[00:01:35] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:01:38] Speaker 04:
I am Alka Pradhan, representing Ammar al-Baluchi in United States versus Khalid Sheikh Mohammed at the Guantanamo Bay Military Commissions.

[00:01:47] Speaker 04:
Your Honors, the central question in Mr. al-Baluchi's petition for a writ of mandamus is, can the government destroy exculpatory evidence before even the beginning of a capital trial?

[00:01:58] Speaker 04:
We're asking the court to order the preservation of the last physical remains of Site A, a CIA black site in which Mr. Albaluchi was held and tortured in 2006, immediately prior to being rendered to Guantanamo Bay.

[00:02:14] Speaker 04:
And Mr. Albaluchi has a clear and indisputable right to this writ of mandamus, because military judge Pohl abused his discretion and prejudiced Mr. Albaluchi's due process rights.

[00:02:26] Speaker 04:
Judge Poll issued a public preservation order for Site A, and then granted the government an ex parte destruction order.

[00:02:34] Speaker 04:
His trial judiciary covered up the destruction for nearly two years, and then Judge Poll approved a government visual mockup of Site A in violation of the Military Commissions Act.

[00:02:47] Speaker 04:
The remains of Site A still constitute original exculpatory evidence, and we ask only that the existing stay

[00:02:55] Speaker 04:
on their destruction remain in place.

[00:02:59] Speaker 04:
In 2012 and 2013, the issue of the preservation of Site A was handled adversarially.

[00:03:05] Speaker 04:
First, Judge Sullivan at the D.C.

[00:03:07] Speaker 04:
District ruled in favor of the government for the purpose of habeas proceedings.

[00:03:12] Speaker 04:
And then at the military commissions between 2012, between arraignment in May 2012 and December 2013,

[00:03:20] Speaker 04:
Judge Poll handled the issue of the preservation of Site A adversarially with the defense able to file multiple motions asking for not only the preservation of Site A but access to Site A and various related motions asking for discovery about Site A and the other black sites.

[00:03:40] Speaker 04:
During that adversarial process, Judge Poll found that Site A was discoverable

[00:03:45] Speaker 04:
He told the defense that they would have a chance to fully litigate the question of access to Site A, as well as the legality of any substitutions for the site itself, and other related discovery issues.

[00:04:00] Speaker 04:
He issued a public preservation order in December 2013, after approximately a year and a half of this adversarial process.

[00:04:08] Speaker 04:
And that is in the record, a pallet exhibit 80G.

[00:04:13] Speaker 04:
And that order, that public order, orders the government to, quote, maintain any structure or fixture of any overseas detention facility in their current state.

[00:04:26] Speaker 04:
Now, at that point in December 2013, the defense felt secure that they would have the opportunity to exercise their rights to litigate the question of access to Site A and other information about Site A.

[00:04:41] Speaker 04:
before any action was taken to destroy it.

[00:04:45] Speaker 04:
And yet in early 2014, the government continues to file ex parte motions to Judge Pol, asking for approval of certain substitutions.

[00:04:53] Speaker 04:
On June 4th, 2014, roughly six months, just six months after the issuance of that public preservation order,

[00:05:02] Speaker 04:
Judge Poll issues AE-52-EE.

[00:05:06] Speaker 04:
And I apologize for the strange numbering of our motions, but I know that.

[00:05:09] Speaker 01:
Can I just interrupt you for one second?

[00:05:10] Speaker 01:
Yes.

[00:05:11] Speaker 01:
I just want to make sure, as I understood this case, the only issue before us, I mean, I think all this background's interesting, and I read it in the brief, but isn't the only question before us whether or not the photographic and mock-up that the government, the classified one, whether it's

[00:05:29] Speaker 01:
Whether that's a quote adequate substitute?

[00:05:33] Speaker 04:
Not at all, Your Honor.

[00:05:34] Speaker 01:
That's not the only question before us?

[00:05:35] Speaker 04:
No, in fact, that's a red herring that the government keeps trying to raise, Your Honor.

