 Good evening everybody. My name is Mike Ennis. I am a director of the conflict records unit. I have to state up front. This my affiliation with the with the war studies department at King's College London. I'm an honorary visiting research fellow senior visiting research fellow in the department. By day I work for the UN I'm here in a personal capacity. Personal and academic capacity. This evening's talk is with Doug Cox on the subject of battlefield information conflict records as evidence. Just a few housekeeping points and then I'll provide a few introductory points and then hand over to Doug. The talk will, Doug's talk will go for 20 to 30 minutes roughly and then we'll have some time for q amp a afterwards for the q amp a just use the q amp a function. I'll post your questions and I'll moderate those and then I'll, I'll verbalize those and then Doug can engage with them. The, this is a webinar that is being recorded and it will be posted on the war studies YouTube channel, which is a great channel, lots of lots of really interesting material on there. And this will be joining all the other material that the department puts up there as well as with the conflict records unit has up there. This is the ultimate speaker event. We have one more in March on the 17th March with Michelle Caswell. So, I think with that, I'll just focus to on a few basic introductory comments about Doug and about this evening and about my interest in in Doug's work and what Doug's going to be talking about. I was a law library professor at the city University of New York School of Law that's still current. I've got that right. Yes. Yep. Also a practicing attorney, if I got that correct. Yes, and formerly a US Army intelligence officer as well. And you led intelligence collection teams document exploitation type teams in. I was mostly focused on signals intelligence. Okay, that was which was done both some states I'd some on deployments. Okay. And Doug is also importantly I think Doug's also published quite a few important articles that are really worth your time. And they've been really influential in shaping my own thinking about, you know, the wide world of conflict records it's you know, conflict records that it can mean a lot, you know, a lot of different things, but conflict records document exploitation battlefield evidence and information captured enemy documents. There's kind of a wide world of issues that's sort of implied under this rubric so I'm really interested in what Doug, what Doug has to say to this this evening, and without, I suppose, taking too much of the of the of the spotlight. I'll hand over to you Doug and and looking forward to everything you've got to say. Over to you. Thank you very much. And I want to thank Mike for and the conflicts record unit for inviting me and also a special thank you to Mike for suggesting this as an appropriate topic for today. This is an issue that is obviously the issue of the use of battlefield type information in court cases is not a new thing ever since Nuremberg captured records were utilized as as evidence. And that is quite timely, and I will sort of circle back to this but there's been a sort of a flurry of activity recently in the past few years with the EU with NATO with United States with United Nations, focusing on the issue of using battlefield information of various types and facilitating its use in criminal prosecutions of foreign terrorist fighters, and I will come back to that as I mentioned. I wanted to start with this I just want to sort of hit three things and sort of in my presentation. One is I want to sort of introduce the topic and some of the issues that arise with the use of this type of information as evidence by starting with a Nuremberg hits the road example real world example of this type of information being used in the court case that I think illustrates both how this type of information can be a compelling and unique form of evidence. But I think it also illustrates how we need to be careful with it and there's some issues that can arise in those contexts that are that are also unique and create unique problems. The second thing I want to cover is just talk a little bit about the different phases of this process from the first phase being the collection of this type of information and the different forms that can take the last phase being the use of this evidence in a court case. And then I think both of those get a lot of attention but there is this sort of middle phase that is a little bit less transparent it's more opaque it's a little bit of a black box and I think that that is an area where there I think there needs to be a little bit more emphasis and there are some experiences that I've seen in that that I think are relevant sort of how we should address those. Finally, I want to circle back to sort of some of these more recent developments and activity surrounding this issue and hit some of the sort of bigger picture questions that are being discussed right now such as questions of like with this kind of evidence being used in court so this is the sort of thing where we need special courts and special rules and special laws and specially trained judges, or is this an area where the special judges and normal courts and normal rules are sort of up to the task and that we should rely upon those and some related issues as well. So with that, let me start off with, I'm going to share my screen with just a few slides. Just to illustrate and talk start from an example of using this sort of information. So, this example is real world and I shouldn't have to say this but I'll just clarify of course everything in here is publicly available information and doesn't include any classified information from those cases beginning in 2005 I represented detainees in Guantanamo in their habeas corpus litigation so it was the civil litigation side of that litigation. And there was a significant quantity of battlefield information that was utilized as evidence in those cases. And so we got sort of a firsthand look at some of these types of issues and I want to just sort of present one of those examples of one so as background to this. You may recall or you should recall the, when the US sort of operations Afghanistan that were individuals captured in Afghanistan people arrested in Pakistan. They were held by US forces and approximately 900 of them were then transferred to Guantanamo. Shortly thereafter, because the sort of raised the rule of law questions were they being sort of hidden there is it where the sort of were they taken to Guantanamo, because it's sort of a legal limbo. There were was a habeas litigation filed the detainees were in Communicado. So the cases were sort of authorized by family members who believed they had a son there. The government's response was initially that these cases don't even belong in this court that these are wartime armed conflict detainees. They're outside the territory of the United States. Therefore the the court doesn't even have a jurisdiction on this. That went all the way up to the US Supreme Court, US Supreme Court found that these detainees do have a right to file habeas cases in US Federal Court. And it was at that point in 2004 that the government first was sort of forced to put forward evidence to support their detention. This came in the form of a variety of sort of unclassified descriptions of the evidence that they had and I just want to use one of them that came up in a number of cases. Detainees full name and phone number were found on a seized computer which was associated with an al-Qaeda operative. So this was initially part of a court filing and this was a unclassified description one of several pieces of evidence being used an individual case. And this is sort of an illustration of a type of battlefield information where some some computer was seized in a place that was overrun. A computer was was taken it was exploited. Everything was sort of pulled out of it even information that would have perhaps been sort of superficially deleted. And then this information came out and then was used in for military intelligence purposes and then it comes forward as a form of evidence in the Guantanamo litigation. And there's also a piece of information that seems it's very specific. The fact that the specific detainees name and phone number were found on the computer when al-Qaeda operative is a particularly sort of compelling piece of evidence right. So this was just one piece of it now at this time. It was still the case that the government's position was even if they have the right technically to file the case in court. They have no substantive rights underneath it to enforce. And so they put forward on the public docket the