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Event Coverage

11/18 Session #2: Now or Later, Part Two

Tuesday, November 18, 2014 at 3:11 PM

The prosecutor, Lt. Col. David Long, finishes his arguments regarding whether to push back argument on motion AE21, Al Hadi’s challenge to physical touching by female Guantanamo guards.   Long says no.

But Al Hadi’s attorney, Lt. Col. Tom Jasper, says yes.  He rises and underscores the breaking-news aspect of the facts, as revealed during Long’s earlier remarks: only today did Jasper learn that, indeed, an Assistant SJA had told Long of a policy of not allowing witnesses to speak to the defense. The timing is key, given that we’re talking about whether to allow more discovery or to argue a motion on the merits. Jasper is any event adamant that the so-called “instruction” would chill witnesses from talking to Al Hadi. The lawyer sits.

Questions from the bench are now put to the prosecution, about its witnesses: do they get a comparable form, about their options?  Yes, Long says, with words on the document adjusted where appropriate to change “defense” to “prosecution.”  It’s a fill-in-the-blank deal. Okay, says Judge Waits. What about Lt. Col. Jasper’s account of the facts, as set forth in his discovery motion—does Long dispute that account?  No is the lawyer’s answer.

Witness access is on Judge Waits’ mind–so much that he contemplates postponing consideration of AE21, pending further litigation on the defense’s ability to get its hands on needed information.  For his part, Long says the prosecution is willing to stay on Guantanamo for more days than initially scheduled this week, so as to work out any access issues and (hopefully) litigate AE21.  His motivation, again, is the crushing impact—in Long’s view–that the court’s grant of interim relief on the motion has had on operational matters here at Guantanamo. Well, that’s your problem, counsel, says Judge Waits; such impacts were precisely what the defense wanted to ask about but couldn’t, owing to discovery delays imposed by the government. Waits says he is tired of empty “platitudes” about operational problems, and instead wants to hear actual evidence. And how could such problems be so bad, anyway? There are almost no commission hearings between now and January, something that would take considerable pressure off the guard force, to the extent any is imposed to begin with by an order temporarily granting Al Hadi a male-touch-only regime.  (No hearing means no need for guards to extract the accused and bring him to the Guantanamo courtroom; all that leaves is transportation to and from attorney-client meetings.) Read more »

11/18 Session #1: Now or Later, Part One

Tuesday, November 18, 2014 at 2:58 PM

Judge Waits ascends the bench and the hearing once more comes to order.  It seems Al-Hadi is here, along with attorneys for both sides. Housekeeping: The military judge explains that yesterday and this morning, Rule 802 conferences were held (two with both parties and Judge Waits; one with only the government and Judge Waits), regarding the need for classified evidence to be introduced; apparently, that question wasn’t fully resolved, and might well depend on further developments today in court.

Court and counsel also talked discovery. You’ll recall that in motion AE21 Al-Hadi has sought to block female guards from touching him, in light of his Muslim faith.  But some documentary discovery bearing on this request—classified and not—didn’t reach the defense until a few days ago. Thus Al-Hadi’s lawyers had asked to postpone argument on AE21, pending their review of the discovery and development of necessary facts; among other things, Al Hadi’s attorneys had not yet viewed a video of the detainee’s forcible cell extraction by GTMO personnel. This raises a question: will we proceed or not?  A debate on that very issue follows.

Lt. Col. Tom Jasper, speaking for Al Hadi, desires not to proceed—or at least to delay until next session before doing so. The defense, he says, doesn’t even have access to witnesses and evidence needed to prepare argument on AE21. That’s a major procedural no-no.  The military commission rules’ official comments say that the defense’s ability to obtain witnesses will be comparable to the defense’s ability to do so in civilian court, among other things; and the rules themselves also forbid others from discouraging witnesses from testifying. Contrast these norms with the facts on the ground: Jasper tells Judge Waits he filed his discovery request on October 22, and came down to Guantanamo to investigate in October 27. And yet he only reviewed a video of Al Hadi’s cell extraction a few hours ago. Jasper also says he was blocked initially from speaking to a key witness—Col. Heath, the Joint Detention Group Commander. (He’s the only witness Jasper and company have been able to speak to so far.)  And while that witness was eventually permitted to speak to Jasper, the lawyer’s interview proceeded without the benefit of documentary discovery.

Another thing: Al Hadi’s attorney is aware of a briefing regarding Al Hadi’s handling, where GTMO officials initially told underlings not to speak to Jasper. That instruction was apparently rescinded quite swiftly—but Jasper will need to look into that and all the aforementioned stuff, in order to develop the story of Al Hadi’s interactions with the guard force. (According to Jasper, the GTMO Staff Judge Advocate had demanded that Jasper and crew demonstrate a witness’s relevance to Al Hadi’s case, before giving permission to Jasper and the witness to communicate with one another.)  And this sure doesn’t sound like regular, Article III access to witnesses. The usual procedure allows for “cold calls,” with no government interference—and ample time to work up the facts, and confer with the client before proceeding further. It’s also annoying to the lawyer, receiving needed discovery and witness access at the last minute. More along these lines follows, but Jasper’s point is crystal clear throughout: don’t do AE21 now, your honor. Give us more time. Read more »

11/17 Session #4: Discovery, Both Bergdahl-Related and Not

Monday, November 17, 2014 at 2:00 PM

In AE18, Lt. Col. Tom Jasper seeks, on behalf of Al-Hadi, to compel discovery into certain communications—those between the Convening Authority and Defense Department brass, regarding the release of Private Bowe Bergdahl.

The lawyer recites the facts: the charges against Jasper’s client were first sworn in February of 2013, and forwarded to the Convening Authority some time thereafter, before the latter gave his needed sign-off in February of 2014. There’s a kink here, which has to do with timing. In May of that same year, the United States also swapped a five-strong Guantanamo contingent in exchange for Bergdahl, who had been held by the Afghan Taliban. Thus Jasper and company want to know: did the Convening Authority have any communications with higher-ups, about the Bergdahl exchange?  Did those communications inform the decision to refer charges in this case?

The defense sought answers but was rebuffed by the prosecution; the latter said had no responsive materials, and that any such materials would not be discoverable in any case. Jasper wonders aloud here, about whether the United States really did try hard to uncover any Bergdahl-relevant stuff within the Convening Authority’s coffers. As if to underscore the stakes, the attorney nods to unlawful command influence—the enemy of military justice, in Jasper’s view. And he adds that the government’s response appears vastly narrower than the defense’s broadly-drawn request; prosecutors haven’t searched very widely, but Jasper thinks a wide search is required. For his part, the military judge is confused; what’s this about, so far as Al-Hadi goes? Jasper doesn’t really answer but unfurls a little speculation—what if Al-Hadi’s case was referred, precisely to show that the commissions cases were making progress around the time of the Bergdahl swap?  This doesn’t seem to satisfy the military judge, who presses some more.  But there’s Jasper, again: what if somebody called the old Convening Authority, in the wake of the Bergdahl exchange, and applied pressure for more prosecutions at GTMO? The lawyer wants confirmation about just how diligent, or not, the prosecution has been in searching for discovery material. After all, a new Convening Authority holds the office; another person held it at the time relevant to Al-Hadi’s discovery request. In any case, “[b]efore you deny our motion,” Jasper argues, the court should uncover the truth behind the government’s efforts.

Trial counsel Mikael Clayton says the defense indeed has crystallized the issue with Jasper’s nefarious-sounding question: did anyone reach out to the Convening Authority, regarding the Bergdahl swap?  Well, Clayton and company have put that very question to the Convening Authority—both the current officer and his predecessor.  And the answer in each case has been a resounding no: no inquiries were made, no influence was exercised, period. Prosecutors even passed on the defense’s written request itself to the convening officers.  What more is there to do?  His side is committed to meeting its discovery obligations, Clayton says; but he argues that there’s no obligation to go fishing around the wider federal government, for Bergdahl-related, Convening Authority-related information. The prosecutor also scoffs at Jasper’s suggestion that a fast response to an easy question (“did anyone lean on you about Bergdahl?”) implies a less than diligent discovery effort by the United States.  Sometimes easy questions get easy, fast answers. Again: there were no materials responsive to Jasper’s question, full stop. Read more »

11/17 Session #3: Common Allegations, Part Two

Monday, November 17, 2014 at 11:26 AM

We return from recess, and Clayton resumes his argument in opposition to AE19—a motion to strike common allegations from the charge sheet against Al-Hadi.