[00:05:39] Speaker 04:
The government keeps pointing to the creation of their visual mock-up there, what they call a substitution, which in fact is not a substitution at all under MCRA 505.

[00:05:50] Speaker 04:
And in there, in my friend's response, they were... Why isn't it?

[00:05:54] Speaker 01:
Why couldn't it be?

[00:05:55] Speaker 04:
It cannot be because Judge Poole never had access to the original classified information.

[00:06:02] Speaker 04:
Neither the Military Commissions Act nor SIPA contemplate the creation of a substitution without the ability to compare the government's purported substitution to the original classified evidence.

[00:06:14] Speaker 04:
In fact, SIPA

[00:06:16] Speaker 04:
allows for the parties to ask for reconsideration of the substitution, which would not be possible without the preservation of the original classified evidence.

[00:06:25] Speaker 04:
What neither the Military Commissions Act nor SIPA do is allow Judge Poll to compare one substitution for the government's version, the second version, of the site without ever consulting the original classified evidence, which is the site itself.

[00:06:44] Speaker 04:
And MCRE 505 actually specifically prohibit, specifically provide for the preservation of the original classified evidence for appellate review.

[00:06:58] Speaker 04:
And so Judge Cole could not have approved what he called a substitution of a substitution, and he actually issued a previous order.

[00:07:09] Speaker 04:
And that was AE-308-PP, which we refer to in the papers, in which he has self-said that there is no such thing as a substitution of a substitution.

[00:07:19] Speaker 04:
The comparison must be to the original classified evidence.

[00:07:25] Speaker 04:
And so I submit to you, Judge Tatel, that the

[00:07:29] Speaker 04:
Issue of the substitution is a complete red herring from the government.

[00:07:33] Speaker 04:
The quality of the substitution itself, what the government's calling a substitution, what we call a visual mock-up that frankly, it is worse than a real estate offering.

[00:07:43] Speaker 04:
There is a limit to how much I can describe it in an unclassified setting, but we do describe it in great detail in the papers in the classified appendix at pages 2469 to 2479.

[00:07:54] Speaker 04:
and the many errors and discrepancies in that visual mock-up.

[00:07:59] Speaker 04:
But the quality of the substitution will certainly be an issue on appeal, but it's a secondary issue, and it's not an issue here, because the statute... So is your position that Judge Paul had to physically visit the site?

[00:08:13] Speaker 04:
Yes, Your Honor.

[00:08:14] Speaker 02:
He had to physically visit the site?

[00:08:16] Speaker 04:
We asked Judge Paul if he had physically visited the site, and he said no.

[00:08:19] Speaker 04:
We asked if he had sent anyone.

[00:08:21] Speaker 04:
investigators or forensic specialists to observe the site.

[00:08:25] Speaker 02:
So is your position in a normal, in a SIPA case that the federal judge would have to visit the site?

[00:08:32] Speaker 04:
Your Honor, in a case like this where the site itself constitutes exculpatory evidence, where the actual physical building and the physical conditions at the site are the evidence, it's not a mere

[00:08:46] Speaker 02:
No, I just, this is really like a bottom line question.

[00:08:49] Speaker 04:
Absolutely.

[00:08:49] Speaker 02:
So, in a federal district court case in which the issue involved the black site, for example, would the federal judge have to personally visit the site before permitting a photographic, a video substitution?

[00:09:04] Speaker 04:
We would say yes, Your Honor.

[00:09:05] Speaker 02:
Is there any case that's ever held that?

[00:09:08] Speaker 04:
So not necessarily that the judge would have to visit, but there are cases that mandate the preservation of overseas sites because of their centrality to the defense.

[00:09:20] Speaker 02:
It's particularly because- But you're making an argument, which I have to say I didn't pick up from the first time of reading the brief, which is that you can't substitute a classified document

[00:09:33] Speaker 02:
with another without seeing the classified document.

[00:09:36] Speaker 02:
We don't actually have any law about the physical site, but you're using this as an analogy in SIPA, I take it.

[00:09:42] Speaker 02:
Yes.

