. Certain1y te the extent the Department ef Justice in ether cases has been unwitting has unwitting1y misrepresented things te ceurts. they are perhaps at fault fer net deing due di1igence He knew what's happened with the CIA and we knew what's happened in ether such re1ated situatiens else with the FBI. Se that is where we are. and we need te make it 2501 HELEFASE PLJELLIC REL EASE clear that frem cur perspective again. given the 1eyeI cf secrecy and ene-sidedness te eli ef this, we just have te cenciude that what this is rea11y sheet is the geyernment's desire. the big geyernment"s desire. reaiiy te hide the truth. I mean, the fact we s11 -- the secret cf a11 cf this is the reasen we are here as eepesed te in a reai ceurt is because this is -- eersena11y_ This I sheu1d say. That is what this is a11 sheet. and at Teast fer the histeriesi they are net geing te admit it. but semehedy needs te say it- And I'm saying this next fer the histericai recerd. because. again. 25 years frem new peepie wili ieek at this and they really are geing te he ashing seme hard euestiens. They are certainiy geing te be asking. we11. was this Tawyer adequate fer the jch. and they wi11 prchab1y cenciude he wasn't. They are eertainiy gcing te be asking whether at the ether tshie behaved with the histerica1 yiger that their eredecessers did. And I'm struck by the difference. there After the Halmedy Hassacres in Hcrid war II, was a eemmissien_ And they were -- by eur standards. ff--f5f5Ef--fifih 2502 PUBLIC RELEJISE LABS I IE DHFUR PU BLIC RELEASE there are a whe1e Iet ef things wreng with it and many ef these peepie initia11y received death sentences. But there was an army effieer whe was invelved in that whe saw that they had been -- these German seidiars had been mistreated in ways that den't even eeme eiese te what has happened here. And rather than hide that truth and a11ew these peeple te he executed. that army effieer 1ed a eampaign te have the truth eeme eut. And when the truth same eut. peeple understand that that eemmissien had been painfuiiy tainted. That's the traditien that the army used te expect ef its effieers. And eertainiy that is unfertunate1y what this preseeutien is aheut. is hiding that truth. net eapesing it. Eimiiariy. the Department ef Justise iawyers used te he abeut hiding -- expeeing the rea1 truth aheut things the United States has dene. They want te try Hashiri. that's fine. He den't -- we wi11 fight that battle. But fight it en the in an atmesphere ef real truth, net hiding the truth. and. et eeurse. uitimateiy wi11 judge the decisions yeu make. Eefere yeu make this deeisien. at a minimum we weu1d ask that the gevernment be erdered te preside us with aI1 the phetes they say they are geing te preside. with ali 2503 MC LASE I IE DHFUH PU BLIC RELEASE PLJELLIE RELEASE the reperts they -- edeitienal reperts they say they are geing te preyide, with a11 the ether stuff they say they are geing te ereyide. Let's net ee this in seeret_ in EDGE They fiied this metien te -- yeu knew. whatever. that is what we weuid suggest hefere yeu make this deeisien. If yeu are geing te make this deeisien witheut these steps, we weuie eertsinly ask that, at a minimum. yeu fe11ew the erder ef Judge Emmet. Frankly. we weu1d iihe seme epeertunity te study that erder in semewhat mere eetaii te see if there are any impreyements we een make upen it. Thank yen- HJ Thank yeu. Hs. Ealtes. ATE Thank yeu. Veer Hener. I have te start eff by heth fer me and fer the rest ef my team that I 2504 HELEFLSE .REL EASE here -- represents -- I'm a presecuter with the Department ef Justice frem the Hatienal Security Diyisien and the Ceunterterrerism Secticn. I take my reseensibilities yery serieusly. heth frem and an ethical standpeint. as I knew the rest ef my team dees, including all ef my civilian cclleagues the Department cf Defense and the active duty cemeenents ef eur team. including General Martins frem the army. And I knew this is