Clayton refers to Stirk’s suggestion that the law requires prosecutors to make spare or few allegations in a conspiracy case; he says he knows of no authority to that effect. And no surprise, given the deference owed to prosecutors’ charging decisions, and the high bar set by the surplusage cases cited by Clayton and company to the court. Finally, there’s vicarious liability. It is true, as Stirk claims, that the law doesn’t require a theory of vicarious liability to be set out in detail in charging documents. But there’s no bar to this, either. At the same time, Clayton cites many reasons why doing so is a good idea—reason #1, in Clayton’s view, being the mountain of cases in which defendants have complained about insufficient, untimely notice about the prosecution’s vicarious liability approach.

Why not nip that problem in the bud?  In the wake of Hamdan II, and given the ever-shifting jurisprudence in military commissions, the soundest practice is to furnish the accused with more information, as soon as possible.  It’s not an academic argument, Clayton insists: the accused in Al-Nashiri claims that he was not given proper notice of the prosecution’s aiding and abetting theory there. Having that in mind, the United States’ chosen method is the best, given the traditional functions of charging instruments—to avoid juror confusion, to provide notice to the accused, and so on.

A final counterargument by the prosecutor: Stirk says the common allegations are a “checklist,” and that checklists are bad. But Clayton thinks they are good: military members, being highly educated and highly intelligent, will scrutinize the evidence at trial, having in mind the highly detailed allegations put forth in the charge sheet.  Their use, moreover, supplies more information for use down the road, during appellate review. Clayton thus sums up: this is a “more information” approach.  And more information is always preferable—even if the charging approach here is unusual, even somewhat unfamiliar to seasoned practitioners like defense counsel. Ultimately, what matters is whether a charging practice is sound.  And this one is.

Questions from the bench follow. Judge Waits notes that the government incorporates certain common allegations into various charges, by reference; Clayton explains exactly where this does and does not happen throughout the various counts. And, when asked, Clayton clarifies the prosecution’s view that the military judge can always tell members, come trial-time, that allegations are merely that—-and not to be treated as evidence.

Stirk returns to the podium, and begins with Clayton’s suggestion of a lack of defense familiarity: perhaps, Stirk says, it is Clayton who is unfamiliar … with courts martial practice.  Such practice includes a findings worksheet, one that goes back with the members as they deliberate. Clayton and company certainly don’t wish to do that here; instead, the government wants to craft the findings worksheet for the members, before trial—and thats simply unfair.  Does the defense get to submit a defense-crafted narrative for the members, for their reference during trial?

This permits Al-Hadi’s lawyer to return to his larger theme: allegations that must be proven obviously have to be included; but “bonus” allegations, that don’t require legal submission of proof to convict, must not be. Judge Waits takes a step back.  To the extent conspiracy is a viable charge, he says, doesn’t the government have to allege overt acts?  How can they do that without going into some detail?  For his part, Stirk hasn’t made any concession about conspiracy’s legal viability, but answers that overt acts are one thing—but that detailed, common allegations are another.  When pressed further, Stirk explains that the striking of common allegations won’t preclude members from entering, in their findings, the specific evidence or events they relied upon in reaching a verdict. He thus stresses a corollary point: to the extent all 63 overt acts related to the conspiracy remain in the charge sheet against Al-Hadi, the prosecution must prove all 63 beyond a reasonable doubt—not just one. If the government submits a “story,” it has to prove all the parts of that story, lest the accused be prejudiced. Stirk asks the court to grant his motion.

We break for lunch; see y’all at 1300.

11/17 Session #2: Common Allegations, Part One

Monday, November 17, 2014 at 10:43 AM

In motion AE19, the defense asks the court to strike certain common allegations from the charge sheet. One of Al-Hadi’s lawyers, Maj. Ben Stirk, explains why.

The incorporation of “common allegations” into the charge sheet is essentially an end-run by prosecutors——one meant to permit the members to see the government’s entire case, at trial, before the evidence is submitted. It will act as a highly prejudicial “checklist,” in Stirk’s view. The move, he adds, is not authorized by the Military Commissions Act (“MCA”), and therefore should be knocked out of case.  Of course, the MCA does allow for the submissions of Bills of Particulars—more specific elaborations of charges—but Stirk’s side hasn’t asked for one, and such Bills aren’t evidence standing alone. At any rate, simply trotting out a prosecution account of the evidence is inflammatory, and totally unfair.  (Apparently another commission case addressed this issue: when asked, Stirk tells Judge Waits that in the 9/11 case, where a kind of conspiracy had been charged initially, the defense asked to have common allegations stricken—even though such allegations there aren’t incorporated by reference in that case, much as they are here.)

It is not to enough to claim, as the government does, that no law prohibits a common allegations approach, says Stirk. To be sure, federal courts and international bodies concededly use such allegations from time to time, but courts martial—which furnish the institutional blueprint for the commissions’ procedures–do not. (Judge Waits notes that military commission rules require no particular “format;” is there a courts-martial analogue, so far as the contents of charging documents are concerned?  Stirk doesn’t know, but says he will dig up an answer.)  Another error by the government, in Stirk’s view: its argument that this case is “complicated,” so complicated as to require the use of common allegations. In fact, the case is a straightforward one. Stirk thus susses out the government’s real intention here—to stress its theory of liability, as to why Al-Hadi ought to be held liable for others’ conduct. That’s unnecessary, and prejudicial. Stirk sits.

The defense suggests that common allegations pleading is unusual.  Well, fine; we agree, says prosecutor Mikeal Clayton. We agree because Al-Hadi’s case’s is unusual.  It is a transnational terrorism conspiracy case, involving multiple actors and complex questions under the law of war.  The relevant comparators here are therefore not ordinary courts martial or everyday assault cases tried in domestic tribunals—but courts that have dealt with situations like this one. Clayton has in mind international and federal decisions involving wartime and terrorism. And these rulings, he says, in turn make clear that cases like Al-Hadi’s may and should be charged in a different manner.  (Picking up where Stirk left off, Clayton adds that courts martial rules, like commission rules, in fact allow for charges to be made without regard to particular “format” requirements.)  And all this makes sense: wide-ranging complex terrorism cases demand procedural flexibility, no less so with respect to charging documents. Here, the Convening Authority has followed the appropriate court guidance in approving such documents in this case. And contrary to Stirk’s suggestion, the United States will bear the burden of proving each element of the charges beyond a reasonable doubt—that is so without regard to the language employed in the allegations.  (A side note: Clayton argues that the 9/11 case, cited by Stirk, is not especially instructive here, given the odd procedural posture.) Read more »

11/17 Session #1: Article 5?

Monday, November 17, 2014 at 10:06 AM

The military judge, Capt. Keith Waits, calls our session to order.  All parties are present, including the accused.  That means a quick colloquy about Al-Hadi’s right to be present, the consequences of knowingly and intelligently waiving that right, and so on.  Does he understand the right to be here, and the risks of deciding not to be here?  Waits addresses the accused directly, and Al-Hadi answers that he does.

Housekeeping comes first: the military judge summarizes the outcome of a pre-trial conference, which (among other things) prioritized consideration of a legal motion by the defense, and to push back a dispute over physical contact by female GTMO guards. (The latter is the subject of a parallel but related discovery motion that must be handled before turning to the merits.) It also seems Judge Waits will confer ex parte with the government this afternoon, regarding classified material.

At any rate, we have our marching orders, and therefore turn to Al-Hadi’s legal motion: AE20, a bid to dismiss for lack of subject matter jurisdiction and to compel a status determination pursuant to Article 5 of the Third Geneva Convention. It falls to Lt. Col. Tom Jasper to argue the pleading; he insists that, although his side filed it, the government nevertheless bears the burden of establishing jurisdiction, and thus also should bear the burden on this motion here. The prosecution broadly agrees that, at the appropriate time, its side must demonstrate jurisdiction—but that, here specifically, the defense must demonstrate why it is entitled to have the case dismissed for want of an Article 5 hearing. Waits mulls this for moment, before concluding that Jasper and company bear the burden for present purposes.  (Clayton and company of course still bear the larger burden of proving jurisdiction at trial, says the military judge.)