unclassified allegations such as this supported the detention, but the underlying material they said was classified. And so no one had access to it. They accept perhaps the court if they specifically requested it. And this then caused an additional skirmish between the attorneys and the government about if they can if they if they are able to file a court case, they need to be able to meaningfully participate in it, and we need to be able to meaningfully participate in on their behalf we need to be able to visit the clients, we need to be able to have access to the classified information that's being used against them. The government objected to this. Ultimately we prevailed on these points. And so it started a process of one facilitating initial visits the first visit I went down to Guatemala was in January 2005. And we went through a the security clearance process. I had a previous security clearance in one I was in the army, but I had to go through the whole process again for purposes of this to get access to these sorts of materials. So, what I'm going to show you next is from a public docket that is ultimately when there was found public docket and I redacted unclassified form of the evidence underlying this allegation. So the a few points here is one, this is not sort of the document on a computer itself. This is an US intelligence report about a document on a computer. And it says subject lists the mood to a dean fighters named aliases and family phone numbers captured in Pakistan. A couple other things to note here. A warning this is an information report not finally evaluated intelligence report source information from this report was obtained from blank. Alright, so this is an unclassified version. And I specifically pulled one of these from the one that was not my case. Just so that we're staying with everything that's on the public docket. And then it eventually has a portion in it that lists a detainee's name and notes a phone. Now, pause here just to mention, you know, a follow on effect of this, which is another issue about this so this is classified evidence the attorneys representing the detainee have access to the unclassified or the classified version. So what's defined in sort of the redacted unclassified version is also marks the limits of what a detainee attorney would be able to share with the detainee in order for the detainee to participate in their defense. So, or participate in the case. So there was sometimes like there's just limited information it becomes very sort of tricky to sort of even get some information that could be useful in the case. The other aspect of this being sort of an intelligence report is also something that arises in some of the discussions about the use of battlefield information, which is the idea that sometimes the idea that it so long as you get the evidence, then the evidence will sort of explain itself and will take care of itself and that's enough, but it is often the case as is here that you need contextual information to make that evidence useful. And so here instead of just a plain document it is an intelligence report that adds in that context of all where was this found it at whose house was this found, etc. Now that this can be, as I've said sort of a compelling piece of evidence but when you start digging under classification. Then you start to see more nuance and when we ultimately and now I will transition to the ultimate opinion by the court that evaluated this piece of evidence which should reveal some additional information in a classified form, which is that this list of captured fighters, the court notes, while on its face, these could be a fairly compelling piece of evidence. But when we start adding in additional details and more information received from the detainees and others, the value of this information decreases and in particular, the court notes that two of these documents were published on the internet or in newspapers. So, and the additional piece of information that that sort of sort of explained this document, which was discussed in unclassified form by the court is that the detainee himself testified and others corroborated that when they were arrested in a foreign country, they, there was an individual that came around that they thought was a correctional officer that actually asked for their full name and their family phone number, and then said, I'll try to get this to somebody so that people could contact your families, and you would be able to then so that they could know that you're detained but that you're okay. So they gave names, they gave phone numbers, this was then published locally in a news report, and then it was picked up by various places and then existed on the internet in several different places. And then the, the al-Qaeda operative, whoever it is, then looked at this and downloaded this from the internet. What starts out as a particularly compelling piece of evidence that would seem to show a very close relationship between an al-Qaeda operative and a detainee then becomes something that's a lot more attenuated that a al-Qaeda operative downloaded a document from a news source or from an internet site. And that is why it's on his computer. And then it doesn't mean it's completely irrelevant. It could be that the fact that he downloaded this list means that he has some sort of interest in the people listed there. An interest potentially in this specific detainee and maybe there is some sort of relationship, but ultimately the court sort of balancing all of these issues says when we look at all of these details. The piece of evidence is not truly sort of probative of the question before the court and finds it to be sort of much less useful and not very persuasive. So that's an example of sort of the tricky nature of sort of thing where the original allegation when you go back to it, all of that is entirely accurate based upon the classified evidence that you was then declassified, but it's a lot more nuanced than it first appears here. All right, so that's one example that I will return to this for the moment. I'll return to it. The second thing that I wanted to sort of focus on upfront is just talking a little bit about sort of the phases of this process. Right. So, the first phase of this process from battlefield information to court is the sort of collection of battlefield information itself. And this is something where the traditional problem of course with battlefield information is the haphazard nature in which it's acquired. So, in this captured records and related records it was a conference in the 60s about Nuremberg and the use of captured records. This was by Telford Taylor who was one of the prosecutors in Nuremberg, and he was describing as one of the primary problems the prosecution was that all of their evidence collection was he called it parasitical that we had to rely upon military intelligence units that were pulling documents for military intelligence purposes, there were interrogations that were done for intelligence purposes that are that that sometimes are useful, but sometimes they also did not contain things that we were prosecutors and so that's more of a sort of a Venn diagram where there's some things that for intelligence purposes might be useful but there are other things that are sort of missing from this process. So, there's also the problem of sort of things sort of being grabbed sort of willy nilly in in a sort of chaos of an armed conflict it's a one of the phrases that is used and in fact used by the court in the case we were just looking at, talked about sort of things being buried under the rubble of war sort of context that is sort of disappears and will never be found as well. In the past decades and recently there has been a greater emphasis on this first phase of collection in terms of creating better training, better techniques for improving that part of this process and incorporating often sort of police forensic techniques in order to bag and in order to exploit electronic material that you have to take fingerprints off of remnant material that helps keep the as much context as possible helps preserve sort of the chain of custody and contemplates the idea that some of the information that's being seized that might be useful for military intelligence purposes might also be something that will be used and it's contemplated it's possible use as evidence later on. So, extra special care is taking with those. And these sort of things sometimes you'll you in sort of policy and training things they're called sensitive site exploitation. There's a lot of sort of training manuals and sort of guidance on this. So this is something that has sort of been developing over time and it is, and in sort