[00:09:43] Speaker 02:
But is there any case that's ever done this, where a judge has had to visit the site?

[00:09:48] Speaker 02:
That's my question.

[00:09:49] Speaker 04:
I don't believe so, Your Honor.

[00:09:51] Speaker 04:
Again, this is a testament, this is the product of the government's choices in holding Mr. Al-Baluchi in an overseas site that itself constitutes exculpatory evidence.

[00:10:02] Speaker 04:
And so, yes, under the statutes, when the original evidence is the location itself.

[00:10:09] Speaker 02:
And Judge Sullivan's position with respect to crime scene, videos of crime scene and such, does the judge have to visit the crime scene before he can permit the introduction

[00:10:20] Speaker 04:
Perhaps not the judge himself, but in order to approve a substitution, well, there are actually, let me back up, Your Honor, if I may, because there are several points with regards to Judge Sullivan's order.

[00:10:31] Speaker 04:
First, that order was, of course, for the purposes of habeas proceedings, which is, we would argue, a different standard altogether than exculpatory evidence in death penalty proceedings.

[00:10:42] Speaker 02:
But is it different for, than mandamus?

[00:10:45] Speaker 02:
That is, the standard of review in habeas is better for you than it is in mandamus.

[00:10:50] Speaker 02:
So, I understand the normal argument that habeas not as good as in a trial, but we're not on a trial here.

[00:10:57] Speaker 02:
We're in M&M's.

[00:10:59] Speaker 04:
Certainly, Your Honor.

[00:11:01] Speaker 02:
So nearly I really have to back up a little bit.

[00:11:03] Speaker 02:
I am a little confused about the relationship between Judge Sullivan's decision.

[00:11:09] Speaker 02:
Judge Sullivan, the federal judge in this district, ruled that the government could destroy the site.

[00:11:16] Speaker 02:
Why wasn't that the end of the matter?

[00:11:19] Speaker 04:
Well, Your Honor, because Judge Sullivan, and the timing of that order is actually interesting, because Judge Sullivan's order was issued on May 7th, 2012.

[00:11:28] Speaker 04:
On May 5th, 2012, Mr. Abolucci and the other four defendants were arraigned in the 9-11 case.

[00:11:34] Speaker 04:
And the government knew that Judge Sullivan's order to create a visual representation of Site A and to then destroy the site was not enough for a death penalty case.

[00:11:49] Speaker 04:
And there are a number of issues with Judge Sullivan's order.

[00:11:51] Speaker 04:
Number one, it talks about the, quote, potential relevance of the site to the habeas petitions of the detainees.

[00:12:00] Speaker 04:
Now, that is a very, very different question than whether or not the site constitutes exculpatory evidence in a death penalty case.

[00:12:07] Speaker 04:
And so the government came back.

[00:12:08] Speaker 02:
Well, how much can we just pause on this?

[00:12:12] Speaker 02:
Relevance is a lower standard.

[00:12:14] Speaker 02:
It should be an easier standard than exculpatoriness.

[00:12:18] Speaker 02:
He ruled it wasn't necessary to do this.

[00:12:22] Speaker 02:
Why didn't you appeal a behaviorist decision?

[00:12:26] Speaker 02:
I understand your argument with respect to Judge Poles that you didn't know about it.

[00:12:31] Speaker 02:
I think you did know about Judge Sullivan's opinion.

[00:12:34] Speaker 04:
Yes, we did know about Judge Sullivan's opinion, but to be perfectly honest, Your Honor, within three months...

[00:12:41] Speaker 04:
I will endeavor to do so.

[00:12:45] Speaker 02:
You're our friends, too, just like in the previous case.

[00:12:48] Speaker 04:
Absolutely.

[00:12:49] Speaker 04:
Absolutely.

[00:12:50] Speaker 04:
As I said, this order was issued in May 2012.

[00:12:54] Speaker 04:
Within months, within three months of that order being issued by Judge Sullivan, this exact same issue, the preservation of Site A, was being adversarially litigated before the Military Commission on a motion from the government itself.

