Thread by @PradhanAlka

Thomas: "The contractors have testified before" - yup, we examined them in open session, w/govt lawyers present.

The distinction govt is making is not accurate; Drs. Mitchell and Jessen testified at the military commissions about the facilities themselves, but without confirming or denying the locations of the sites.

Sotomayor (I think?) pointing out the potential for segregation of discovery due to govt's admitted declassification of detainee torture.

"Why can't M & J talk about the facility without referencing a specific location"? Exactly what they did with us at Guantanamo. *Exactly*

The govt itself has given codenames for the black sites: Locations 1 - 10. SSCI gave color codes: COBALT, GREEN, BLACK, VIOLET, MAROON, BLUE, etc.

Roberts: "There is a lot to talk about that doesn't have to do with where the events occurred"
Govt: "That worked in Salim and at the MCs"

Govt admits that they wouldn't be asserting privilege if the discovery were for case in US courts or commission.

Govt's entire issue is that the information may be "shipped abroad" - the information from the MCs was "shipped abroad" as well, and much public reporting focused on making "matches" w/info the govt still considers to be classified. We just don't confirm/deny those matches.

Sotomayor and someone else asking about foreign govts seeming to confirm information USG considers to be classified.

Govt: "I would resist the idea that we're anywhere near the farcical zone here." 🤣

I am going to frame the above for my office.

Govt admits that they don't know the current status of the investigation in the foreign country.

Kavanaugh: "To what extent is the privilege is constitutional v. common law?"
Govt: SCOTUS hasn't answered that q. Reynolds said it was common law, progeny said it had "roots" in constitutional law.

Barrett: "Why can't govt police the borders of testimony?"
Does the govt have the right to do that here?
Govt: "Yes."
Ok, so...

The "concerns" about using codewords is really stunning. All we do at the MCs at Guantanamo is use codewords, all day, for everything the govt considers to be classified. Location numbers, "unique functional identifiers" for @CIA personnel.

Q: "Is this is a Reynolds case or an intel case?"
Govt: "Either" (basically, whatever allows us to keep this info from embarrassing us)

Kagan: "AZ was detained in two separate locations, why can't we use codewords without saying in which location?"
That is PRECISELY what we have done for nine years in pre-trial hearings at Guantanamo. This is a non-issue.

Govt admits that codewords mitigates some of the damage.

Gorsuch asking about degree of deference, whether court can consider increased assertion of State Secrets Privilege(!) nowadays

Gorsuch asks about age of facts, govt admits that affects the overall effect on national security.
Gorsuch also asks about seriousness of torture allegation and if it's relevant. Govt says "maybe necessity inquiry," but not relevant bc it's for a foreign investigation.

Klein starts by saying he does not plan to ask about specific foreign countries.

Need to know "what happened inside Abu Zubaydah's cell in 2002 and 2003"
Same litany of questions that we asked M & J in 2020, in public session.

Thomas: If much info is already public, why do you need additional testimony?
Klein: Mitchell's book, other public docs aren't specific enough to AZ.

Barrett: If the location isn't a secret, and his torture isn't a secret, you don't need the contractors? But you want the contractors to say it happened in a specific location?
Answer: We don't need them to say real locations.

Klein disputes that torture has been declassified; locations of the black sites should not be state secrets.

Klein: I can ask "what happened to AZ in Jan 2003?" That is not privileged.
Govt's argument is that the *purpose* of asking the question (for foreign govt investigation) makes it privileged.

Klein: 9th Circuit said we could ask the question with a locaton name. But we offered to continue without mentioning location names, using codenames.

Barrett asking about what precisely AZ needs, Klein answers that AZ needs to place specific treatment within specific timeframes.

The point here is really important - in terms of determining timeline of torture, the contractors' testimony, matching (codenamed) locations to specific torture and interrogations, is critical.

Justices hammering about "official confirmation," point is really that govt has allowed M&J to official confirm plenty of specifics under oath in Salim and MCs. Just using codewords.

Question about why AZ is still being held at Guantanamo after Afghan operations ended. Million dollar question about why USG continues to contest Guantanamo habeas applications!