Jasper rises and asks for dismissal of all charges, pending an Article 5 hearing before a so-called “competent tribunal” under Article 5 of the Third Geneva Convention.  That should have happened prior to referral but didn’t, argues the lawyer.  Military commission jurisdiction is status-based, and only alien enemy unprivileged belligerents—people forfeiting protection under the law of war—are subject to trial under the commissions’ authorizing statute.  And yet Geneva presumes the protection of persons who fall into the enemy’s hands—those of the United States, in Al-Hadi’s case—pending ascertainment of status by a competent tribunal under Article 5. While it is true that a person must do certain things to ensure such protections—carry arms openly, and the like—it’s on the government to show, in the context of an Article 5 hearing, that Al-Hadi hasn’t done such things. And that simply hasn’t happened here. Read more »

ICYMI: Coverage of Last Week’s Hearing in Al-Nashiri

Monday, November 10, 2014 at 10:44 AM

ICYMI, GTMO policy folks: Matt Danzer’s final round of digests on last week’s hearing in United States v. Al-Nashiri can be found below, and in our “Events Coverage” section.  (Earlier coverage of the hearing is here, too.)


11/5 Session #4: Statements, Transcripts, and Questionnaires

11/6 Session: Fighting Over MRIs and Hearsay

11/6 Session: Fighting Over MRIs & Hearsay

Monday, November 10, 2014 at 10:38 AM

Thursday’s session opens with an update on AE 284, the defense motion seeking Skype calls for Al-Nashiri, from prosecution attorney Col. Robert Moscati. The prosecution has learned that the Guantanamo administrators expects to be able to provide direct interactive communication between high-value detainees and their family members by the end of the year. The parties have agreed to hold this motion in abeyance until the communications system is implemented. After a bit of antagonistic back-and-forth between defense attorney Richard Kammen and Col. Moscati, the former implying that the government only relented on this issue when it appeared the commission would allow an evidentiary hearing and the latter explaining that the government has been developing this capability for months, Judge Spath moves on to a defense motion seeking use of an MRI machine for purposes of a death penalty mitigation evaluation for Al-Nashiri.

Kammen explains that the MRI machine is necessary to show the extent of any brain damage. The convening authority has only agreed to allow Al-Nashiri to see a psychologist, but just the security process alone will take months and chances are an MRI will still be necessary to resolve disagreement between the defense and government psychologists. On the other hand, an MRI now will obviate the need for dueling psychologists and will only leave the question of what caused the brain damage for the two sides to debate. Kammen concludes by noting that mitigation is not an excuse for the alleged crime, but speaks to whether Al-Nashiri deserves the death penalty if convicted.

Back up is Col. Moscati, who says that there are no medical indications that an MRI is necessary. Only Dr. Crosby, a defense witness, has speculated that an MRI may show brain damage. Judge Spath interrupts: The standard for the defense’s request is whether the expert assistance is material to their preparation of a mitigation case. In fact, there is a string of cases where courts reprimanded defense counsel for failing to pursue evidence of brain damage and ultimately new trials were granted in those cases due to ineffective assistance of counsel. So what does the prosecution expect the defense to do here? Col. Moscati points out that an MRI scan would not explain how or when brain damage occurred and so it would not be useful for a mitigation case. The defense should use the neuropsychological testing granted by the convening authority for its case. But Judge Spath isn’t buying it. Whether potential brain damage occurred before or after Al-Nashiri was in government custody, the fact of brain damage can serve as a mitigating factor and so an MRI would be useful evidence. Timing only speaks to the extent of such mitigation. Col. Moscati wraps up by arguing that the very idea that Al-Nashiri might have brain damage and so needs an MRI is speculation by the defense and is not based on any evidence.

After a brief rebuttal from each side, Judge Spath moves on to AE 319, a defense motion to exclude hearsay statements proferred by the government. Argument is limited to the mechanics of the evidentiary hearing at which the government, under the rules of the Military Commissions Act, must prove the reliability of the statements. The government would like to call seven witnesses, says Col. Moscati, who will show that the 71 hearsay statements are corroborated, voluntary, reliable, and are offered as evidence of a material fact, are probative of that fact, serve the general purpose of the rules of evidence and the interest of justice, and the witness is not available as a practical matter.

Judge Spath notes that the defense agrees with this procedure, but there is still the matter of discovery in relation to these statements. Col. Moscati explains that the government is taking another look at previously redacted documents provided to the defense. These are FBI FD-302 forms, used by FBI agents to summarize interviews. They were originally redacted in general discovery as sensitive law enforcement information, but that may no longer be appropriate under the government’s new discovery obligations in this hearing. The government also requests 45 days to arrange witnesses, which means this process won’t begin until the scheduled February hearing, and the government estimates that this process may take four to six weeks between direct examination, cross examination, translation, and defense witnesses.

The next point of contention highlighted by Judge Spath is the defense’s request for additional witnesses. The defense asked the prosecutors to produce 40 witnesses, and the government agreed to seven, which were the same seven the government was already going to call. Can the government take a look at those other witnesses again and see if any additional witnesses can be approved? If not, the commission will have to hold a hearing between the government’s witnesses and the defense’s to work out witness production issues. Col. Moscati says the government is happy to sit down with the defense and discuss their proposed witnesses, but the government did previously explain that it felt those witnesses were cumulative. Judge Spath points out that the standard for cumulative witnesses is a fuzzy one and so he hopes the government and defense can come to some agreement on additional witnesses.

With the parties in seeming agreement on the logistics and Judge Spath comfortable with the proposed schedule, Kammen pours some cold water on the plan: The defense needs 60 days to prepare for these hearings if it is just now going to get the unredacted 302 forms. It also attempted to interview a few of the prosecution’s seven witnesses, but the government repeatedly instructed those witnesses not to answer the defense’s questions, so the defense would like to interview those witnesses again without prosecution interference. Further, if the prosecution would like to use statements made by Walid Bin’Attash, another high-value detainee, then the defense would need discovery on Bin’Attash’s CIA detention and would like to speak with his lawyers. The defense also wants information on the hearsay witnesses’ detention in Yemeni prisons before their contact with FBI agents. Judge Spath points out that some of this information might come out on cross-examination, but Kammen says that the defense needs evidence in advance to judge the truthfulness of the witnesses’ testimony. The defense proposes that the most efficient way to do this is to allow them to conduct discovery, witness interviews, and any necessary investigation, and then look at scheduling hearings.

Col. Moscati is back for rebuttal and the tone continues to heat up between the parties. He says that Kammen is “greatly overstating” the discovery issues and this will not, as the defense frequently requests, move the proceedings along. Further, any 302 forms that the government unredacts will be provided to the defense in November, more than 60 days before the proposed February hearing. The prosecution will also allow the defense to interview or reinterview the seven witnesses before the hearing. And on the question of Bin’Attash, the government will provide the necessary discovery on his detention and treatment. If the defense feels that the discovery is inadequate, it can bring a motion at the December hearing.

Kammen provides a brief rebuttal, Col. Moscati adds some additional clarification, and that’s a wrap for the November hearings. The commission wil reconvene in December for more motions and hearings.

11/5 Session #4: Statements, Transcripts, and Questionnaires

Monday, November 10, 2014 at 10:37 AM

The final session for the day begins with AE 314C, a defense motion to compel testimony at the hearing on a defense motion to suppress statements made by Al-Nashiri. Capt. Daphne Jackson explains that in order for the defense to prove the underlying motion—seeking suppression of some of Al-Nashiri’s statements due to the length of his detention before being charged and read his rights—witnesses can provide useful testimony on voluntariness, the circumstances of Al-Nashiri’s detention, the manner in which the statements were taken, and the totality of the circumstances. Witnesses will also be helpful to the defense in fleshing out the government’s distinction between Al-Nashiri’s detention under federal law enforcement (where presentment rights attach) and the laws of war. Anticipating the government’s resistance to witnesses, particularly witnesses testifying in court, Capt. Jackson offers the alternative: video teleconference.