[00:13:11] Speaker 04:
on motion from the government to the Military Commission asking again from the Military Commission permission to go ahead and destroy the site and create some sort of visual mock-up for it.

[00:13:23] Speaker 04:
And so at that point it seemed prudent and again I will be perfectly honest with the court given the lamentably low standards of Guantanamo habeas litigation it seemed not only reasonable but much more appropriate

[00:13:36] Speaker 04:
to litigate that issue in the Military Commission where we can talk about the centrality of that site, specifically to Mr. Albulucci's death penalty case.

[00:13:46] Speaker 02:
Let me ask just one more question.

[00:13:47] Speaker 02:
If you could point me to any place in the classified or unclassified appendix that explains why what remains of the site is exculpatory,

[00:14:02] Speaker 02:
not just relevant, not just might be exculpatory, but it's actually exculpatory.

[00:14:06] Speaker 02:
What page would you tell me to look at?

[00:14:08] Speaker 04:
Absolutely, Your Honor.

[00:14:09] Speaker 04:
I would say to begin at the classified appendix, page 2460, which is part of our submission to the Court of Military Commission's review.

[00:14:20] Speaker 02:
And is this the expert report, or is this something else?

[00:14:23] Speaker 04:
No, Your Honor.

[00:14:24] Speaker 04:
And those are also useful.

[00:14:26] Speaker 02:
What's the title of the document?

[00:14:27] Speaker 04:
The title of that document is Petitioner's Reply to

[00:14:32] Speaker 04:
government response to a petition for a writ of mandamus before the Court of Military Commission review.

[00:14:40] Speaker 04:
And I would point you to that, and I would point you also, if I may, Judge Garland, to AE 52A, which is, I believe at page... Say it again.

[00:14:52] Speaker 04:
I apologize.

[00:14:52] Speaker 04:
Appellate exhibit 52A, which begins at page 40 of the classified appendix.

[00:15:01] Speaker 04:
And in that document, if I may just briefly talk about that, because that 52A was filed in September 2012.

[00:15:09] Speaker 04:
It was over seven years ago.

[00:15:11] Speaker 04:
Over seven years ago, we made the argument that Site A was exculpatory.

[00:15:17] Speaker 04:
We knew that Mr. Albaluchi had been held there.

[00:15:19] Speaker 04:
We knew he'd been held there immediately prior to coming to Guantanamo.

[00:15:23] Speaker 02:
My question is, just to sharpen it just a little bit, why it's exculpatory over

[00:15:30] Speaker 02:
more exculpatory than the video.

[00:15:35] Speaker 04:
This site itself?

[00:15:36] Speaker 02:
No, no.

[00:15:37] Speaker 02:
Whatever the pages you're pointing to me, which I'll certainly look at, I want to know why they are more exculpatory or a different kind of exculpatory than the video alone.

[00:15:52] Speaker 02:
I mean, we are on the question, at least, of whether the video is a sufficient substitution

[00:16:00] Speaker 02:
And to show that it isn't, you'd have to tell us something about why the physical site would be different.

[00:16:07] Speaker 02:
Now one way would be if one of your clients said there's something at the physical site that isn't represented in the video.

[00:16:15] Speaker 02:
I didn't see any argument like that at all.

[00:16:18] Speaker 04:
If I may, Your Honor.

[00:16:19] Speaker 04:
Yes.

[00:16:19] Speaker 04:
It is not that our client

[00:16:21] Speaker 04:
said that there is something in the physical site that's not represented in the video.

[00:16:25] Speaker 04:
But in those 10 pages that I quoted to you, 2469 to 2479 of the classified appendix, we do go into great detail where we have identified explicit errors in that visual substitution.

[00:16:39] Speaker 02:
Now I know which one you're talking about.

[00:16:41] Speaker 02:
But the errors is not the question I'm asking.

[00:16:45] Speaker 02:
I don't know the answer to this question.

[00:16:47] Speaker 02:
That's why I'm asking you.

[00:16:48] Speaker 02:
Is there something?

[00:16:50] Speaker 02:
Yes, you say there are errors in the video.