of recent discussions about this. I just talked about a well should this be should we have specially trained military doing this should we have more involvement by law enforcement should there be an international cadre of specialists that sort of approached these sort of places, assuming sort of security considerations permit in order to sort of do their work to sort of really capture the documentation and context that makes them appropriate for use later on in court cases. There's a lot of ways that gets a lot of emphasis as it should. The last phase is sort of this. The end of the usage of this material in a court case. That's where you get sort of all the lawyers involved it's like okay well let's look at these issues of admissibility and evidentiary standards and what sort of procedures could be utilized for authenticating information and ensuring that we can make sure that the chain of custody has been protected throughout and this is now sort of a piece of evidence that this court should accept and what and when it is in the court what sort of weight should be given to this sort of issue. So this is another area this is the other phase where there's a, there has been a lot of emphasis and I think that there will be. There will be a sort of unique sort of granular and media legal issues that I think get lawyers excited and so I don't think there's any risk of this phase sort of being sort of ignored. And I'll come to some of the other recommendations that have been made recently about about those in a bit. But the thing that I want to flag here up front is also this, the phase that's in between those two, which is a bit an opaque black box that is there where there's a lack of transparency which is you get these materials and then they are collected together. And then they go into some sort of pool and this pool could be a database it could be multiple databases and then some person or some team is then taking certain of these things but not all of them. out that are then being identified for possible use as evidence in a case. Right, and this is one of these things that sort of doesn't get focused on but from my experience in the sort of wanton will litigation. So this is sort of the crux of some of the sort of legitimacy issues of this sort of arc from collection to use in court that I think needs a little bit more attention and perhaps a little more clarity and consistency. So just to give you an example of this so this is a different type of access issue. In the, in the first example, there was an access issue in terms of this is evidence that has been proffered. And there's a question about who has access to an unclassified version of this who has access to the classified portions of it or an unredacted version of it. But this is something that was put forward by the government or in an analogy in a by the prosecution. So there's the other question like well what other information is there that's relevant to this so for this example I'll give you another one from one time, which is when we got to the point of the government providing the classified evidence. You start by declassifying the detention of the teams, you go to a secure facility, and you open your file, and there is the classified evidence that the government is relying upon. And you start going through that and it and, as I mentioned, a lot of this consists of battlefield type information which could be battlefield interrogations could be documents that were found computer data. There's something about pocket. What did they actually have in their pockets at the time they were captured right. But let's take an example where there is an interrogation report of a another detainee, and this other detainee says. Oh yes, I know client number one so that client once filed here. So client number one. Yes, I know that guy, that guy is al-Qaeda. I in fact was with this guy in a tunnel in Torah Bora at the time Osama bin Laden was there. And at the time we were fighting against us forces and the Northern Alliance. Alright, so you have this report. And that could be the only thing from the detainee and the only thing to go on in that file. And it creates a sort of a tricky situation because if there were the situation where this was a sort of a standalone prosecution or standalone case, then that might be the only thing that the government has given you. And if you were in a situation where okay well how do we evaluate this information right, how do we, how do we find out more about this other detainee is this other tiny reliable is there was this detainee mistreated was this detainee promised something is there any other evidence that might suggest that this other detainee is a is an unreliable source, or does it turn out that this is a very reliable source and this is very strong evidence that that undermines the our own case. Now, if you were to have only one case, and with only that you went forward to the government and said hey we would like other information about the detainee that is interrogated in this derivation, the government will say no. And if you took it to the court like that I can rehearse for you exactly what the government attorney would say would be like your honor. This is outrageous. The detainees captured in an armed conflict, we shouldn't even be in court but we're in court. We have now given them classified information the relevant classified information, justifying their detention in this court. And now, without any inkling or just pure speculation, they are now asking to undertake a fishing expedition into highly classified government files in the hopes that they might find something that would support their case where they have nothing to go on. So the court should deny any request for discovery or does not request for any additional documents. I have to say, that sounds to me like a fairly persuasive argue. Right. So, in that case, let's sort of get get get get stopped at the at the beginning here now in certain prosecutions and in the US and both state and federal court there are certain obligations on prosecutors to provide information that they're aware of that could be of an arbitrary nature. That you know if they're aware of something that would seem to undermine their argument, they often do have an obligation to provide discovery and disclose those to the defense. Although if you put a defense attorney in a prosecutor room and have them argue about the proper parameters of that and whether or not prosecutors comply with that or they don't, it could end in a fist fight. But it is a, there is a principle out there right. But in, in the Guantanamo litigation, one aspect of it was that it was a sort of a unique situation where there wasn't just one client here and one client there, there were 800 detainees. There was a desire by sort of the attorney teams are working on this to try to ensure that any detainee that wanted an attorney could get an attorney. So cases were brought on behalf of many journey so month the team that I was working on we had 14 detainees all of them from yet. So we didn't just have file number on on client number one. We started to look at then you open client file number two and number three and number four and number five. And then what you start to see is a wait a second. Now I've got some information here in client number one file, but I found stuff in client number six, seven, nine and 13 additional information that seems highly relevant to client number one and vice versa, including you might find an example of the detainee accusing or saying that he was with client number one at Torah border at a certain time, could also be saying that client number six. He was also with that guy at around the same time but they were in Kandahar or they were in Kabul or they were somewhere in Pakistan. So you sort of piece these together, and you're like, well, wait, they're now that I have access to more information. Some of this is starting to not make sense and it starts to sort of form this sort of a greater structure of like what what are the other documents that might be out there and putting in a much stronger position to go back to a court and say, Hey, they said this was all the relevant information but now we're finding this other information that we view as undermining their argument and they didn't give that to us in these cases. There's got to be more of this. There was also as part of that sort of a an even larger skirmish about, well, the government's taking the position that this is what we have the need to know under our security clearance, when in fact, what we have found is that we have need to know information that is in other cases. And so then you eventually had a situation where you had sort of the