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Crime / JusticeI am James Connell, defense attorney in the Guantanamo Bay Military Commissions for Ammar al Baluchi, the tortured man in Zero Dark Thirty. AMA

Mar 29th 2016 by connell-law • 35 Questions • 131 Points

Hi there! I'm [James Connell](www.imgur.com/kfHr30O), a civilian death penalty defense attorney in the Guantanamo Bay Military Commissions. My client is Ammar al Baluchi, who is best known as the "Ammar" whose torture is depicted in the movie Zero Dark Thirty. I've worked on this case, and only this case, since 2011. Al Baluchi was tortured in black sites for several years before his transfer in 2006 into supermax-level facilities at Guantanamo, where he is still awaiting trial.

There's no shortage of topics here, but to give you all some ideas - Guantanamo detentions, CIA torture, overclassification and secret evidence, political interference in the trial, military bureaucracy, intelligence-gathering, international law, and what it's like defending a massive, incredibly complex case in a brand-new, still mostly-untested legal system that was, frankly, designed for getting a conviction in the very case we're now trying.

Here's a 2014 video Interview I did on torture and classification, and a more recent interview on how I ended up working on the 9/11 trial, and the difficulties of trying to work in the military commissions system. My team Twitter handle is @BaluchiGitmo, and I am a contributor to the @GitmoWatch Twitter account.

I'll answer any questions as best I can, keeping in mind that I can't discuss classified information - which can include things which might already be widely known but were never officially released by the US Government (ie, I can't discuss anything from wikileaks). And I have to preface by stating that I represent only my client, Ammar al-Baluchi, and although I am paid by the US government, I (clearly) don't represent their views or opinions. Nothing I say in this thread is based on classified information.

1540 29 MAR 2016 edit: I am signing off now. Many thanks for all the insightful questions. For more information about the military commissions, follow @GitmoWatch and @CarolRosenberg on Twitter.

Q:

a civilian death penalty defense attorney in the Guantanamo Bay Military Commissions.

So, you're acting as a public defender of sorts? How does that even work in the extra-judicial bizarroworld of Gitmo?

How do you deal with the stress and uncertainty on a professional level?

IAAL and do things which, relative to your work, are very low pressure, and yet I am still often very stressed out simply due to the desire to get things right and do the best I can for my client(s). I just can't imagine what it must be like to have such high stakes.

A:

Yes, I am sort of a public defender for the Guantanamo military commissions. Before that I did death penalty cases. About 10 years ago, I figured out that I have almost no control over events. Sometimes people who deserve punishment are released; sometimes people who do not deserve it are imprisoned or executed.
Instead of outcomes tomorrow, I concentrate on doing beautiful work today. That helps manage stress, and increases my professional satisfaction.


Q:

How did you wind up on this case ?

A:

From 2003 on, I was a death penalty attorney in Virginia. In 2008, NGOs were looking for civilian attorneys to work in President Bush's military commissions, and I had a minor, behind-the-scenes role. In 2011, after President Obama restarted the military commissions, they were looking for full-time attorneys and remembered me from Round 1.


Q:

What do you plan on doing after the case is over?

A:

Probably I will go back to what I did before, handling death penalty cases in Virginia and elsewhere. But maybe some other opportunity will come along.


Q:

What rights do Guantanamo detainees have compared to a U.S. citizen arrested in the U.S.?

The U.S. has sent drones into foreign countries to kill people where presumably it would have been too expensive to capture them and give them their day in court.

If holding/preparing trial against your client becomes too expensive, from a legal standpoint, can the U.S. just kill him?

A:

The Supreme has said that, because the US has de facto sovereignty over Guantanamo, detainees there have all Constitutional rights which are not "impracticable and anomalous." That definitely includes the Suspension Clause and the Ex Post Facto Clause, and probably all other rights. So I certainly hope nothing like summary execution will happen there.


Q:

Do you think that Zero Dark Thirty's portrayal of torture leading to Bin Laden was fair and accurate?

A:

Actually, I don't know. We have not received discovery on this point yet. The Senate Select Committee on Intelligence and the CIA have differed sharply on what information emerged and the sequence of events. Until we see the underlying information and not just the spin, we can't know.


Q:

Do innocent detainees get any amnesty for losing their life in prison for that long time?

A:

No. The US has never provided any compensation to any detainee, although some other countries have. The government has blocked all lawsuits for compensation in the US under the state secrets doctrine.


Q:

Does it mean innocent detainees have zero values for their life's? Are any work comps in prison for financial help when they get released? Or just no value for their life? I just remembered Hitler quote 'who, after all remembers fate of Armenians?'