[00:16:54] Speaker 02:
But the question is, are the errors exculpatory?

[00:16:57] Speaker 02:
That is, is what would be there but for the errors exculpatory?

[00:17:03] Speaker 02:
And is there a place where you explain, actually in this place there is X and it's not shown and X is exculpatory?

[00:17:13] Speaker 04:
So we do explain that in those pages, but also I think what we explain in some detail in the CMCR reply is the actual connection of the conditions of confinement at Site A. And just to back up for a second.

[00:17:29] Speaker 04:
referring back to 52 alpha, which begins at page 40 of the classified appendix.

[00:17:34] Speaker 04:
It's important to remember, and I want to answer your question directly, but it is important to remember, Judge Garland, that the CIA program, the most important part of that program was the psychological torture.

[00:17:52] Speaker 04:
It was not the physical

[00:17:53] Speaker 04:
torture.

[00:17:56] Speaker 02:
Again, I understand your argument, but I have to focus on the only thing that's before us, which is the question of do we issue an order staying the destruction of whatever remains.

[00:18:08] Speaker 02:
That's the only question in the end that we have to answer.

[00:18:11] Speaker 02:
Okay.

[00:18:12] Speaker 02:
So

[00:18:13] Speaker 02:
That would require some clear and indisputable reason why the physical site would help you in a way that the video doesn't.

[00:18:24] Speaker 02:
And I'm asking you to help me with that question by pointing to something in the record that shows that difference.

[00:18:31] Speaker 04:
Absolutely, Your Honor.

[00:18:32] Speaker 04:
And I can get you the particular page numbers for this in case I'm not putting them correctly.

[00:18:38] Speaker 04:
But the point about whatever remains of site A

[00:18:43] Speaker 04:
is to be able to, as any defense counsel would in any scene in which a crime had taken place or any acts, exculpatory acts had taken place, be able to gauge the temperature, the smells, the building materials, the use of sound, the ability, the sight lines, the ability to hear other people nearby,

[00:19:10] Speaker 04:
And I would point, that particular element, Your Honor, these are all psychological factors that were implemented into these purpose-built sites by the CIA for the purpose of maintaining the condition of learned helplessness in the Straubaluchi right before he was re-interrogated by the FBI for statements that they want to use to execute him now.

[00:19:32] Speaker 04:
I want to focus for a second on the ability to hear other people at the site, and I won't go further than that in an unclassified setting, but I will refer, Your Honor, to AE114R, and I will find you a page number for that in the classified appendix, where Mr. Al-Baluchi discusses that particular element.

[00:19:53] Speaker 02:
Okay.

[00:19:54] Speaker 02:
Thank you.

[00:20:05] Speaker 03:
May I please the court?

[00:20:07] Speaker 03:
If I may begin with Judge Sullivan's decision.

[00:20:10] Speaker 03:
Judge Sullivan authorized the government to substitute preservation in situ for this digital and photographic representation on the ground that it was sufficient not only to preserve evidence in the habeas case, but also in the military commission case.

[00:20:23] Speaker 03:
And he explained that that evidence was relevant

[00:20:27] Speaker 03:
in the habeas case for the same reason that's relevant in the military commission case, which is not because it's exculpatory, but because it can be used to enable the petitioner to challenge the statements that he made during his conditions of confinement as being involuntary and thus unreliable.

[00:20:46] Speaker 03:
And Judge Sullivan authorized the government to do so on the ground that this method of preserving evidence through a digital and photographic representation was sufficient.

[00:20:57] Speaker 03:
And he did so without even viewing Site A. Now Judge Pohl went further than that and he required the government before he would authorize the government to substitute preservation methods and dismantle Site A to provide to him the final proposed digital and photographic representation

[00:21:16] Speaker 03:
And he explained during Fort Dyer to all the parties that this was a two-year process, and that during this two-year process he required the government to make additions to the representation, including by, for example, adding cameras.

[00:21:29] Speaker 03:
so that the representation would capture even more detail.