Judge Spath pushes a bit on when Al-Nashiri’s presentment rights attached. Didn’t those only begin in 2011 when charges were brought? Capt. Jackson answers that whether Al-Nashiri’s presentment rights attached before charges were brought is a question of fact for which the defense would like to present witnesses who could testify as to the manner and level of custody. But how can that be, asks Judge Spath, if Al-Nashiri was captured in accordance with the Authorization for the Use of Military Force? That is a mixed question of fact and law, says Capt. Jackson, depending on what was the nature and purpose of Al-Nashiri’s detention. For example, if Al-Nashiri was questioned during his military detention with an eye towards litigation, that may trigger presentment rights. Capt. Jackson also dismisses that these witnesses are cumulative and asks Judge Spath to allow the defense to choose its own witnesses, rather than allow the government to provide “poster children.”

To oppose the motion is prosecutor Justin Sher, who doesn’t get very far before Judge Spath interrupts. Does the government have the burden to demonstrate that Al-Nashiri’s statements were made voluntarily? Yes, says Sher, if there was no presentment violation, the government must still show voluntariness and admissibility of the evidence. And there was no presentment violation because a person must not be presented to a federal judge until they are brought up on federal criminal charges. Al-Nashiri was detained under the AUMF and had not been charged with a federal crime when federal law enforcement interviewed him in 2007. “No amount of witness testimony can change the analysis,” explains Sher, because this is entirely a question of law.

Capt. Jackson provides a brief rebuttal, discussing the challenges the defense has had interviewing witnesses on Al-Nashiri’s detention, both sides rest and Judge Spath moves to AE 315B, a very similar motion to compel witnesses for a defense motion to suppress statements made by Al-Nashiri after Miranda rights attached, but before he received his Miranda warning. Capt. Jackson is back for the defense and incorporates all of the arguments from AE 314 into this argument. Judge Spath asks whether there is any law that says Miranda rights apply to unlawful belligerents held under the AUMF. When Miranda rights attach is a fact-intensive analysis, according to Capt. Jackson, and so the defense needs to present witnesses to lay out the context of Al-Nashiri’s detention. Judge Spath seems unconvinced: The Supreme Court has “made Miranda a fairly black and white experience,” and those rights do not apply unless Al-Nashiri was in custodial interrogation. Unprivileged enemy belligerents are not in custodial interrogation, so how can Miranda apply? And isn’t that simply a legal question, rather than one that requires witnesses? Capt. Jackson argues that the government deliberately “circumvent[ed] the system to avoid the attachment of Miranda rights in this case,” which witnesses will be able to flesh out.

Lt. Bryan Davis takes this motion for the government and echoes Sher’s previous argument: The question of whether Miranda rights attach “is a black-and-white issue. It is a legal issue.” Witnesses will not help the judge determine whether Miranda rights applied to Al-Nashiri because it is purely a question of law. Miranda does not apply to unlawful enemy belligerents at Guantanamo, nor does the Military Commissions Act provide for Miranda rights. Instead, under the MCA, statements must be probative, reliable, and voluntary, which the government fully intends to prove when the issue arises.

Capt. Jackson returns for rebuttal, noting that this is in part a factual question because the defense argues that the circumstances of Al-Nashiri’s interrogation did attach Miranda rights. After years of torture, Al-Nashiri was brought to Guantanamo and treated better, asked to divulge information, and may have felt compelled to talk in the hopes of being released. That”s a great argument, says Judge Spath, but one that speaks to voluntariness, rather than to the attachment of Miranda rights.

Briefly back for the prosecutor, Lt. Davis clarifies that were the judge to find that Miranda rights did attach for Al-Nashiri’s statements, that would raise factual issues and the government would request witnesses and an evidentiary hearing as to whether the accused was in custody, but that is not an issue until the underlying motion is decided.

With those motions out of the way, the commission turns next to AE 320, a defense motion to halt the process of authenticating the transcript for hearings held in this case between November 2011 and May 2014. Richard Kammen will argue this motion for the defense. In the normal military case, authentication of the transcript takes place at the end of proceedings, but for some reason it seems that the defense is already being asked to authenticate transcripts for hearings in this case. This is stretching the defense’s lawyers thin in the middle of the case. Says Kammen, “If you want to have hearings, we are happy to have hearings. If you want us to authenticate a transcript, we are happy to authenticate a transcript. But we can’t do both. We don’t have the bodies.”

Lt. Paul Morris rises for the prosecution and Judge Spath very quickly asks why these transcripts need to be authenticated now when military and civilian practice is to authenticate after the trial unless there is an interlocutory appeal. Lt. Morris explains that the commission rules say the transcripts must be authenticated by the judge who presided over that portion of the hearing, which was, until recently, Judge Pohl. So the convening authority has been sending out authentication requests after each hearing in order to ensure that authentication happens as soon as possible, and it felt that it should have all of those transcripts finalized now that Judge Pohl is no longer presiding over the case. Lt. Morris also points out that any defense counsel present for a hearing can authenticate the transcript; it does not need to be authenticated by the lawyer who argued a particular issue. The defense can also pass on this authentication opportunity and later provide an addendum to the transcript. But Judge Spath notes that the defense team did not know that Judge Pohl would not preside over the full case, nor were they told that the transcript would be authenticated prior to the conclusion of the proceeding. Can the prosecution ask the convening authority to provide the defense with more time to authenticate? Of course, says Lt. Morris, but the government does not want, as the defense is proposing in this motion, an all-stop to the authentication process.

Back for the defense, Kammen explains that the defense brought this motion rather than approach the government because the convening authority has refused to be communicative or cooperative with the defense over the past four or five years, and so it seemed easier to just bring a motion. Nor will a brief delay in authentication help the defense get this done. The trial and appellate processes aren’t slowing down and the defense team can’t spare anyone for a day or two to authenticate transcripts for the foreseeable future.

Wrapping up the day is AE 321A, a defense motion seeking more time to respond to the underlying motion by the government asking the commission to approve a proposed member (i.e., juror) questionnaire. Al-Nashiri attorney Maj. Tom Hurley explains that the defense is asking for a lengthy delay on the underlying motion considering the number of major issues yet to be worked out in pretrial motions. Also noting Judge Spath’s efforts throughout today’s hearing to improve comity between the parties, Maj. Hurley proposes a discussion between the parties to negotiate a questionnaire, but that process should take place after some of the evidentiary issues have been resolved, as those will almost certainly inform the questionson the questionnaire and at voir dire. Judge Spath likes the sound of the parties working this out on their own before coming to the commission to fight it out, and that will give him time to determine when the questionnaire should be due, but it certainly cannot be due before the close of discovery and the resolution of a number of evidentiary questions. Maj. Hurley adds that the defense has just recently retained a jury consultant who is just now getting up to speed and will need some more time before helping out with the questionnaire.

Up for the government is Maj. Winston McMillan, a recent addition to the prosecution. He notes that the government provided this questionnaire in accordance with the previously-established milestones. The prosecution is fine with continuing the dialogue over the questionnaire, but it would like to keep the process moving forward. Judge Spath appreciates this, but stresses that the current litigation schedule is no longer realistic and it will be hard to make a realistic schedule given the number of big issues left for resolution and the ongoing appellate challenges. What the government and defense should do is begin a dialogue on the questionnaire and voir dire with the understanding that the commission will set a new deadline down the road.

With that, the commission does some final housekeeping and recesses for the day.

11/5 Session #3: On the Necessity of the Death Penalty

Friday, November 7, 2014 at 6:32 PM

The parties return for the afternoon session and Judge Spath begins by laying out his thinking on the previous motion seeking supervised telephone and Skype calls between Al-Nashiri and his family. In the interest of moving this issue forward, the judge would like to understand why a supervised and delayed-transmission telephone or Skype conversation between Al-Nashiri and his family is unacceptable to the government. While the burden rests with the defense team and the government must only demonstrate a rational basis for the decision, the commission would like to hear from a Guantanamo representative—Judge Spath proposes Admiral Kyle Cozad, the commander of Guantanamo—and the unidentified individual who informed Al-Nashiri that he would soon have access to telephone and Skype calls. This can either happen during this series of motion hearings or, if necessary, the next time the parties come down to Guantanamo.