a clesed sessien and I'm sure that I might net have tc say this tc yeu- hut in the interest ef the histerical recerd that is geing te he created here that Hr. Kammen discussing. it weuld ee egregieus. I think. tc let the insults just gs by. we are ceming here in an adversarial setting fer a ruling frem the military judge. He haye net gene and dene anything in secret- In fact. the United States Geyernment prchaely cculd have dene this if they wanted tc. but they chase net te. and they chase te gc ecth hefcre a District Ceurt judge in charge cf the haheas cases and hefere the military judge in charge at the death penalty cases in 9:11 and Hashiri E2 23 And Hr- Hammen may say that he is net faulting the individual presecutcrs in this case, but I take his cemments 2505 REL EASE UHCLASSIFIEDIFFDH RELEASE ff-??f5Ef-wfik sheet the integrity ef the and the integrity ef the United States Geyernment and these representing it very serieusiy. we are net unwitting. I am weli aware ef the faets in this ease. I'm weii aware ef the natienal seeurity issues at stake- He haye these eut fer yeu in the es earte fi1ing, and I'm eenfident that there are ne reasens, ether than iegitimate natienal seeurity reasensUnited States Geyernment 1D and sheu1d yeu. in year eesitien as the 11 mater en this issue. fine that these reasens are Taehing and 12 that they are fer embarrassment er fer seme ether iegitimate 13 eureese. yeu eertain1y ee net have te give us the re1ief that 14 we are requesting. 15 HJ Hs. Eeltes. let me ask yeu a euestien. 15 fee has mentienee earlier 17 13 ATE Yes. HJ Dkay- 23 ATE I think that the eeneern is that we 2506 PLJELLIC RELEASE PLJELLIE RELEASE are a1ready a year inte this litigation in this ease. HJ I understand- ATE and far reasens eutiined in the HJ I understand. ATE Met related to any i11egitimate hatienai security reasens er reasens at embarrassment at the United States Gevernment. HJ I understand them. I read the dee1aretian. I understand where you're eeming from- are [ns. 250? HELEFASE 1 2 3 4 5 L.l LABS I I PLJ ELL HE HJ what I'm saying is. Understand I'm -- I think nsdn1s misunderstand me. I'm not making any dasis1dns here. I'm just ask1ng you, under ydur 1dg1c train, it we net td that ATE I mean. Iddk. and I'm nat the parsan that makes the dasisian abdut. ahu1aus1y_ 2503 PUBLIC RELEASE my sense is. PLJELLIE RELEASE 1 2 3 4 HJ I understand that. I understand why you 5 are there. I get that. ATE But. ne, I think far patential remediee -- let me back up. I think. number dne. again. if ydu determine that it ia net diaeduerahle. 9 10 11 and ad that ia where I think it ia tar 12 ua ta narraw the teens at what we are aaking far. If yau determine that it is discoverable. EU I mean. certainly yau can atrueture yaur erder 2509 HELEFISE PLJELLIE RELEASE I de want te get back just tn the issue at disseyery. theugh. The summaries are eempiete. Disseyery. as Cemmander Leekhart discussed yesterday. is eemplete- The eniy things that are currently pending. the ehetes were newiy disseyered items that wili he preyided to the defense within prehahly the nest wees er se. and again. these are phetes that are net specific te any they are just phetes that were taken of Hr. Nashiri whiie he was in CIA sustedy. The ether items sf diseeyery that I mentioned in my earlier presentatien were the unredasted pertiens ef IE er 2519 HELEFASE LABS I IE DHFUR PU BLIC RELEASE DLC reports that I believe are pending with you back in Hashington_ Those are the on1y other items of discovery- So we take issue with Hr. Kammen's characterization of that fact that we are not -- we're not into discovery. We do have outstanding the discovery motion iflfl which does reiate to items in the RBI program and to the extent that there were any additionai items that you ordered us to review or turn over. certainiy those wouid come in. But, at this point. the discovery piece is compieted for purposes of the prosecution's case in case and for