secure facility where government records in all of its different cases were available, all of the sort of forms of battlefield information that when you start comparing notes, oh, do you have a client that's on one of those lists, oh, do you have a client that was accused by this, that when when you start creating the larger pool these documents it's almost like sort of reengineering the database on the other side that they're pulling from and some of us would argue that there's a cherry picking from, and then we're trying to reconstruct a bunch of that on the other side and then find the connections and find sort of to evaluate their evidence with with more clarity. So this was, so this is another example of just this issue of who is choosing the evidence, and what it is, and what is it string. And this is so this is also something that is can be a little bit unique to these types of information records so going back to the the initial example of Nuremberg for example the Telford Taylor's piece, one of the points that he makes is just this one which is the prosecution initially went and said okay we have this evidence against these defendants, and the German lawyers then said, yeah but what about the other evidence, and he describes this is one of the central problems describes the way he phrased it is the Pentagon was really surprised by shock by and was not keen on the idea that the German lawyers were asking and would be permitted to as he phrased it play ring around the Rosie in a bunch of DoD files that might be relevant to this, the prosecution and the defense. And they said how was in part resolved is that instead of having them somehow have access in the United States, sort of the main bodies of things copies of those were sent. And were made available to those attorneys to review to see if there was additional evidence in that pool that was relevant to their defense of their clients right. So this using captured records, another research topic that I had worked on before is sort of the legal status of records that US forces captured in Panama, in the invasion panel on 1989, that were then used in part, and to prosecute Manuel Noriega in US report, mostly on drug charges, but there was a lot of the capture records that we use. Similarly in that situation, the Defense Council were saying, the government is cherry picking a bunch of material from a panamanian records, and they're just sitting on these in a giant facility down in Panama we should have access to those and ultimately they did get access to at least a significant portion of those records for them to go through to find potentially relevant evidence. So, it's an illustration of sort of this sort of issue that arises in these context. So the last thing I just want to do is then now circle back to sort of some of these more recent developments and I and just for purposes of visuals I can just share my screen and just show you a few of these. There is a number of the memorandums which are very easy to locate if you Google battlefield information and evidence you you will instantly get on your screen a number of these more recent developments. The US has a memorandum on battlefield evidence, a DOD DOJ non binding guideline principles and use of battlefield evidence and civilian criminal proceedings. Abouja recommendations from the global counter terrorism for forum that goes through these sorts of issues. The United Nations guidelines on these. And so there's a variety of these that are covering a lot at the same ground although there are distinctions between them. The main focus on these and it's sort of interesting that sort of almost exclusive focus on some of these is the issue of foreign terrorist fighters so the so the issue here is individuals that leave their home country. They travel to a conflict zone such as Syria or they travel to another country like Iraq or elsewhere. While there they may participate in armed conflict they may participate in terrorist acts they may participate in war crimes they may participate in other sorts of criminal activity, and then just as quickly as they went there. They leave and return to their home country so it creates a situation where there could be evidence of their involvement in criminal activity that is in the possession of military forces intelligence agencies. The United Nations in that area but they have no control over the person. Meanwhile, the person is back in their home country and their home country. Government might be unaware of the activities they were involved in or they might be aware of them but they have insufficient evidence in order to sort of bring a charge against that individual. So these guidelines generally are talking about sort of greater cooperation. In order to share this sort of information, and including, you know, how do we get to information that might be in the hands of military authorities or intelligence authorities, and get it to a prosecutor a national prosecutor in a way that can be utilized by that prosecutor as sort of admissible evidence at trial. It's consistent with sort of all of the sort of the obstacles that you have there and what about problems of some of the information is classified or the source or method of how was obtained is classified. And what about, you know, are there any restrictions on admissibility of things coming from the military. The other aspect of this is sort of these different sort of papers and discussions of this issue have not sort of been unanimously thought to be a good thing. There is also the special report tour for protection of human rights, as a people 2021 paper on sort of her position on some of these efforts, including things like being concerned that they're called guidelines when they really are sort of, which seems like it's a more a stronger piece of almost soft law versus things that are sort of at the discussions or general level. And a few things that I would say about this, a couple things. One is what I see in these materials and what's being sort of contemplated by this as somebody who is sort of looking at it from the sort of an academic standpoint of focusing on things like captured records right that they are, they're doing a very positive thing in terms of sort of focusing on sort of that collection process and the sort of issues having to do with admissibility, but I think that I also feel like there is sort of a connection to the some of the examples that I've given you that creates sort of a unique problem here, which is that the sort of pool of these materials from which evidence is being drawn creates a unique situation where the person controlling that information might not be the same government that is doing the prosecutor. And so in my example of the Guantanamo cases where, or in the in the Nuremberg example where the prosecutor is also the one or a related government is the one that has these materials, so that access to them could be granted. Here you have a situation where you potentially have sort of cherry picked information that's being used, which potentially raises fair trial concerns and sort of access same level of information. The special reporter, one of the things that she raises is that there are references throughout all these documents to sort of the fair trial concerns and there's sort of references to them in passing, but that they don't necessarily feel like those considerations have been sort of baked in to these procedures, and there's a sort of a lot of work to be done there. The final thing I will say is that, especially in sort of in the US document. There seems to be sort of a suggestion that a lot of these sort of recommendations and things are based on sort of the US's experience with these. But then I find that hard to reconcile with my sort of experience with that and what and what I what I've seen in terms of especially in terms of things like, should there be special rules do we need special rules for classified information. We need special training for judges in the US experience. The most significant modern and still ongoing example of battlefield information being used for criminal prosecution of accused terrorists is the US military commissions process which has been sort of a mess and more than two decades after 911 the main 911 defendants are still sort of migrated in pre trial considerations and there has been no trial. And that is of course, they the problem that some of the battlefield information obtained that the government had wanted to use directly or indirectly is information that was obtained via means that at least violated international law and published constitute crimes in terms of torture and cruel inhumane and degraded treatment. So in contrast to the US experience