With that decided, Judge Spath moves on to AE 286B, a defense motion to withdraw the death penalty for lack of a military necessity. Up for the defense is Maj. Allison Danels, who begins by arguing that the military commissions, as courts of limited jurisdiction born of military necessity, must limit their punishments to those that are militarily necessary. The lapse in time between Al-Nashiri’s capture and when the government brought charges against him—nine years—shows that there is no military need to execute the accused in this case. Judge Spath pushes back on the defense’s assertion, repeatedly asking how he can take the death penalty off the table when the Military Commissions Act expressly provides that option to the commission. In light of the facts and circumstances of Al-Nashiri’s case, explains Maj. Danels, there is no military necessity in this case, though the death penalty may be warranted for other cases. And what are those facts and circumstances?

Maj. Danels points to William Wintrhop’s four preconditions for exercise of military commission jurisdiction as laid out in Hamdan v. Rumsfeld: The conduct (1) must have occurred (2) within the theater of war (3) during the period of the war and (4) must be a violation appropriate for tribunals not legally tried in a court-martial. Further, the precondition that the offense charged occur within the period of the war implies that the charges must be brought swiftly after the accused is captured, as demonstrated in Ex parte Quirin, where the accused were executed less than a month after entering the US. Judge Spath isn’t so sure that the Quirin model from 1942 is a particularly good one for this case; after all, much of the delay in bringing Al-Nashiri to a military commission was a result of all the challenges and modifications to the process to make it fair for defendants. And anyway, the Military Commissions Act doesn’t include a statute of limitations for imposing the death penalty, which would seem to remove the swiftness argument. The very fact, responds Maj. Danels, that the government waited four years from Al-Nashiri’s capture to create a military commissions system is evidence that there is no military necessity here.

Finally, Maj. Danels challenges the government’s justifications for the necessity of the death penalty in this case. Public safety cannot be the justification for executing Al-Nashiri because of the prospect that he could be indefinitely detained even if he is acquitted. Nor is a general deterrence argument convincing because, rather than dissuading terrorists, it might actually incite them and give them justification for their brutality. Another possible justification, vengeance, is not one that the US military uses and is not a military necessity.

Lt. Paul Morris responds for the prosecution: Maj. Danels makes a number of points that the commission might find convincing for sentencing Al-Nashiri, but at this point in the proceedings, none of it amounts to a legal basis to take the death penalty off the table. Returning to Winthrop’s preconditions, Lt. Morris points out that even Winthrop acknowledged that his military commission rules are subservient to statute. The Supreme Court in Hamdan acknowledged as much. Thus, the Military Commissions Act should govern in this case and the death penalty should not be removed from the case.

Back on rebuttal, Maj. Danels argues that Winthrop’s exception for statutory guidance only applied to statutes that existed at the time when the accused committed the offense. In Al-Nashiri’s case, the Military Commissions Act was enacted four years after his capture and six years after the offense that he allegedly committed. But isn’t it common for legislatures to statutorily authorize military commissions only after the war has started and often after the offense is committed? Judge Spath points to the Nuremberg tribunals to bolster his question. Does the defense have any authority that the passage of 14 years passes some sort of statute of limitations that removes the death penalty from appropriate punishment? Maj. Danels does not have a satisfactory answer for Judge Spath and the defense rests.

The commission takes a brief break before the next motion.

Al-Nashiri Motions Hearing: Nov. 5 Session

Thursday, November 6, 2014 at 10:04 AM

Hey GTMO fans: the estimable Matt Danzer’s digests of yesterday’s hearing in this capital Guantanamo military commissions case can be found below, and in our “Events Coverage” section.

Keep an eye on this space; we will update this post with more digests throughout the day.

11/5 Session #1: Arguing to Reargue

11/5 Session #2: Skyping with HVDs

11/5 Session #3: On the Necessity of the Death Penalty


11/5 Session #2: Skyping With HVDs

Thursday, November 6, 2014 at 10:00 AM

The commission returns from recess and prepares to consider AE 284 and 284L, a defense motion and supplement seeking to allow Al-Nashiri to hold supervised Skype calls with his elderly parents.

Before that, however, defense attorney Richard Kammen informs Judge Spath that Al-Nashiri has an upset stomach due to his transportation and would like a corpsman to bring some dissolvable medicine to settle it.It’s something of a logistical pickle, as the staff says that they cannot bring a corpsman at the moment. This is the first the government is hearing of the issue, says prosecutor Justin Sher, but they will send someone to try to address the issue while the proceedings continue.

At the outset, Kammen explains that the state of play on this motion is a bit in flux after an unknown individual at Guantanamo recently informed Al-Nashiri that he will soon be allowed to have supervised telephone and Skype conversations with his family. It seems, however, that that may no longer be the case. Judge Spath asks whether the Guantanamo decision to allow Al-Nashiri and his family to pass along letters and videos, but not engage directly over Skype, should receive deference under current case law. Kammen explains that while it gets some deference, it must be weighed against a new Department of Defense directive that doesn’t exclude supervised Skype calls for high-value detainees (HVDs) “where practicable.” The government has not said that it cannot accommodate the request and so the court should grant the defense motion.

Noting the murky origins of these motions, Judge Spath presses Kammen on the standard of review for this motion: Is it deliberate indifference to Al-Nashiri’s medical needs because the Skype calls would be beneficial to address his post-traumatic stress disorder? Or is it a condition of confinement for which the detention facility receives deference subject to, under Hatim, a demonstration that it has a rational basis for its decision? Kammen is not inclined to choose a standard, pointing out that if the facility’s decision is owed deference, the court has not seen evidence of the Guantanamo commander’s position on this issue. When pressed, however, Kammen says the defense prefers to frame this as a conditions of confinement question guided in part by evidence that allowing the Skype calls would be medically helpful to Al-Nashiri.

As Lt. Paul Morris rises for the prosecution, Judge Spath asks what the current state of play is on this issue within Guantanamo. Lt. Morris explains that the unidentified Guantanamo official prematurely notified Al-Nashiri that he would be allowed to engage in supervised Skype calls with his family when no such determination had yet been made. While government policy evolves over time to include additional services to the accused, the question before the commission on this motion is whether the defense has shown that failing to provide those Skype calls demonstrates a deliberate indifference to the serious medical needs of Al-Nashiri. They have not done so and the commission should deny the motion. That is all well and good, says Judge Spath, but won’t the defense next come with a motion citing Hatim and saying that this policy has no rational justification? In the interest of judicial economy, can the commission address that follow-on issue now? Lt. Morris points out that the government has already provided declarations from Guantanamo personnel and the Defense Department showing that there are alternatives to Skype and providing the government’s rational basis for rejecting Al-Nashiri’s request. Given the failure of the defense to show deliberate indifference and the government’s evidence of a rational justification for the policy, the commission should deny the motion under either standard.

Kammen returns for rebuttal and acknowledges that the government provided declarations from witnesses, regarding the rational basis for this policy. But when the defense asked to cross-examine those witnesses, the government wanted to withdraw them. In effect, there is no evidence upon which the commission may make a rational justification determination. Nor does the defense buy Lt. Morris’s claim that someone accidentally informed Al-Nashiri that he would be allowed to engage in supervised Skype calls; the Guantanamo environment is “too controlled” for something like that to happen. At the very least, the commission should grant the defense’s motions in AE 284Q and 284R to compel witnesses to testify on the Guantanamo policy and explain why Al-Nashiri was prematurely informed that he would have supervised Skype calls.

Lt. Morris is up again and stresses that the proper standard here is deliberate indifference, not rational justification. Judge Spath acknowledges that the 284 series of motions certainly started that way, but, due to Hatim and the Defense Department policy, may now require a rational basis review. However, it is up to the defense to present evidence showing there is no rational basis for not allowing Al-Nashiri to have supervised Skype calls. Lt. Morris stresses that the defense has failed to make the case for the Skype calls under either standard. But shouldn’t the defense get an opportunity to show, through witnesses and other evidence, that the policy is irrational? Lt. Morris says that they do get one, subject to the military commission rules.