mitigation. Again. I mean. I think Hr. Hammen's characterizations of the summaries is misleading or sanitized. You know. this is a process where we provide you with the originai source documents and you get to make a determination. unlike in any other part of discovery where it is pureiy the government decides what is turned over to the defense. it is a more protective system of making sure that the defense gets what they need in the case than if we were deaiing with unciassified discovery- So we are confident that the summaries that have been provided of Hr. Hashiri's treatment are accurate based on the documentary reports and evidence that we have. Hr- Hammen obuicus1y_ and the rest of his defense team. is free to 2511 MC LASE I IE DHFUH PU BLIC RELEASE PLJELLIE RELEASE discuss with his e1ient what his e1ient'e and what he -- the treatment that he suffered. That is always an eptieh te him. As far as I think -- I realize I went back te an let me jump back there. I'm eerry_ You knew, Hr. Hammen teiks ebeut Again, we are in a peeitinn when we filed the netiee. that again we den't be1ieve 'ff--f5f5fif"TT' 2512 RELEASE PLJELLIE RELEASE I think it as far as the mitigation evidence goes. is worth noting that. you know. mitigation evidence or discovery is sti11 grounded in the same theory of reievanoe. just as anything eise- There is no heightened sense of reievanoe for mitigation evidence. The Supreme Court has not rewritten the -- what the meaning of reievanoe is in a osoita1 ease. That's HJ But. again, in a saoitai case. is the definition of -- what is mitigating is orimariiy the defense's decision, isn't it? ATE That is true. but if the defense is seeking discovery from the government on and is using as a oasis for their discovery tool that it is mitigating, there sti11 has to be some reievanee there- HJ But we went I got you. I got you- through this discussion eariier but I'm with and the defense says is mitigating, 2513 HELEFASE PUBLIC REL EASE yeu. The gevernment ATC Right. I mean, it has te he greunded in semething. HJ ICUL It can't be just it is mitigating ATE Right. And I think that HJ I get yea. I understand yeur pesitien. ATE Right. and the interesting thing is if gee leek at case law en capital cases. then the mitigatien discussiens in capital cases always gees te admissibility. it always gees te what is admissible in a capital case. and the cases always center en what the defense is seeking te admit in as a mitigating faster and whether that is apprepriate. and that's where the ceurts talk sheet the defense. if the defense thinks this is mitigating. But when we are talking abeut discevery. there is still a relevance standard fer and especially if we're talking aheut classified discevery. again. it's get te be mere than a shewing ef theeretical relevance. Se I think we -- I have very well severed what the gevernment*s pesitien But. as far as the Shipper analysis that Hr. Hammen was talking abeut. I mean. the inmate's hehauier while awaiting trial en a capital crime, that's mitigating 2514 UNCUISEIFIEDHFUR PUBLIC REL EASE .PLJEILIC REL evidence if the prosecution seeks to show future dangerousness in that if one of the aggravating factors. one of the reasons why the government is seeking the death oenalty is because the defendant's future dangerousness. then sure1y. yes. the defense is entitied to introduce mitigation evidence that the accused inmate has actua11y behaved himse1f very we11 and those are the cases Tour Honor LDC If I cou1d interjeot. no [coL No. DUE I'm not certain this is a discussion that we shou1d be having in c1osed session. HJ He11 ATE That's why there's going to be a transcript that can be HJ Tosh. I mean. but -- both of you kind of got far afield. okay. The issue before me okay- and I understand both sides have a tendency to say. we11. they said this. I want to give you my version of that. I got it. But that is not before me. Whether it is mitigating evidenoe or not down the road. that is not rea11y before me. 2515 PLJELLI-I3 REL RELEASE 1 Ted say it is a disceverv issue and I can see 2 where that's kind ef beiere me, but the reai issue is 3 -1 5 Isn't that what is befere 3 That is. That the cniv thing I 9 weu1dn't eharaeterize it as evidence. and I knew fer 1D HJ I knew that. I understand thatthe day. if it is net admissib1e evidence er it's 12 net diseeverabie. 