which is the most effective and efficient prosecutions of terrorism suspects in the United States have been things that have happened in normal courts with normal judges and normal rules of evidence in the federal court system. They also tried and true standards, they recognize as the judge did in the one time the case that there can be some sort of unique issues here, but they can adjust to those they handle everything from complicated civil trials to very complicated criminal trials to financial complications, and they they they're more than up to the task to sort of handle these issues and so that's a final thing that sort of raised by the special reporter is, is there, are we saying now there's a special problem here, and special rule should apply. And is that really consistent with what isn't as necessary or should be try the normal path to ensure that sort of all of the normal fair trial considerations are counted. So I will end my introduction on that. So thanks that was really fascinating of course I think I think everything our speakers say is fascinating anyways and that's why we have have the speakers come to talk about these things but I'm really intrigued by by a few specific points raised in your in your talk. And I think before I suggest my questions I'll just remind the attendees that they can post their questions in the q amp a function. I see one or two names that I know, and others that I don't. But I hope to know, I get to know them eventually. I see Matthew Ford who was our last speaker, one of our last two speakers who dealt with a lot of these issues from a more theoretical theoretical and critical perspective. And so I'm expecting to see some some interesting provocative questions no pressure. I suppose I'll kick things off with with these these these might be sort of peculiar kind of questions but I guess as a as a non lawyer somebody trained as an historian but he's worked in some of the same environments that that you've been talking about. I was intrigued by the examples of documents that you showed us at the beginning of the talk, going from an information report that wasn't a finalized intelligence report, which to my historians mind would actually make it more valuable because it's closer to the original source. And, you know the validation as an intelligence document would take us further away there's more applied judgment more analysis, but actually gets us further away from the, the nuggety detail that maybe historians will be looking for in primary documents and I guess I one of the things that I've been, I've been sort of playing with again not not coming from, you know legal training but historians training, or we used to thinking about primary and secondary and tertiary documents, really primary and secondary documents. And how that meshes or doesn't at all. Depending on your point of view with with the wider world of documentary evidence, and where that fits with what we're talking about you know when we're talking about battlefield evidence and battlefield information. And I'm just wondering if I mean without putting you on the spot and turning this into a talk about documentary evidence. I'm just wondering if you if you could possibly address that is there is there a common ground between you know the historians interest in primary secondary tertiary documents and you know what that means in terms of you know the, the further you get from first observed detail or first recorded detail. You know, is there is there some common ground between these two kinds of ways of looking at documentary evidence or are they irreconcilable I know there's a there's a thread in the there's a thread in the academic literature on forensic history that deals with this. And that's not really the focus of our talk but I think it's implied that there's a strong implication of this. And some of what you're pointing out by looking at these kinds of intelligence documents, and how they're sequenced in terms of, you know, at what point in the process, they're understanding what it is that they're looking at versus. You know, actually capturing information, we're documenting the information as it was in its original form. Yeah, I guess it's more of a provocation and a comment and a question but I just wondering if you could maybe address. So I raises a number of issues that sort of came up in the case and that I've sort of struggled with in other contexts as well, which is you know there is an interesting thing which is, you know, the intelligence report being sort of unfinished and it's sort of here is just here. There is something to that that also, there have been situations where there's been information that sort of the argument is that it is actually more. Something could be more reliable because there's also a built in an incentive for the person creating this documentary is working in military intelligence to be as accurate as possible because they are serving a larger interest. There, there, there was, in terms of the sort of and I'll start with I'll come back to this week the evidentiary point but in terms of the types of information so this was something that I remember the moment of seeing some of these documents for the first time and I was like, wow, is again having been in the army having been involved in intelligence collection and the creation of intelligence reports, like my view of my, that part of my mind about an intelligence purpose and then my part of my mind about evidence that they don't mesh very well because from an intelligence perspective I had always, you know, the threshold for when you send a report is not particularly high, because and it's by design on the idea that, you know, you're sending a data point into a larger, a larger structure, and it could be that the information that you put into it when combined with other things could make it more significant, or it could turn out to not be. It also when the person is sending an intelligence board there also is sometimes it's caveated on it and sometimes it's just understood that the consumer of this will understand that this is the information we got, but this information could turn out to be inaccurate, or it could be misleading or somebody could have intentionally given information that was misleading to sort of undermine the intelligence process. So that was so the idea of that being sort of used as evidence was was a bit confusing at first. And I will also say one of the things that is mentioned in some of these documents is the need to educate judges about these types of materials and sort of reading the documents I interpret that as being primarily looking at the idea of like well we can educate judges and some of these national courts about what is what are all these intelligence processes that we do and in order to sort of build confidence in the use of them as evidence. But I also for Microsoft is like, oh yes, we need to do some training. If we're going to train and we need to look at all the different sides of it. And this was a, this was sort of rehearsed in miniature in the one time location so one of the very first exhibits on the government side was a document drafted by the Defense Intelligence Agency that was literally called intelligence 101. And it walked through all of these things about well this is how intelligence is collected these are the different actors in SIGINT and human and this is all there's the intelligence cycle and they walk through for for 10s of pages, and it, all of it is perfectly accurate. But then the way that it sort of then gets used is sort of then the DOJ on top of this is then sort of puts the gloss on an air go. These things we should be able to rely on yes, there's pieces of this that are either unfinished intelligence but there are things that are part of this process and there's quality control that goes into this, and all these layers of review. We should be able to feel comfortable relying upon this. So the detainee attorneys also then did a similar form of education in the other direction by one of it when one that was used and we used it in ours was a declaration that some of the attorneys got from a retired senior CIA person that was in operations in East Asia. And he did this very detailed declaration being like, you, here's what you need to know about this pool of message traffic that is in this you know the unfinished reports are about all kinds of things, and the sort of level of the threshold for sending them as I imagine is low and the quality of a lot of this is low and so he used some examples and of this whole declaration had to be sort of done through pre publication reviews and the CIA to ensure it didn't include classified information, but include the things like, there is