A:

The United States has taken no responsibility for detainees after their release. So you can draw your own conclusion.


Q:

Do you think the men and women who carried out the torture should be prosecuted?

A:

Yes, although I think it may take a long time. Argentina recently prosecuted torture from the 1970s.


Q:

Practically speaking, how would you go about that? Testifying is, in essence, a crime since the information is, for the most part, classified e.g. John Kiriakou.

A:

There are ways to prosecute crimes even when the underlying information is classified. The fact that they could prosecute Kiriakou is an example.


Q:

What happened to the other released detainees? Where were they sent?

A:

There are 91 men still held at Guantanamo; most have been released by either the Bush or Obama Administrations. Most were sent to their home countries, but some were sent to third countries, including Bermuda, Uruguay, and Bosnia.


Q:

Did home country of detainees made any effort in releasing innocents in diplomatic level?

A:

Yes, some countries have fought hard for their release of their detainees. UK is an example.


Q:

Not right now, but certainly as recently as last October.

edit: he's actually a British resident but a Saudi citizen. His case has however received a lot of attention in the UK as his wife and children still live here.

A:

There is one bar at Guantanamo, and in my experience, people don't tend to discuss their jobs with strangers. My office, which consists mostly of military, but some civilians, socializes a lot together at Guantanamo.


Q:

How do civilians join your staff?

A:

We have three kinds of civilians. Military Commissions Defense Organization hires some attorneys and paralegals as GS employees. The Convening Authority appoints some experts as consultants/"personal services contractors." And the CA hires contractors through major DOD contractors like CSRA and Leidos.


Q:

How do civilians join your staff?

A:

I don't think there is much of a reason to have military commissions. The US has a perfectly good court-martial system which can try war crimes if federal courts are not available for some reason. The military commissions are a hybrid of federal courts and courts-martial specially designed to convict in this trial.


Q:

What did you think while and since watching Zero Dark Thirty?

A:

The first thing I thought was, holy crap, that is Ammar. I am actually glad they made the movie, which provoked an important discussion otherwise missing. We watched it in the courtroom as part of a motion to find out the information the CIA gave to the filmmakers; that was impossibly difficult for Ammar.


Q:

Have you talked to your client about the movie? Has he seen it?

A:

Yes, he has seen it.


Q:

We watched it in the courtroom as part of a motion

The whole thing? On what grounds? It seems like there's no basis to view the entire movie, an artistic work of conjecture, in support of evidence.

A:

Several releases under FOIA have revealed that the CIA and DOD gave information to the filmmakers. We filed a motion (http://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(AE195(AAA))_Part1.pdf) to obtain discovery about what information the USG gave the filmmakers that they have not given the defense attorneys. We watched the clips portraying specific types of abuse of Ammar al Baluchi to demonstrate the filmmakers had access to information we do not. The military judge has not yet ruled on the motion.

Edit because link contains parenthesis and does not work properly.


Q:

If you were to direct a journalist to a good, undiscovered discussion about Gitmo, what would it be?

A:

One item that has received no real attention is the classification of the memories of detainees. The USG maintains that the prisoners' own memories of where they were and who interrogated them is classified. How can the USG classify the thoughts of a person who has not signed an NDA? I would love to see a journalist ask relevant players to explain that one.


Q:

If you were to direct a journalist to a good, undiscovered discussion about Gitmo, what would it be?

A:

Al Baluchi, who I know best, speaks excellent English, understands American legal and pop culture, and is humorous. In the arraignment, when the judge asked if al Baluchi understood that the trial could go on without him if he escaped, he said that he would be sure to leave a note. But he also suffers a great deal from the effects of his torture, and his #1 goal is to get torture rehabilitation.


Q:

What are the risks associated with processing people in a civilian or military system? I could see secret evidence being a problem in the civilian context, as the military would need to protect its sources.

A:

Both civilian and military systems have protections for classified evidence: the Classified Information Procedure Act for federal court, Military Rule of Evidence 505 in courts-martial, and Military Commission Rule of Evidence 505 in the military commissions. It is a balancing between national security and the right to defend oneself. It is easier for my office than some others because we all have security clearances.


Q:

How knowledgeable are the judges you deal with? I personally have seen judges struggle with cases involving technology and then make some... odd... rulings based on their misunderstandings. I could see the problem being even greater when dealing with classified technologies and torture techniques where you do not have the benefit of a wide pool of neutral civilian experts.