The last word goes to Mr. Kammen, who highlights the government’s efforts in this and similar litigation to present evidence through declarations without allowing the defense an opportunity to cross-examine witnesses. He also argues that the distinction between high- and low-value detainees may have made sense early on when detainees had immediate intelligence value, but it is absurd and arbitrary to continue that distinction where a detainee has been held for over a decade. Finally, Kammen pushes the judge to give the defense the tools it needs to meet its burden on this issue.

Before wrapping up, Judge Spath asks for an update on Al-Nashiri’s medication to calm his stomach. Sher says that the accused will have an opportunity to receive his medication over the break, and with that the commission recesses until the afternoon.

11/5 Session #1: Arguing to Reargue

Thursday, November 6, 2014 at 9:50 AM

Military judge Vance Spath opens Wednesday’s motions proceedings with AE 181G, a defense request to reargue the underlying defense motion to remove the possibility of the death penalty for Al-Nashiri if he is not given access to classified information presented against him.

Judge Spath notes that after the parties argued the underlying motion in February, the government said that it does not plan to offer classified information against Al-Nashiri. It further agreed to allow Al-Nashiri to see classified evidence in the case using a “Display Only” banner. Defense counsel Capt. Daphne Jackson explains that this change in the government’s position is exactly why the commission should allow the parties to reargue the motion: Not only does the government’s concession raise additional questions, but it also affects the arguments that the defense team would have presented when originally arguing the AE 181 motion.

Anticipating the government’s response, Judge Spath points out that this sounds like “no good deed goes unpunished,” wherein the government tries to address defense counsel’s concerns only to be hit with a motion to reargue. Capt. Jackson responds that the “Display Only” exception applies to a limited universe of classified evidence that prevents the defense team from discussing specific issues with Al-Nashiri that are relevant to the death penalty case. Of course, the Supreme Court acknowledged in the Zacarias Moussaoui case that the prosecutor in a capital case could withhold classified information in the run up to a trial, says Judge Spath, and that case was decided before the original argument of the underlying motion. Why should the government’s willingness to provide more information than is required serve as grounds to reargue this motion? Capt. Jackson acknowledges that there is no new case law on this subject since the underlying motion was argued, but presses the point in closing that the government’s proposed “solution” is anything but, and the defense would like a chance to argue that on this motion.

With much of the government’s position laid out by Judge Spath in his colloquy with Capt. Jackson, prosecutor Justin Sher briefly rehashes the government’s objection to the defense request for reargument with minimal interruption by the judge. First, he notes that it is well settled that “the accused may not access any and all classified information produced in discovery.” If the defense wishes to present certain documents to Al-Nashiri, it can raise those specific issues to the government as they come up. Further, Sher clarifies at the prompting of Judge Spath that the government will allow Al-Nashiri to see any classified information presented at trial either by the government or, if presented by the defense, that is deemed relevant and admissible by the judge, subject to government-proposed substitutions that would place the accused in substantially the same position. Finally, the defense offered no new facts or change in the law that would warrant reargument of the underlying motion.

On rebuttal, Capt. Jackson runs up against continued questioning from Judge Spath, who keeps pushing the “no good deed goes unpunished” aspect of the defense’s motion. Out of this back and forth, Capt. Jackson clarifies that the government’s unilateral decision to allow the defense to share some classified information with Al-Nashiri is essentially a change in the law and the facts that changes the defense’s approach to these issues.

The government passes on a final rebuttal and Judge Spath moves to the next motion, AE 205BB, another defense motion to reargue an underlying defense motion to abate the commission proceedings until Al-Nashiri receives adequate medical care. Up for the defense is Maj. Tom Hurley, who begins by listing what has changed since the parties originally argued the underlying motion: First, President Obama admitted that the United States “tortured some folks,” presumably including Al-Nashiri. Next, the D.C. Circuit’s recent decision in Hatim v. Obama demonstrates the “rigorous factual analysis” that courts should apply in detainee treatment questions. While the legal standard for judging Al-Nashiri’s medical treatment—deliberate indifference—has not changed, Maj. Hurley argues that, under the new, factually intensive standard for these issues, the defense should have been allowed to present evidence and witnesses in the original argument that would speak to the medical staff’s deliberate indifference to Al-Nashiri’s medical care. Judge Spath notes that Hatim did not address medical care issues, but the question of that case’s applicability here might require a motion of its own. Finally, Judge Spath returns to Maj. Hurley’s earlier point that President Obama admitted that the US tortured detainees, asking whether it matters whether Al-Nashiri’s treatment is described as torture or enhanced interrogation. Maj. Hurley explains that the fact that Al-Nashiri was tortured goes to the deliberate indifference of his medical treatment, because his treating physicians never acknowledged that he was tortured nor made any effort to determine whether he was tortured.

Lt. Bryan Davis rises for the prosecution.  And just as he claims that no facts or law have changed to warrant reargument, Judge Spath interrupts. Is the government arguing that Hatim didn’t change anything? Lt. Davis points out that Hatim essentially affirmed past case law and no one questions that the deliberate indifference standard applied during the original argument and applies now. This issue was extensively litigated in the original argument and there is enough evidence in the record—including medical records and the testimony of the treating psychiatrist and senior medical officer—to show that Al-Nashiri’s medical staff was not deliberately indifferent. While the defense may argue that it did not have an opportunity to present all the evidence, that is not a new fact or a change in the law and so cannot justify reargument.

After a brief rebuttal from Maj. Hurley, both sides rest on this motion. Judge Spath explains to Al-Nashiri his right to be present at the proceedings and his right to waive his presence and then calls a brief recess.

This Week’s Hearing in Al-Nashiri

Wednesday, November 5, 2014 at 9:03 AM

A little programming note here, y’all: today marks the first of a two-day, pre-trial hearing in the military commission case of United States v. Al-Nashiri.  But Lawfare unfortunately won’t be in the house, so to speak—which is to say that your correspondent will not be able to schlep out to Fort Meade, to watch and report back on the piped-in, almost-live CCTV coverage of the action down at Guantanamo.

We thus resort to our usual “backup” procedure. The estimable Matt Danzer will read the transcript of each day’s proceedings—as soon as one becomes available—and thereafter write one or more posts digesting the day’s most significant developments.  Stay tuned…

Chief Prosecutor Statement on This Week’s Hearing in Al-Nashiri

Wednesday, November 5, 2014 at 6:13 AM

Brig. Gen. Mark Martins’ remarks on the two-day pre-trial session, which commences today, can be found here.  (Note that the hearing will proceed, despite the pendency of the United States’ appeal of the dismissal of charges relating to Al-Nashiri’s alleged role in an attack on the M/V Limburg.)

From the statement:

Between pre-trial sessions, significant work has remained underway. Since the August
sessions, the parties have briefed in writing 32 pleadings, and the Commission has issued 49
orders or rulings. Among them are an order scheduling additional pre-trial sessions in December and every month from February through June 2015 (AE 203J); an order granting a government motion for an evidentiary hearing during which the government will seek to pre-admit 93 photographs and three videos of USS COLE (DDG 67) and the surrounding area (AE 283C); a ruling denying a defense motion to strike the death penalty as a due-process violation (AE 264B); and an order granting a defense motion for a timeline governing the provision of
discovery regarding the CIA’s former Rendition, Detention, and Interrogation Program (AE
120OO). Also since August, the government has reproduced discovery with markings enabling
the defense to display classified information to the Accused (AE 45JJ), and it has produced
higher-resolution photographs of latent fingerprints (AE 45LL).

Here are additional examples of the cumulative work that has been accomplished to date:

• More than 240,000 pages of material comprising the government’s case against the
Accused, as well as material required to be disclosed to the defense under the
government’s affirmative discovery obligations, have been provided to the defense under
protective orders long in effect in this case.
• The parties have briefed in writing 366 motions and have orally argued some 276
motions in previous pre-trial proceedings.
• Of the 366 motions briefed, 44 have been mooted, dismissed, or withdrawn; 261 have
been ruled on by the Commission; and an additional 32 have been submitted for and are
pending decision.
• The Commission has now received testimony from 11 witnesses in more than 14 hours of
testimony, with all witnesses subject to cross-examination, to assist it in deciding pre-trial
• The parties have filed 34 exhibits and 19 declarations alleging facts and providing
references to inform the Commission’s consideration of the issues.