a report in that same system that says somebody saw Osama bin Laden on a US Naval base in East Asia and he was at the Navy post exchange shopping. And he said, you know, this is in that system, there's another system saying there's going to be an attack on a military base in a country in which the US has never had a military base that and it was making it especially after 911. There was a push towards reporting everything on the fear that something is going to get lost, and that somebody's gonna get blamed for not raising an alarm about a threat in one of these reports. And his larger point is that yeah if somebody goes through and wants to cherry pick pieces of information out of this they can sort of do that in order to support a narrative, you know, any narrative that they choose there might be some support for it in that system. But in terms of the evidence, you know, the general focus of evidence in court drowsy is something that is very direct. Is there a person, you know, we want this person to testify we want this person's direct eyewitness testimony and then this also goes to, you know, the rights of examination and so that the both sides can both sort of question that person and even though and I guess this sort of gets also into the sort of academic things you know the the idea of memory and people's recollection of things is actually in some ways less reliable than perhaps sort of things that are taken into a specific time and place. And that was it was closer to the actual events. There is also this other issue of sort of hearsay, and that this raises a lot of from a legal perspective in terms of somebody saying what somebody else said, rather than sort of a direct evidence of it. There are a number of, you know, exceptions to that in situations where there is high probability that the person that's reporting the information would be as accurate as possible in doing so. So there's somebody calling 911 and they hear somebody say something and they're in an exit circumstance. They're not going to be sort of trying to come up with something. Sometimes hearsay can be allowed in those situations because simply because the that when you look at that totality that situation, that reporting of what somebody else said somebody else said is more reliable because of the circumstances and I think there is definitely something there and in terms of some of these reports talk about like the importance of or the that some countries need to consider sort of making changes to their evidentiary standards to allow classified information or change evidentiary standards to allow certain types of information from certain types of sources. But the, and it's often looked at sort of as a light on and off switch in terms of like is something admissible or is it not when some of the experiences have been that some of the courts may allow something and recognize that it's not necessarily the best evidence or that it's it's not wasn't created under ideal circumstances, but that that that question should be more sort of the weight of it that they might give this evidence not whether they would even look at it at all. But that is, but yeah, as a story and that's the that's the other part I would just just end on is the other part of, I'm always in favor of techniques and greater collection and preservation documents, whether there that's our intelligence purposes or prosecution purposes in part on the expectation that those sorts of materials will also be preserved for sort of historical research when somebody finally returns back to consider these issues. So, I mean that's that's a pretty good cue for some of the other questions I have but of course it raises more. I guess, I'll follow up with with something I mean you, you, you over the course of your talk you talked about a, you mentioned specifically measures to make this kind of information more credible that have been implemented over time and actually, I think you were talking about forensic specifically but there were the introduction of forensics into, say Doc X, or domex practices, you know bring bringing that in. You, you, you, you addressed it a couple of different ways one is authoritative framing. You know this this is, you know, these are defense department documents therefore you should take them more seriously that sort of thing. And of course then there's the kind of socialization of battlefield information battlefield evidence through the, you know, sort of formalization and institutionalization of its use or potential use in criminal proceedings. And then you've got forensics introduction of you know techniques approaches methods techniques to, to better preserve contextually and in its entirety this is kind of information in its original form as it was found. And I just, I guess, the question that I, that I, that I've been asking in thinking about forensic history and forensic various kinds of forensic ways of thinking about things forensic aesthetics, as one academic has has put it. That's that's emerged, you know, since really since the Second World War, as a way of looking at these things as they become sort of prominent and public issues. And I guess it goes to your black box problem. And on the one hand, and I'm wondering if there's attention here you know on the one hand you have this thinking that you know bringing in forensic approaches should be could be should be kind of the default setting. Because while we're doing one kind of research, it may also have applications or it may at some point have to be used or should be used in a court of law. On the other, on the other side, you've got kind of what you know this black box black box problem that you told me about that introduces kind of a visibility gap in, you know what should be a transparent process forensics is about being able to track when and where and what exactly is the sampling of evidence and you've got kind of this tear line forensics, which seems to be sort of contradictory in terms in how it's applied and I'm wondering if it discredits itself. So on the one hand is it more credible or less credible to be bringing this in as just kind of a big question, question mark for me and I'm just wondering if there's attention built into this mean, I think clearly there is and just, I suppose I wonder what you think of that. I hadn't looked at it from sort of, I think it's interesting. I, like, I wonder whether I have often wondered whether there's a, whether there's also a tension between sort of the normal uses of the the collection I wonder whether, for example, is intelligence collection somehow, does it remind in part or the intelligence purposes of it if the main focus is sort of a forensic model that is sort of looking if there is looking too much at it towards what could this be used as evidence, right, or is that sort of a movement of resources towards that goal versus a usage from a, a broader usage for sort of intelligence purposes and whether they're going to whether US forces would think that like they're diverting resources for the one thing when they really should be focused on their primary responsibility. Military. And you know I wonder. Yeah, I mean I. Yeah, I'm not sure that I have a great answer to your, your, your positive there I mean it's. I do, and I do feel like also they, you know the black box is also what is this, what survives on this black box later, and what sort of meaningful access will there be down the line and I you know I wonder whether, you know the there's something coming behind if he, if he seen something that is, there might be forensic information of a very specific type and as to very specific things but I wonder whether there's something lost that is sort of a wider variety of types of material and reporting the material that at the end of the day could end up being sort of more useful for for research but I think this will this will be a good question for you and I to keep probing I suppose. Later, you know it's one of those things that's swirling around and I'm not sure if there's a definitive sort of point on that but it's worth definitely worth exploring. The black box, you know you're talking, we're talking about a kind of a closed system that's not, you know, part of it, as you said it's opaque it's not meant to be by design sort of closed and not open to everybody so. So that creates a problem of verifiability I suppose. I'm just thinking of sort of a parallel kind of black box if you will, in terms of technology approaches, especially recently, especially in some of the documentation, the guidelines that you cited, where you know you're dealing with battlefield information and like other kinds of information, the plague of the last you know 1520 years is volume. There's