[00:21:33] Speaker 03:
But I think the question that's presented here is not is it clear and indisputable that the representation is an adequate substitute because Petitioner has said in his reply on page six that he's not asking the court to rule on that, but it is instead in anticipation of that potential review

[00:21:52] Speaker 03:
If the military judge denies petitioner the relief that he requests, for example, suppressing statements that he made during his detention, is it clear and indisputable that petitioner is entitled to indefinite physical preservation of the site in order to conduct that review?

[00:22:09] Speaker 03:
And in the government's view, the answer to that question is no, because the record regarding Petitioner's conditions of confinement is preserved for appellate review, and that record includes detailed accounts of the periods during which Petitioner was subjected to enhanced interrogation techniques, and Petitioner was not subjected to enhanced interrogation techniques at Site A.

[00:22:29] Speaker 03:
The government has acknowledged in the Military Commission case that he was subjected to enhanced interrogation techniques, but not at Site A. The record will also include... Do we have to make a decision about that?

[00:22:40] Speaker 03:
No, Your Honor, but I offer that in case this Court wants to consider what's at stake.

[00:22:46] Speaker 03:
And then the record also includes reports, photographs, and witness statements of petitioners' conditions of confinement at CIA detention sites, medical, physical, and psychological assessments generated during his detention, summaries of all the statements that he made during his detention, CIA personnel who had direct and substantial contact with the accused, and it includes any results of investigations conducted in response to allegations about the CIA's former

[00:23:14] Speaker 03:
rendition detention and interrogation program.

[00:23:16] Speaker 03:
And it includes this digital photographic representation.

[00:23:20] Speaker 03:
And petitioner asked the question, how could Judge Poole have authorized the government to substitute these preservation methods without actually viewing site A.

[00:23:29] Speaker 03:
But Judge Pohl reasonably relied on declarations from the FBI in a pilot exhibit, 52W.

[00:23:36] Speaker 03:
And the FBI attested to the accuracy of the representation, and they discussed in detail all of the data that they collected, including 7,000 data points, 2,500 photographs, 465 laser scans,

[00:23:50] Speaker 03:
100 drawings based on GPS data, manual measurements, and blueprints, and five video segments.

[00:23:56] Speaker 03:
And that data has been preserved by the FBI and can be made available to this court for its review.

[00:24:02] Speaker 03:
So Judge Pohl, as I said,

[00:24:05] Speaker 03:
actually required the government to produce to him this final digital photographic representation before he authorized it.

[00:24:12] Speaker 03:
Judge Sullivan authorized the government to do so just based on the principle that this type of method of preservation was consistent with well-established standards of evidence preservation.

[00:24:22] Speaker 00:
What do you say to your opposing counsel's argument that those captures do not adequately represent sound, smell,

[00:24:31] Speaker 00:
that might be relevant with respect to enhanced interrogation.

[00:24:36] Speaker 03:
In rejecting that argument, Judge Poll explained in appellate exhibit 425PP that petitioner has available to him comparable evidence in the form of, for example, witness testimony.

[00:24:47] Speaker 03:
And he said that petitioner will have the opportunity to examine, either through direct or cross examination, witnesses who viewed the physical evidence at Site A.

[00:24:57] Speaker 03:
and that petitioner himself can testify about the sounds that he heard or the smells that he smelled.

[00:25:04] Speaker 03:
And the government has said regardless of whether petitioner testifies, the government is going to stipulate to petitioner's conditions of confinement in the military commission.

[00:25:13] Speaker 03:
So the government may even be willing to stipulate that the petitioner heard a particular sound or that he smelled a particular smell and even that

[00:25:20] Speaker 03:
The walls and the cells at CIA detention sites were made of a particular matter.

[00:25:24] Speaker 03:
Petitioner also has available to him expert witness testimony, and those expert witnesses can use the information that Petitioner does have, which includes drawings, measurements, still photographs, and videos to make reasonable inferences about what this additional information would have shown.

[00:25:41] Speaker 03:
Unless the court has any other questions?

[00:25:46] Speaker 03:
Thank you.