8/15 Session: Hashing Out a Protective Order

Wednesday, September 17, 2014 at 9:16 AM

Military judge J. Kirk Waits begins Monday’s session in the military commission case against Hadi with some housekeeping matters: the detailing of a new member of the defense team, Lt. Col. Thomas Jasper, and the release of an outgoing member, Lt. Col. Chris Callen.

The commission explains that it will not release Callen until his orders expire at the end of September to allow the defense to utilize him for the filing of ex parte and sealed listings of motions that the parties intend to bring in the case. Judge Waits also points out that with the addition of Jasper and impending departure of Callen, Hadi still has two military-detailed counsel, when the military commission rules allow only one such detailed counsel. Hadi must retain civilian counsel at no expense to the U.S. government.

With those matters out of the way, Judge Waits briefly recaps a Sunday conference he held with counsel on some scheduling and other matters, after which the commission turns to AE 013, a government motion for a protective order for classified information in the case. Because the government has the burden on this motion, civilian prosecutor Mikeal Clayton rises on behalf of the government. Clayton points first to the language of the Military Commissions Act and 10 U.S.C. § 949p-3, which say that the commission “shall” issue a protective order of this kind at the request of the government. He notes that what the defense objects to is the “additional granularity” in the government’s proposed order, such as the roles of various personnel and the processes for filing and handling information.

Clayton turns to an objection-by-objection analysis. The defense would like the protective order only to cover facts concerning “enhanced interrogation techniques,” while the government proposes it cover “interrogation techniques.” Clayton explains that there are many classified facts pertaining to “an interrogation technique, enhanced or otherwise.” Nor were enhanced interrogation techniques applied to Hadi, so adding the word “enhanced” in this case would render that portion of the order useless. Next, the defense proposes specifying that information may not be disclosed “where the very existence of the information is classified.” While the government does not object to this change, Judge Waits says the commission might have trouble with the addition without a further specification that this would constitute an “unauthorized disclosure.” Clayton accepts thats change so that the sentence in the order would now read: “Confirming or denying information where the very existence of the information is classified constitutes unauthorized disclosure of that information.”

On to the next objection—the defense rejects a portion that designates the original classification authority (“OCA”) as the body that determines what information is “need-to-know.” Clayton explains that the executive branch owns classified information and may designate the individuals who make “need-to-know” determinations. Finally, Clayton responds to the defense’s general objection to applying the order to Hadi’s observations. If the objection is to classifying his observations, Clayton notes that courts give “great deference” to the government on such questions. However, if the objection is to restricting the accused from relaying his observations to others outside the context of this litigation, Clayton says that the order would only restrict the defense team from sharing classified information revealed by Hadi with others outside the context of the litigation, or Hadi from sharing classified information revealed as evidence during the trial with others.

Air Force Maj. Ben Stirk rises for the defense. He starts by noting that the two sides “are actually very close together” on the issues, and the defense requested this oral argument primarily to object more broadly to the “body of secret evidence and secret discovery that may not be available to” Hadi. Turning to the defense’s specific objections, Stirk withdraws the objection to classifying Hadi’s observations in light of the prosecution’s clarification, as well as the request to add the word “enhanced” after the government’s admission that Hadi was not subjected to enhanced interrogation techniques. The defense also accepts the language on unauthorized disclosure that Clayton and Judge Waits discussed. The defense’s primary concern, says Stirk, is the need to clear the documents it deems important to its case through a court security officer and the OCA in order to discuss them with Hadi. Further, Stirk notes the danger of a conflict where the OCA prohibits the defense team from sharing documents with Hadi, while the commission determines that those same documents must be disclosed under discovery rules.

Judge Waits acknowledges the defense’s objection and turns to the government for the last word. Clayton explains that the commission statute has multiple remedies to address the defense’s concerns about conflicts between discovery rules and a “need-to-know” determination. Those remedies must be applied on a case-by-case basis when necessary, rather than a broad ruling now by the commission.

Judge Waits runs through some final scheduling matters and then declares the commission in recess until November 17.

World War II-Era Herbert Weschler Memo on Conspiracy as War Crime

Monday, September 8, 2014 at 4:20 PM

This is a pretty interesting document: A 1944 memo from Herbert Weschler, then assistant attorney general, outlining the U.S. government’s developing view of conspiracy as a war crime. The interesting thing is how similar the internal discussion of the subject in 1944 is to the one going on now in the Bahlul case—and how similar Weschler’s conclusions are to those the government has come to after long internal deliberations.

The document was filed as as attachment to this pleading in the Nashiri military commission, which notes that the government’s current approach to conspiracy is “consistent with high-level Executive Branch consultations that have occurred in prior United States law of war prosecutions” and cites the memo as an example.

In fact, the similarities are pretty striking: Weschler in the memo acknowledges that there may be a U.S. common law of war approach under which inchoate conspiracy is available as a crime. But as this is not universally accepted, he instead urges—just as the military commission prosecutors are now and for much the same reason—limiting conspiracy liability to instances of a completed offense.

Here is the key exerpt from the memo, written to Attorney General Francis Biddle: Read more »

8/14 Session #2: On Severing Al-Hawsawi

Friday, August 15, 2014 at 7:49 PM

With no more conflict motions for today, the Special Review Team swaps out and the normal prosecutors come back. The court begins with AE 299, a motion by Mustafa al-Hawsawi’s defense team seeking to sever his case from the rest of the accused so that his case can proceed while the others deal with the many conflict issues.

CDR Walter Ruiz, representing Al-Hawsawi, explains that his team is ready to proceed, especially given some pressing issues in Al-Hawsawi’s case and the number of thorny issues left to be resolved for the other four accused—the conflicts of interest motions partially addressed in the earlier session, which Al-Hawsawi has not joined, plus a number of motions regarding Binalshibh. Key among the matters that the court must resolve quickly in Al-Hawsawi’s case: the conditions of his confinement, which Ruiz describes as “violative of international conditions of law and humanitarian standards.” A separate trial also avoids problems of “guilt by association” and is “the best vehicle for him having a fair and a just verdict based on the honest and sincere assessment of facts as they relate to him.” He also rejects the prosecution’s focus on joint trial precedents from the federal judicial system, distinguishing that system, with its preference for joint trials and efficient administration of hundreds of cases, from Guantanamo’s military commissions—which are organized to handle a limited universe of trials. In support, Ruiz points to the commissions’ rules, which warn against procedurally complicated joint trials in Rule 602(e)(3) and allow for severance where there is prejudice and good cause shown under Rule 906(b)(8). He also says that the Supreme Court’s joint trial jurisprudence in Zafiro v. United States favors judicial discretion in severance decisions, directing courts to focus on the complexity of the case, degrees of culpability, and the facts. Finally, preempting questions about why the defense team has not filed a demand for a speedy trial, Ruiz points to case law saying that a motion for severance acts as notification to the court “that we no longer acquiesce to sustained and long pretrial litigation delays that are unrelated” to Al-Hawsawi’s case.

After the defense’s lengthy presentation, Brig. Gen. Mark Martins rises for the prosecution and begins by laying out the legal standard for severance created in the Zafiro case that Ruiz mentioned: Severance is appropriate where (1) the defendants were properly joined and (2) “there is a serious risk that a joint trial would compromise a specific right of one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence.” Why should the commission care what Zafiro says when that case was based on the federal rules, and not military commission rules? Because the court-martial rules are based on the federal rules and actually refer to the rules applied in Zafiro. Nor is Zafiro a simple command for judicial discretion; the majority opinion in that case suggests a “strong preference” for the relevant considerations. Applying those factors, Martins says that the defendants were properly joined under Rules 601(e)(3) and 906(b)(8) of the military commission; that the right to a speedy trial cannot be violated if Al-Hawsawi has not independently sought to vindicate that right; and that the court can alleviate the risk of prejudicial spillover from proof marshaled against the other defendants through a number of mechanisms less radical than severance.

