On November 6, Military Commission Judge James Pohl ordered the prosecution to hand over to him all ICRC confidential reports on its visits to Guantanamo that are in the possession of the Department of Defense. This extraordinary order follows ten months of litigation since the filing of a motion by defense counsel for four defendants, including Khalid Sheikh Mohammed, to gain access to the ICRC reports in order to learn about the conditions of confinement of their clients. In this post, I will outline the legal and moral dilemmas associated with the defense counsel’s request, comment on the judge’s order, and suggest a way forward.
While the issue has a complex procedural history, the basic facts are as follows. The ICRC has been visiting detainees in Guantanamo consistently since 2002. Detention visits are among the ICRC’s core missions in both international and internal armed conflicts. In January 2013, after the Prosecution rebuffed a defense motion seeking to monitor conditions of confinement at Gitmo for their consistency with international law by asserting, in part, that the ICRC conducted such monitoring, defense counsel asked for access to ICRC documents on the their visits. Both the government and the ICRC (as an intervenor [ICRC brief], represented by Pillsbury in DC) opposed the request, the former asserting that the material was irrelevant and the latter that it was completely privileged from discovery as a matter of customary international law. Defense counsel asserted that it would keep the memoranda confidential and indeed was bound to do so because, as a component of DoD, it was bound by DoD policy (from 2007) that prohibited disclosure of the reports. The prosecution in turn responded by insisting that it be allowed to review the ICRC memoranda first, while also rejecting the ICRC’s claim of an absolute privilege from discovery. Deputy Assistant Secretary of Defense William Lietzau asserted in an affidavit that DoD policy did not permit sharing of the memos with either the prosecution or defense and that he had not done so.
Judge Pohl rejected the positions of the defense, prosecution, and the ICRC. While accepting the right of the defendant to relevant evidence, he did not order disclosure of the documents to the defense at this stage; he did not allow the prosecution to review the documents for their relevance; and he did not accept the ICRC’s claim of absolute privilege. Instead, his order means that the DoD officials with custody of the numerous ICRC report will need to pass them to the prosecutor, who must pass them – unread – to Judge Pohl, for his determination on discoverability. The judge found precedents for judicial involvement in “cases of particular sensitivity” (para. 4c), but he did not lay out what his standard will be for handing over any material to the defense (and presumably the prosecution as well).
On the critical privilege issue, Pohl rejected the ICRC’s argument that its materials were completely privileged under customary international law. The ICRC had noted that the ICTY and ICTR had recognized such a privilege and that it was also recognized in the rules of the International Criminal Court. But the judge, while acknowledging that customary international law was relevant for determining privileges under the Commission’s rules of evidence, found no custom insofar as no national court had recognized such a privilege – and indeed, the ICRC brief did not mention any. He thus found “a lack of meaningful or longstanding international common law” on the question.
As a matter of customary international law, the privilege claim seems to me like a close call. Clearly, international tribunals have recognized the privilege as a matter of custom, with the ICTY in Simic placing a great deal of reliance on the acceptance by states of the ICRC’s special status through ratification of the Geneva Conventions and other statements. Yet for the confidentiality of ICRC records to be customary international law, we would normally need to find some sort of consistent state practice specifically recognizing it as such. Universal ratification of the Geneva Conventions, even assuming most states did so understanding the ICRC’s mode of operation, does not indicate support for absolute confidentiality of records, especially in criminal proceedings when needed by defendants. It would have been helpful if the ICRC had cited in its brief some specific statement of states regarding confidentiality of ICRC records or a national court decision to deny disclosure of them. And when a criminal defendant has a right to relevant material in the hands of the government under U.S. law, there is a case that privileges under customary international law should be interpreted narrowly.
On the other hand, the ICC Rule of Procedure 73, which exempts ICRC communications from disclosure, was drafted by the many states parties to the ICC and is much stronger evidence of state attitudes, even though it is not clear whether the ICC Rule codifies a customary law position or simply a rule for that court. More generally, as a methodological matter, in a novel case such as this one – perhaps an ICRC delegate has never been asked to testify in a domestic court, or there are no published rulings to this effect – it seems to me not a stretch to rely on the decisions of the ICTY, ICTR, and the states drafting the rules of the ICC as evidence of custom. After all, U.S. courts have relied on principles of accomplice liability from these international tribunals (caselaw or the ICC statute) as reflecting customary international law in various ATS cases. Judge Pohl did not deal with the nuance of determining customary international law or its relationship to U.S. law, but rather assumed that the absence of national cases showed the absence of custom.
It is worth noting that the ICRC brief did not include a treaty-based argument of confidentiality, namely status agreements between the ICRC and states that host delegations in which the latter promise to respect the confidentiality of reports, including not divulging their content nor permitting their use in legal proceedings without the ICRC’s permission. This possibility is mentioned in an ICRC memo attached to its brief, but not in the brief. Assuming the United States and the ICRC have an agreement with such a clause, the case for a legal obligation becomes much stronger — although one might still argue that an agreement between a state and an NGO, even one as sui generis as the ICRC, is not a treaty.