A:

Our judge is very knowledgable on military law, much more so than I am. Beyond that, it is important to educate him like other judges on why folk understanding of torture, technology, or anything else is not correct.

Specifically on technology, I watched the en banc oral argument last week in United States v. Graham, the leading case on historical cell site location information. It was obvious that some of the judges had no idea how the technology actually worked.


Q:

What GS level is defending terrorists - GS-13, GS-14, GS-15 or SES?

Do you have a clearance? If yes, are you worried your clearance will be revoked for doing an AMA?

A:

The DOD GS attorney positions at MCDO are GS-15.

Nothing in this AMA is in violation of my security clearance, as nothing in this AMA is based on classified information. In fact, there is specific regulatory authority for me to speak to the public/media on military commissions issues on behalf of myself and my client. Thanks for your concern, though.


Q:

Any thoughts on Omar Khadr?

A:

Khadr's story is amazingly complex. His family, his childhood arrest, his military commission trial, his long string of attorneys (some from my office), and his transfer to Canada all make his story one of the most complicated GTMO stories. I am glad Michelle Shephard and others are working to tell it.


Q:

How did the change in administrations between Bush and Obama changed the process? Did the aftermath of Snowden's disclosures change anything for your work (I know it is not directly on point, but the reputation of the US intelligence agencies have taken a hit thanks to Snowden et al).

A:

President Obama championed the [Military Commissions Act of 2009](www.mc.mil/portals/0/mca20pub20law200920.pdf), which made some changes to the prior MCA of 2006. The new law required appointment of "learned" (that is, death penalty-qualified) counsel, which is why I have this job. It also expanded the prohibition on use of torture-derived evidence to some extent.

The Snowden disclosures did not change anything major for my work directly.


Q:

How did you wind up practicing law at Gueneonomo Bay?

A:

I was a death penalty attorney based in Virginia. In 2008, I had a minor involvement in the first iteration of the military commissions, all in the background. But when the law changed in 2009 to require death penalty attorneys for a death penalty case, they remembered and asked me to take the case. I refused at first, but was eventually swayed by the promise of spending full time on one case, which I had always wanted to do. I have worked full-time on the one Guantanamo case since 2011.


Q:

What advice would have for a high school student who wants to go into law (specifically International Law)?

A:

Right now, go check out your school's debate team. Among other things, my eight years of debate gave me "argument sense," a deep understanding of how arguments work and don't work.

Also right now, take French. French and English are the languages of international law.

Longer term, look for internships that involve international law. The international NGOs depend on interns for a lot of their work, and offer a lot of opportunities. To eventually get a job in the field, you will need to demonstrate a commitment to international law, and internships are a great way to do that.


Q:

Thanks for the reply, is there any specific NGO or agency that you recommend I look into for internships?

A:

If you are interested in international criminal law, The Hague, Netherlands, hosts all the major international criminal tribunals. I just tested "Hague internships" in Google, which returned a bunch of options.

If you are interested in a different aspect of international law, research which UN agency has jurisdiction over it, and check their web site.


Q:

Hello, I'm an attorney myself, but in a completely different field of law. I am far from an expert, but this is my theory about why the Guantanamo is the way it is, please let me know if you think it's realistic?

In a normal trial, all of the ways that law enforcement collects evidence and treats the suspect after arrest are extremely important to the outcome of the trial- if the prosecutor can't establish that the defendant was treated properly, or that the proper chain of custody for all evidence was respected, the defendant very well might walk. If the police are overly coercive or step over the line in some way, the defendant should be found not guilty. In the Guantanamo cases, it seems like all of that would be out the window. Many if not all of these people have been tortured, and they have all had their right to a speedy and fair trial severely impinged, coming to trial more than a decade after their arrest. I think that the CIA agents (or whoever) who arrested or interrogated the suspects still in Guantanamo have good reason to believe that the people in custody did something that gave real support to terrorism. Or they wrote a report over a decade ago with a note that says that Suspect X (for example your client) was captured in a scenario making him likely connected to Al Qaeda, or that he had a note in his pocket with an important phone number, or somebody else in Afghanistan named him as a key figure.

So we'd have a situation where Obama or whoever is in charge thinks 1) if the defendant is tried in a civilian court, they will be found not guilty based on the many ways these suspects and cases have been mishandled BUT 2) this guy probably did something and it would be a PR nightmare if he was on the news next year as a terror suspect in a new incident so we are going to do this screwy military system to try and reclaim our dignity somewhat.

I haven't heard this in the mainstream narrative about Guantanamo, does this sound right to you?