so much of it is how do you deal with it. And so you got a different kind of box where a lot of this is being pushed in, sorted sifted and then meaning is being extracted, or the relevant datum is being extracted. And I just, maybe there's another sort of interesting, I guess, parallel sets of boxes where things are rendered opaque in an effort to make them more meaningful. But again, is it more it does it end up just contradicting itself in some way, or are these improvements, and we just have to get used to it. Yeah, it's a great point and it is something that comes up in sort of the legal world of sort of discovery, generally the idea that it used to be where this is how a bunch of junior lawyers used to be employed for weeks on end was Oh, our company has 1000 boxes of material that we might need to disclose the other side and so there's always attorneys going through page by page and now there is the development of sort of AI that where they scan all these documents in and it they will say these are the types of documents that are relevant that we need to produce, and they'll plug those in and then the machine will learn and will identify and sort of stack all these documents of like these are the ones where there's a certain percentage that these are relevant. You know, I think I think there, there is something to that which is one, the old school way of doing it and the old school way of that we view it as like somebody's going through and pulling these out is not how it's being done, but also, to the extent that, and also there could be problems with sort of what what AI is being used and what it's actually being able to find but I wonder whether that also could sort of neutralize it in certain ways in terms of if there is some sort of process or something that it is sort of helping to go through all the data or all the material that could sort of create what is ultimately sort of produced as being sort of more, more accurate more full and more better coverage and I definitely want to make sure that you know I don't mean to suggest in the getting more cases that, you know, there was any, there was necessarily an attempt to conceal information or utilize the black box as something like oh we're just going to cherry pick, but I also feel like this is part of the question that arises with these these questions like who's doing what where, and this is why this type of battle for the information I think creates a unique problem which is in the normal sort of criminal prosecution, you have a much closer relationship between the prosecutor and law enforcement and sort of the procedures the law enforcement use and how they handle evidence. So there's a, so that there's a, sorry, just a lot of my train of thought, there's a use of it that. Oh yeah so there's more of a clear idea of like well this is what's, this is what's available, and the prosecutor has more of a balance to a view of what the full material is so in terms of fulfilling their duties to provide exculpatory information, if it is, if it is available that that's more available to them. And so the situations where it's like okay well wait if there's a greater attenuation between sort of the prosecutor and the prosecutor taking their responsibilities very seriously to provide more relevant information and it's being handled by someone else not necessarily meaning that the other someone else is less reliable or less honest, but I do feel like you have a situation where they may not understand their job, or understand with the prosecutors job in the same way in terms of finding relevant, and perhaps exculpatory information. There's a question posted in the q&a I looked down and I saw a number. And it's, it's from Matthew so just so you're aware Matthew Ford is, as I mentioned that he spoke at the, he's one of the two co speakers at the last, at the last event in our speaker series. He's a senior lecturer at the University of Sussex, and actually a worst studies PhD graduate of the worst studies department. Yeah, he's posted a question here so I'm just going to, I'm just going to read it out. Thanks Matthew, the, I came in late and I've had to listen while other things been going on in the background I wonder what that might be. Indeed, there are a couple of other things going on in the world right now so thanks for taking the time to join in. If you write apologies if you've already discussed my question but here goes in a conflict environment people adjust what they record and say based on the particular context and level on their particular context and level of security or insecurity. How do you get around the challenge of individuals self censor. Is this just a question of verifying data points, is there a hierarchy of evidence, and how do you manage that in practice. How do we manage the challenge, and how many people do we need. You can do this sort of activity and then there's, you know, apologies if this is a naive sort of question. And he's still thinking it through. I guess this would be a great trio to sit down with with beer maybe at Waterloo station, and then pick it up. I think you've got the question visible to you as well, Doug. So I don't know if you want to work your way through them or focus on one of them. Okay, so I think I'm thanking Matt for the question. I think. Yeah, I mean, what I think is the thing is that there are sort of situations or legal situations that are in the sort of more normal sort of national context where some of this stuff can arise a bit where you're talking about, you know, a, is there a witness that is hesitant to come forward is there or is being sort of doesn't feel comfortable talking about something or the, you know, somebody needs protection or somebody that has been a victim of a crime that is sort of in that mode where they have the most relevant information or they have at least some of the most relevant information but they're not in a position to sort of provide it. And sort of then then they are looking for other evidence to sort of, to sort of supplement what's available there. I think it's a, I think it is a challenge in sort of trying to think that through especially when you then expand that to a sort of a very sort of a national or a local type situation to these broader questions where you might have things that involve sort of war crimes and victims of who are then also in a place where there is a, you know, they're not free to provide their evidence as well or provide their information. So yeah I think that is a problem with anything that is sort of the transnational nature of this I think adds a whole other layer of problems and I know from a very different standpoint I spent a summer working at the International Criminal Tribunal for Rwanda. And there were, there were issues like this where they had to, you know, there was a witness that was needed for a, to establish a certain crime and they had, maybe they had some documentary evidence or they had some other evidence but needed the evidence from very specific and I could provide something that the court needed but they couldn't get otherwise where they had to be extreme measures undertaken in order to protect that person and allow them the space and security to provide that testimony. And so there were I've heard there were even things where you know somebody would travel to the local city. So the court was in Tanzania and so many of the witnesses were in Rwanda and so there would be somebody that would travel and present as somebody's cousin, and they would talk to that person in private and then when that person was, the person was willing to testify they were sort of taken it was almost like they were going on a traveling trip and there was security and all of these things in order to bring this person to the trial and allow them to provide their testimony with with some protections for security in order to get that piece of evidence in order to make the case. I think also in this, the idea of self censoring that like if there are situations where people are not milling or cannot provide relevant evidence you do end up in the situation of trying to find some additional source to sort of provide that evidence. I'm going to ask, I think one more question and that's going to that's going to take us to, I think, probably as much time as we can spend on this but you know we you and I can hang back and chat some more. So first the question, I'll put the question this way is, we're talking about recent developments, and the series of guys were not a series of guidelines but the different sorts of guidelines that have emerged between, you know, the US guidelines, and a couple of different US guidelines the euro just statement and a couple of other