Sotomayor: torture is not a secret, state secret is confirming location.
Klein argues both that this is no longer a secret and that if directed, they will use codenames.

This is where we (MC defense) depart from AZ's position: locations are still classified, although we have always argued that they should not be withheld from security-cleared attorneys (including us).

But AZ is on solid, well-trodden ground with use of codenames.

Sotomayor thinks SSCI report had a lot of info about AZ - this is a common misconception. There is a lot of info about some treatment, some timeframes, some detainees. The purpose of the SSCI report was NOT to establish facts for any particular detainee, (cont)

...purpose of SSCI report was to catalog CIA's torture program. Reminder that no one other than a handful of govt officials has seen the full report. What we all have is a highly redacted summary.

The redacted summary of the SSCI report is no substitute for accurate, detailed, detainee-specific timeline of torture.

Alito asks, you want official link to foreign countries.
Klein clarifies that "we want to know *what*," not "where and when."

Again, understanding how torture timelines work is impt here. Facilities used as black sites were very different, served different purposes. Testimony about those details - without naming countries - is both critical and very doable.

Q: Should we treat contractors differently from employees?
Klein: Not the only distinction - it's the combination of who they are and what they would be saying. M&J are not agents for the govt.

Sotomayor: contractor v. employees seems irrelevant.
Klein: Question is whether they can testify about non-secrets, declassified information.

Klein comes back to context of litigation - the fact that govt opposes M&J's testimony primarily bc it is for purpose of assisting foreign govt investigation. Any other context would be fine - as Salim and MC showed.

Govt: AZ not being held incommunicado.
Gorsuch: Will govt make AZ available to testify?
Breyer: I do'nt understand why he's still there, following Hamdi.
Gorsuch: Asking directly - will govt make AZ available to testify re treatment.
Govt: Cannot offer that now.

Gorsuch: Will govt commit to answering q about allowing AZ to testify about torture?
Govt: yes.
Q: Inherent in the question is whether AZ can testify about what happened to him without invoking SSP.
Govt: Still subject to restrictions.

Sotomayor: Will you permit him to testify without invoking SSP, yes or no. Inform the court.

Alito asking Fletcher what the scope of his representation of the USG is, Fletcher says he needs to consult re SSP.

Fletcher mentions that AZ's habeas case is in active litigation, govt is filing a surrebuttal tomorrow (undoubtedly opposing his habeas application).

I want to comment here before losing the thread, that the question about allowing AZ to testify is hugely problematic. As the torture victim, AZ's memory cannot be relied upon in lieu of other testimony/accurate reports.

Kavanaugh asking if the USG is still engaged in hostilities under the AUMF!! Fletcher says yes.

All done. Let me footstomp once more that while I don't think the USG is going to say yes to AZ testifying without invoking SSP, the focus on that as a substitute for M&J is really troubling and shows a lack of understanding about torture effects.

I had an oral argument three weeks ago about exactly this - yes, of course AZ and other @CIA torture victims are not in privity with the USG and should be able to testify openly about exactly what happened to them.

BUT such testimony, coming nearly 20 years after the worst of the physical torture that fractured their memories, AND without the benefit of any medical treatment for their torture, cannot be sole source of information to establish facts about the torture timeline.

This is why we keep fighting for discovery in the form of documents and witnesses - because the USG deliberately broke these men and then gagged them under classification so that they could not testify reliably in their own cases.

Can they speak out? Sure, @BaluchiGitmo has written statements about his recollections, and Abu Zubaydah has drawn horrific depictions of his torture that undoubtedly match some of what happened to him. nytimes.com/2019/12/04/us/…

But those recollections have to be bolstered with dates, details, places (even codenamed) for litigation purposes.

This entire case boils down - as all Gitmo cases do - to the government's refusal to allow any measure of accountability. Even if we abide by all restrictions, use codewords, etc - they fight at every juncture to stop embarrassing information from getting out.

Which is, frankly, an illegal use of the State Secrets Privilege. Fin.