A:

Your hypothesis is pretty sound. I think that sort of thinking is driving the military commissions.

The problem, of course, is that at some point the cases emerge back to our side of the looking glass. So far, no military commissions conviction has survived appellate review. The case of al Bahlul will soon have its fourth decision from the D.C. Circuit, so we will see what happens there, and if the Supreme Court is willing to weigh in on these issues.


Q:

What kind of court is this trial in? Is it one of those military tribunals? If so, how is it different in practice from a traditional civilian court?

A:

This trial is in a military commission, which is a form of military tribunal. Some of the differences are logistical, in that a large group travels every 1-2 months to hold court in a temporary building on an abandoned airstrip. Some of the differences are legal, like the open question of what provisions of the constitution apply, the limited ability to compel witnesses, and relaxed hearsay rules.


Q:

Given the recent events in Europe, do you think that it will change the attitudes towards the past and potentially future prisoners? Do you think that the current batch of presidential candidates will have a positive or negative effect on the efforts to right the wrongs?

A:

I don't think the recent attacks in Europe will have much effect on US policy, but they certainly seem to be changing attitudes in Europe, driving a wave of militarized law enforcement and anti-Muslim sentiment. I think what many people may not realize is that adverse government reaction is the main goal of terrorism, because terrorists believe harsh government reaction will radicalize supporters for their cause. The best book I have read on this topic is called [Y: The Sources of Islamic Revolutionary Conduct](www.higginsctc.org/terrorism/sources_islamic.pdf).

The worst thing about the Republican frontrunners' discussion of torture is the treatment of torture as a legitimate policy option. Once torture is a legitimate policy option, there is not much left on the other side of the line.

[Edited to correct book link]


Q:

You linked a createspace book which I believe may be a bootleg. Incidentally the book is widely available for free.

A:

Thank you for pointing that out. I have corrected the link to point to a free PDF version of the book.


Q:

I'm guessing you'd have an expert regarding the infamous Zimbardo experiment to lay groundwork his initial psychological mindset. Following may be an expert on the psychological effects of torture. Finally you can use someone like Elizabeth Loftus to further state the fallibility of eyewitness testimony, even without torture.

Do you know how much of this case will be on westlaw? Is it a sealed case?

Will you continue to work in this area or go to something less stressful after its all over?

A:

Your thoughts on experts are basically right.

Unfortunately, none of the case is on Westlaw so far. There have been thousands of unclassified pleadings, but they are only available through a public portal at www.mc.mil. The easiest way to know what is going on in the case is to follow @CarolRosenberg or @GitmoWatch, both of which closely track the military commissions.

I don't think about my professional future very much, as we still have a long way to go on this case.


Q:

What are your thoughts regarding Padilla v. Yoo?

A:

Legally, it is an unsurprising result. American law is incredibly deferential to government officials acting in an official capacity. But I wish the Administration would be willing to use its Department of Justice to accomplish some justice.


Q:

You've worked on only this case since 2011 - I am completely ignorant of what that would consist of. How is there enough work to keep a team of people working full-time for 5 years? Would you mind giving a taste of what a typical day/month looks like? I assume the work load waxes and wanes - especially if you get a data dump that must be combed through or you're in the final weeks of prepping a particular motion. How do you keep a fresh eye, after steeping in this case for so long?

A:

I wish the workload waxes and wanes, but it only waxes. Despite the long time period, there is a crushing amount of work to do. Some numbers from a recent filing:

83 days of hearing travel to Guantanamo in 2016

In first quarter of CY 2016, our team travelled 155 person-days for investigation to eight countries and four US locations. Separate from hearings and investigation, our team traveled 39 person-days to Guantanamo.

There are well over 3000 pleadings in the case, and new pleadings are filed an average of every two hours on business days.

The prosecution represents that it is working seven days a week to produce discovery, and I believe them. It has already produced hundreds of thousands of pages, and multiple terabytes of data, of discovery. I believe there are millions of pages remaining to be produced; we know the SSCI reviewed 6.3 million pages on the CIA rendition and interrogation program.

That said, I am big believer in a beginner's mind.


Q:

Thank you for the AMA. What's the hardest part about representing such a highly known and despised person? What's it like having a client portrayed through such a known movie?

A:

The hardest part, full stop, is being away from my family with all the constant travel. I can't say that my client is highly known or despised, as most people have never heard of him. Like I did in the title, I usually try to introduce him through the connection to ZD30, which is well-known at least in the US. So I find the movie connection generally helpful to give people some sense of who he is.