[00:25:49] Speaker 02:
Is there time left?

[00:25:50] Speaker 02:
We'll give you one more minute if you want.

[00:25:55] Speaker 04:
Thank you very much, Your Honor.

[00:25:56] Speaker 04:
I just want to briefly address my friend's point about comparable evidence.

[00:26:01] Speaker 02:
Everybody is friends here.

[00:26:03] Speaker 02:
This is great.

[00:26:03] Speaker 04:
We try very hard.

[00:26:04] Speaker 04:
We spend a lot of time together at Guantanamo.

[00:26:07] Speaker 04:
My friend's argument regarding comparable evidence, which, of course, is one of the Trimpetta factors.

[00:26:12] Speaker 04:
And Judge Poll relied on that in 425 double papa.

[00:26:14] Speaker 04:
The first point I want to make is that Judge Poll, and I will refer you to the briefs on this,

[00:26:19] Speaker 04:
was under a conflict of interest when he issued 425 double.

[00:26:21] Speaker 04:
It was under what?

[00:26:23] Speaker 04:
A conflict of interest, your honor.

[00:26:26] Speaker 04:
But he referred to three areas of comparable evidence.

[00:26:30] Speaker 04:
The first was witnesses.

[00:26:32] Speaker 02:
Witnesses about what happened at Site A. The conflict of interest is the one that was resolved in this court?

[00:26:39] Speaker 02:
Is that the?

[00:26:39] Speaker 04:
No, your honor.

[00:26:40] Speaker 04:
That was a different case.

[00:26:42] Speaker 04:
It was a different military judge at Honomal.

[00:26:44] Speaker 04:
Unfortunately, we had the same issue with ours.

[00:26:50] Speaker 04:
But the first issue, excuse me, the first example of comparable evidence he mentioned was witnesses.

[00:26:56] Speaker 04:
And I'd like to point out that the government has actually refused us access to every CIA official that we have requested as witness thus far.

[00:27:06] Speaker 04:
He also pointed to the availability of our client, and we have a copious amount of information in the record, including the declarations that Judge Garland referred to, from psychologists, from experts, talking about how when someone is subjected to torture, their memory is fragmented.

[00:27:27] Speaker 04:
The memory of Mr. Albaluchi is not reliable.

[00:27:30] Speaker 04:
We cannot rely on it.

[00:27:32] Speaker 04:
for his death penalty case as a source of comparable evidence for exculpatory evidence here.

[00:27:38] Speaker 04:
And the third is the issue of substitutions.

[00:27:40] Speaker 04:
And my friend had an impressive number of pages and records, which unfortunately I've heard before.

[00:27:48] Speaker 04:
And there are two points to make on that.

[00:27:50] Speaker 04:
Number one, recently Judge Acosta in the newly restarted Mishiri case

[00:27:56] Speaker 04:
refused to reauthorize, re-approved thousands of government substitutions using exactly the same method that we use in the 9-11 case, precisely because he found that the government was relying on declarations that were over broad and were out of date.

[00:28:14] Speaker 04:
And that is exactly what we have been arguing with regards to those thousands and thousands of pages that they have produced to us for over now nearly eight years of pretrial hearings, that those substitutions are not adequate substitutions, that we know that there is underlying information that is being redacted for the government's benefit.

[00:28:38] Speaker 04:
And we have argued that before the Military Commission,

[00:28:42] Speaker 04:
on the basis of, for example, documents that have been issued via FOIA that are less redacted than the documents that we receive at the Military Commission.

[00:28:50] Speaker 04:
And so Your Honor should be aware that when we talk about comparable evidence at the Military Commission, we submit that there is none for this site.

[00:28:59] Speaker 02:
All right.

[00:29:00] Speaker 02:
Thank you.

[00:29:00] Speaker 02:
Are there other questions for the panel?

[00:29:01] Speaker 02:
No.

[00:29:01] Speaker 02:
Thank you all, both sides.

[00:29:03] Speaker 02:
We appreciate it.

[00:29:04] Speaker 02:
We'll take the matter on this mission.