But even if the judge were to reject the ICRC position as a matter of customary or treaty law, he would still seem have discretion to grant the ICRC’s motion for non-disclosure by declaring the material privileged under the Commission’s Rule of Evidence 701(l)(2). And here I think at a minimum he erred in not considering the ramifications of release. The ICRC makes a critical point – one mentioned by Lietzau in his affidavit – about the centrality of confidentiality to its detainee visit policy (and indeed to other aspects of its work). I spent a year working in the ICRC Legal Division several years ago, and there is no question that many states allow the ICRC into their prisons only because the reports it writes remain confidential. If governments thought there was a significant risk of disclosure of ICRC information, they would keep the ICRC out, or worse, ICRC delegates who authored a report critical of prison authorities might be in danger. Either way, this would work to the harm of the detainees, for whom the ICRC is often the only channel for passing on concerns about confinement and interrogation to the authorities, including at the highest level of government. And indeed the U.S. government and ICRC have worked on the understanding that the documents would stay within the chain of command of the relevant agency (DOD, and occasionally the CIA). That does not mean that the ICRC might not in extraordinary cases make some information public; indeed it has a policy (public version here) on this question after it justifiably faced harsh condemnation for its relative silence during the Holocaust.
One anecdote might demonstrate this. In April 2009, Mark Danner of the New York Review of Books obtained a copy of a 2007 ICRC report on the CIA’s apprehension and harsh treatment, including torture, of suspected Al-Qaeda detainees. When I mentioned the leak to a colleague at the ICRC during the time I was working there, I thought for a moment that the colleague might be pleased, both because it revealed just how much the U.S. government was flouting IHL and because it made the ICRC look so professional for the thoroughness of its report. I even wondered whether the ICRC might have leaked it to Danner. Instead, the colleague blasted the leak as undoubtedly coming from someone within the U.S. government who wanted to embarrass the government and end the practices – blasted it because it would, in this person’s view, jeopardize access to prisons all over the world if governments needed to worry about whether a disgruntled official might leak ICRC documents to the press.
Now this perspective considers only the downsides of disclosure – whether by order of a court or leak to a journalist – in terms of access by the ICRC and the welfare of detainees. The other side is that the document given to Danner – and other information reported earlier to other journalists — surely helped shape the debate in the United States that led to a termination of the worst practices, like water-boarding. And the documents sought by the four defendants at Guantanamo might well be relevant for ensuring that their detention is consistent with IHL standards and that their sentence, should they be convicted, is fair.
Moreover, the risk to ICRC operations from release to defense counsel in this one case is impossible to gauge. Surely the ICRC has known since the creation of the military commissions that its reports might be sought as evidence by defendants and nonetheless decided to continue with visits to Guantanamo despite the clear risk of disclosure. If the risk were that great, they could have told U.S. authorities that they would not continue visits; and the U.S. government, if it cared that much about ICRC visits, which indeed it does as a sort of shield of legitimacy for operations at Guantanamo, could have exempted the reports from disclosure in the various Military Commissions Acts or regulations.
So we fundamentally have a moral dilemma about the ramifications of release of the materials. It is not too different from the case of the Colombian government’s ruse that led to the rescue from FARC custody of Ingrid Betancourt and fourteen others in July 2008, where one member of the hostage-rescue team wore an ICRC emblem to convince the FARC that they were aid workers, not police or army. The ICRC was again furious, because misuse of the emblem, a clear violation of the Geneva Conventions, risks all future ICRC work as warring parties might now question whether those in an ICRC van are really from the ICRC. Colombia apologized – but Betancourt and the others were free of their miserable captivity.
Even if Judge Pohl cannot look at it in moral terms, he still has a duty as one who metes out justice to consider the ramifications of release to defense counsel. Can the documents remain confidential? Even if they can, will their release to defense counsel nonetheless create a chilling effect as other states then recoil from ICRC visits? And how valuable is the material to the defendants anyway? ICTY Judge David Hunt stated in a concurring opinion in the Simic case, correctly in my view, that the ICRC privilege could not be so broad as to deny a defendant access to truly exculpatory evidence, but is that the case here? So a solution needs to be tailored to the purpose sought by the defendants.
As a first step, Judge Pohl should follow the lead of ICC Rule 73(6), which calls for consultations between the ICC and the ICRC where the latter’s documents are “of great importance for a particular case.” (Indeed, there is a strong argument that he should have kept all the pleadings on this issue confidential at this stage as a provisional measure to reduce the risk to ICRC operations.) Lietzau’s affidavit indicated that DoD and the ICRC have already been down this path, with Lietzau describing the ICRC as insisting that any disclosure would be a “significant breach of its operational modalities.” But perhaps the direct involvement of the judge, and a little compromise by both sides, will allow for some possibility to thread this very small needle. The ICRC for its part may prefer not to budge as a matter of principle, but if they stick with that position they will lose any influence over the outcome, cutting off their nose to spite their face. So a procedural solution seems the best option at this stage. Absent that, Judge Pohl, or more likely the appellate judges above him, will need to balance the interests himself and find a solution that respects the defendants’ right to relevant – but only relevant — information while minimizing the impact on the ICRC’s operations.