1et*s even ge the lewer standard. nene ei 13 this diseussien matters. 14 ATE I abseluteiv agree. And the 15 en'|y 1E HJ If we eperate under the assumetien it 17 might be disceverabie and might be admissibie evidence. then 13 the discussien dees matter. 19 ATE [Hs- Right. and the eniv reasen why, the ED eniv reasen why I'm discussing disceverabilitv cases and 21 reievant and mitigating evidence is because the defense is 22 seeking access. they are seeking disceverv ci- -And se I'm reseending te the extent that want 2516 PUBLIC RELEASE UNCLHEEIFIEDJIFUH REL EASE te make a decisien aheut se yeu either den't er dc have te make a decisicn aheut the rest cf it, that is what I'm addressing. HJ IEUL I get it. ATE I knew yeu hnew that -- the issues. Sc I just wanted tc cut the gevernment's ecsitien cut there. that mitigatien is certainiy undeuhted. And if that is the basis fer the discevery request fer the dei'ense 9 we weuid ect ta thatGet it. ATE Thanks. HJ Hr. Hammen- LDE Three er feur things. and then I'm dene. dust I think it is ehvieus. but perhaps need te he said- If we haven't received it, diseevery is net eempiete. when we receive it. we receive it. and -- se they say. weii. maybe seme day. but we have been hearing maybe scme day fer menths- and again. it cencerns us because and I understand what she is saying. but I think we need te recegnize that the reecrts they get are reperts they get frem the CIA which were prehabiy sanitized versiens ef the reai truth. And se what we have are sanitized versiens ef sanitized versiens that are themseives. when pieced tegether 251? UNCLHEEIFIEDHFUH PUBLIC REL EASE L.l LABS I I PLJ ELL HE 1 with infurmatifln that is buth puhiic1y that 13 publicly 2 avai1ab1e_ :]ear1y false. And so that': nur starting paint. 3 And. uhfurtunate1y. that fa13ity 1nfect5 our ana1y51s. 4 2513 PUBLIC RELEASE L.l LABS I I PLJ ELL HE 30. you hnnw. the way tn su1ve thia even in c1a551fied, But they say no- we can't dn that- HJ [?flL PUBLIC RELEASE PLJELLIE RELEASE I ISTSC1 if LDC Yeah. ahee1ute1y_ HJ The issue is whether they can DDC HJ absoIute1y. DDC Abse1ute1y_ HJ The enly issue befere us is whether they LDC Frank1y. I'm 3 1itt1e Surprised 12 HJ Hr. Hsmmen. there has been ne -- LDC I can't imagine -- I mean. 23 The fine1 thing I will say, and then -- I knew 252fl HELEFASE .LJP-J13 LAESIFIEDHFUH REL EASE this is net the discevery discussien. hut we have te eensistent1y remind the Brady versus Heryland is a sentencing case. It is sheet the eevernment's withhe1ding ef etcu1eatery evidence that went te the defendant's death werthiness in a Haryiand death panaity case. And se when they ta1h aeeut, yeu knew. what the disceuery eh1igstien ef the United States is. Brady versus Hary1and was the case. is the case. wi11 he the case. Thanh yen- HJ Since this is a censelidated metien with the ether case. it's ene ef the few times that I wi11 have te ru1e in heth eases- se we have te wsit untii we hear in the ether side- Se 1 get the petitien ef the parties. I wi11 review the evidence and issue a decisien at least net ear1ier then until I have an eppertunity fer the ether side te be heard. Any ether further matters te take up at this time en this case en this issue? ATE [Hs_ He. Teur Hener. enly ether than if yeu want HJ Dkay- At this peint in time. I dDn't, but I may change my mind- Dhay. df--f5f5Ef--wHL 2521 REL EASE RELEASE LDC And I w111 say that if they weu1d be HJ I get it. flkay. Eemmiseien is in recess. [The Hi11tery Commission recessed at 1D2T, 14 June 2013.] 'Tf'T5f5Ef"ff' 2522 PUBLIC RELEASE