documents that are sort of acknowledging this publicly formalizing it institutionalizing and socializing the idea. And you mentioned part of this explicitly where you said you know that there seems to be sort of a strong us influence, and a lot of this is a reflection of the US experience and indeed there's a, there's a you know there's a really strong history of this going back, in five years probably quite a bit longer than that but from the Second World War onwards in terms of, you know the approaches to captured enemy documents and the doctrines that developed around that, and how that's played out post war in the Second World War and then the versions of it and applied as part of, you know, predictive classic sort of intelligence activity, but that have also come into play into, you know post war documentation activity in relation to human rights core international crimes really. And that that happened after the Second World War and then you had versions of that in relation to, well every every battlefield situation the US was involved in but also every major sort of genocide, or large scale core international crime, documentation was coming up, you know, being developed in a very official sense but also ad hoc through civil society, you know, activities. After the Second World War in, in, in, you know, Cambodia DC cam the documentation sensor Cambodia prime example of that. And then those records being, you know, used fairly explicitly in the formalized criminal tribunal or criminal sort of. Well, criminal tribunal for lack of better I can't remember the formal title of it for for Cambodia, as well as in Rwanda and the Balkans and then, you know, over the last couple of decades as well. And so you've got this really strong trajectory built into this. Now, public formalization of battlefield information and battlefield evidence as potentially viable courtroom evidence coming out of an intelligence history but you've got, you know, democratization of access that's come into play, especially over the last 1020 years, probably longer than that because there's always been some sort of democratic access to information or, let's say, let's say, popular access as opposed to you know, controlled activities. But, but now with the usual sort of you know, emerging technologies and Matthews question about, you know, recording information and, and, and who gets to do that and how they record how they self censor and all of that. And so you've got two things coming into play when it comes to these guidelines coming out now these recent developments that that sort of help us look at this at battlefield information in a in a transparent way I suppose and it's coming out of on the one hand is closed black box, right and on the other hand you've got, you know, democratize democratized access facilitated by new technologies recording technologies and this sort of ubiquitous ability to record and to broadcast that information. And so, you know, low visibility versus extreme visibility. And I'm just wondering, you know, a lot of your talk, and a lot of what you had to say about these guidelines was really coming from from an intelligence perspective, or how they relate to, you know, how intelligence feeds into that. I'm just wondering what you what you what you think about that that more democratic aspect of things should probably stop saying democratic and focus more on the civil society side of things. You know, where it's, it's, it's, it's recorded and presented, and by design to be sort of consumed publicly in a classic sense forensically. Yeah, I mean I think that those two things coming together. And yeah, the idea that there are sort of the citizen recorders of all sorts of evidence and all sorts of, of things that are, are, and then the wide availability of that is allowing to see things that would have been sort of concealed or, or, or hidden before. So one takeaway from your question or one angle that I would come at it is something that I have thought about in looking at these guidelines, which is, is a part of me that is a little bit surprised by their narrow scope, that like they're talking to like the idea of the larger justification for these guidelines is the idea which I can get behind and I think most of which is that we want to be increased accountability for crimes committed in conflict and increasing accountability for that, hopefully creates a deterrent so that there is less of these sorts of crimes occurring. But I find it a little interesting that that broader goal which could have a lot of other things added to it is then focused on this very specific foreign terrorist fighter problem. But that we're only applying it to this specific thing. And I, you're, you're, you're thought about sort of citizen and democratic access to, I was reminded and I had thought about these in terms of genocide in terms of things that are happening where people are documenting it and civil society is stepping in and providing documentation that they can make fully available to others to sort of shed a light on things that are happening, but I was also reminded if we did have a situation where we were increasing sort of the capacity to document in these conflict zones including that I could include either people that are, you know, jointly acting as intelligence for something but they're also sort of feeding into this but if you also had sort of, and especially the involvement of sort of the United Nations and international organizations. If you sort of broaden that a bit and the idea of having sort of an international cadre of people that are sort of focused on documenting crimes and conflict zones that is not necessarily tied to sort of this initiative by the United States and they're pushing NATO and this organization is here. I mean there are possibilities there that that part of me thinks is unrealistic, but there's part of me that thinks well what about these situations where there is something that happens in a conflict zone such as a drone strike or an airstrike and the United States immediately says that all those were combatants and then you have a local reporter who takes a picture of the scene and you see old people and children killed and there's a part of me that's like well if we're improving the documentation of conflict zone actions including things that could potentially constitute crimes or violations of the law of our conflict. I also wonder well what could we expand this and including the idea that there are people that are out there sort of able to document things that are near them that could add a tendency to add additional facts or at least documents and evidence for either the sort of public discussion and or if there is any sort of litigation to be done related to things as sort of another source of this and if there were international organizations and civil society that we're sort of helping to facilitate this as well and because I feel like those when I read sort of the main purpose of some of these guidelines I feel like well this seems consistent although I of course understand the idea that if you start focusing on actions of state actors that takes on a very different, a very different sort of feeling and the interest in that suddenly changes a bit. So, I should have queued this with with you know this is your talk Doug, you get to have the final say that was actually a really great closing statement if you want it to be, but but actually now that I'm doing it. I guess I would say now, you know, this, this is your talk so you get to have the final say any any sort of closing words or points or observations that you want to that you want to leave us with. I just, I just want to say thank you, I really enjoyed this and I have been watching with the conflict record unit with great interest from a distance but with great interest and I think this. I think the issue conference records is a is the perfect thing for an interdisciplinary approach and what I love about these issues are that I am constantly reminded of how little I know that when you, you look at things from sort of a legal angle and then somebody has a historical political science angle that just sort of adds whole other layers of nuance. I mean I think it's, it's a topic that I, it's just a gift that keeps on giving and I sort of, I'm happy to be here and I forward to the work of the future. That's that's that's that's a brilliant plug and for the record it wasn't rehearsed. I didn't I didn't prompt Doug to say that so thank, thank you very much that that's exactly what we aspire to you. And this was this was a great, a great way to do it having this talk with you was a great way to do it. I look forward to more of it in the future. So, so watch this space.