Turning to rebuttal, Ruiz rejects the prosecution’s characterization of the delay as a result of the defense’s conduct. Al-Hawsawi “is decidedly the co-accused on the sidelines in this case. There are a number of issues that the commission is working through that are not of his own doing and that have nothing to do with [his] conduct.” After a brief exchange on the MOU issue that seems to keep cropping up, Judge Pohl pushes Ruiz to move on with his severance argument, which Ruiz does after some rather emphatic prompts from the court. He notes that the “specific right” violated in this instance is Al-Hawsawi’s right to individualized justice and effective administration of justice. Al-Hawsawi is implicated in only some of the overt acts and conspiracy claims alleged in this case and so his case should be severed.

With the argument on severance completed, the court turns briefly to AE 283, a request by KSM lawyer Maj. Jason Wright for Judge Pohl to appoint him as a civilian attorney when Wright is released from active duty on August 26. Judge Pohl and the prosecution both wonder whether the commissions have the power to direct the convening authority to hire a civilian. Wright agrees to address arguments on this issue in a brief to the court and the commission recesses.

8/14 Session #1: Conflicts, Conflicts Everywhere

Friday, August 15, 2014 at 11:26 AM

After agreeing Wednesday to reconsider the severance of Ramzi Binalshibh from the other four accused in the 9/11 case, Judge Pohl reconvenes the commission on Thursday with a full house—all five accused, their defense teams, and the Special Review Team on behalf of the government. The usual prosecution team is recused from the morning’s proceedings so the commission can address potential conflicts of interest.

The court turns to the AE 292 series of motions, all pertaining to Judge Pohl’s order, AE 292QQ, on potential conflicts of interest arising from past FBI interviews of defense team personnel. As a quick refresher, that order found no conflict for four of the accused—all but Binalshibh—and ordered further inquiry into potential conflicts for Binalshibh’s defense team. After some initial housekeeping allowing various defense teams to take the full 14 days afforded by the commission rules to file responses to motions, Judge Pohl turns to a joint motion by three of the accused—Khalid Shaikh Mohammad, Ali Abdul Aziz Ali, and Bin Attash—for reconsideration of the portion of 292QQ that found no conflict of interest in their defense teams.

Learned Counsel David Nevin, representing KSM, is particularly concerned that the court based its order on incomplete declarations from the FBI agents involved in the incident. While the agents limited their declarations to the existence of criminal investigations (as opposed to intelligence or other investigations) into the defense teams, Nevin says the agents’ questions to Binalshibh’s defense security officer (“DSO”) indicate that they were also investigating the other defense teams. Given the extent to which the defense teams inevitably work together and the possibility that the FBI left a “poison pill” keeping team members from taking certain actions, the investigation “creates an environment of restricted advocacy.” Considering all of this uncertainty, Nevin requests the same inquiry into potential conflicts that the court ordered for Binalshibh. After Judge Pohl and Nevin briefly rehash the almost year-old debate over whether counsel for the accused must sign a memorandum of understanding regarding rules imposed by the case’s protective order before they can receive classified information, Nevin concludes by asking the court to reverse or reconsider its order and provide a “thorough inquiry” into potential conflicts in the KSM team.

Next up is Aziz Ali lawyer James Connell III on the same motion. He begins by highlighting some of the continued effects of the FBI investigation into the defense teams, which the FBI says it closed in June. First, his team had to cancel a witness interview because it is unclear what information the Binalshibh DSO revealed about a prior visit with that witness and the accused does not know whether to trust his counsel. Second, Connell cannot travel to the Middle East with the same KSM linguist as on a prior trip because of uncertainty over the result of the investigation. And finally, there is concern that counsel will trigger a new FBI investigation by communicating with his client. To address these concerns, Connell is asking the court to order the commission’s convening authority to allow the Chief Defense Counsel (“CDC”) to appoint, if appropriate, independent counsel to advise Aziz Ali on the issue and allow the accused to decide whether to provide informed consent to a potential conflict. Why does the CDC need a court order to appoint independent counsel? Connell says he will request a statement from the CDC on the issue and concludes.

A bit more housekeeping: Judge Pohl grants a request by Bin Attash’s lawyer Cheryl Bormann to argue after the Special Review Team on this motion, and Binalshibh’s lawyer Jim Harrington opts not to argue this matter until his team files a response to the Special Review Team’s motion for reconsideration. The court then turns to Kevin Driscoll, arguing for the Special Review Team against the joint motion for reconsideration. He explains that the FBI investigations into a non-attorney member of Binalshibh’s team and a non-attorney member of KSM’s team have been closed “for some time” and the government has provided assurances that no current member of any defense team is currently under investigation. Driscoll also dismisses the notion that the FBI left a poison pill in one of the defense teams. These facts are enough to defeat further inquiry into potential conflicts for three of the accused, and “speculative fear of investigation” cannot create a conflict of interest.

Bormann passes on an opportunity to be heard, so Nevin returns for rebuttal and emphasizes that everything in the Special Review Team’s argument against further inquiry for the three accused was true for Binalshibh, yet the court found it proper for further inquiry in his case. Nevin also disputes the proposition that fear of investigation cannot produce a conflict of interest, arguing that the Special Review Team is misinterpreting some case law. Judge Pohl points out that this approach puts the determination of a conflict in the hands of defense counsel. After all, he already found in his original order that there is enough information to determine there is no conflict of interest. What happens if the judge reconsiders, conducts an inquiry, and finds no conflict, but the defense teams still fear investigation? Nevin responds that under rules of professional conduct, he is required to withdraw from the case if he believes he has a conflict of interest, but currently the government and the court have not provided him—or the court—with any information with which to assess whether the defense teams’ fear of investigation is reasonable. Nor is it entirely clear that the FBI’s internal inquiry into the investigations actually showed that there are no investigations into the defense team. Nevin raises the possibility that those who conducted that inquiry did not have the security clearance necessary to learn about ongoing investigations.

Connell and Driscoll also offer brief rebuttals, after which the court takes a break.

8/13 Session: Severance, Re-Reconsidered

Thursday, August 14, 2014 at 12:43 PM

Army Col. James Pohl starts Wednesday’s brief session begins with a summary of where things stand in the case of United States v. Binalshibh: On Monday, the prosecution presented argument on its motion for reconsideration of the court-ordered severance of Binalshibh from the other four accused in the 9/11 case, with an oral response from the defense before filing its opposition. Today, the defense team has submitted its pleadings and is prepared to present additional oral argument.

Learned Counsel Harrington rises for the defense and begins by answering Judge Pohl’s question from the last session: Binalshibh and the defense team support the severance. Harrington then reiterates his arguments from Monday: The matter of conflicted counsel must be resolved before this case can proceed and the prosecution does not meet the threshold for seeking reconsideration of the court’s order.

Prosecutor Clayton Trivett notes that the government has waived its right to file a reply brief to the defense’s opposition in the hopes of resolving this issue quickly. So why does the government oppose Judge Pohl’s severance order? For one thing, only the prosecution has the power to determine what is in the best interests of the victims in this case—not the court and certainly not the accused—because ultimately it is the prosecution that must present a case that will carry its burden of proof. Trivett calls the notion that “Binalshibh’s views somehow matter” on this issue “the most offensive thing to date that’s come from” defense counsel. There is no justification for a severance until one of the accused is prejudiced by the joint trial or will cause unreasonable delay in the trial. But should the court look at unreasonable delay retrospectively or prospectively? After all, the issues in the Binalshibh case have already delayed the 9/11 case for ten months and it’s unclear how much longer it will take to resolve conflict questions. Trivett says that all some of the other accused have raised conflict issues now, so the case is not stalled due to Binalshibh alone, and it is not clear that any of the issues left to be resolved in this case will take a substantial amount of time. Further, the defense, which usually holds the burden for demonstrating prejudice due to a joint trial, has not presented any evidence that the joint trial will prejudice Binalshibh.

Harrington returns to the procedural issues on rebuttal: The prosecution has not shown that the court’s order works a “manifest injustice” and so reconsideration is inappropriate. He also points out that the defense does not have a burden to demonstrate prejudice where the severance was on the court’s initiative and not prompted by a defense motion. Nor should the prosecutor take umbrage with the defense for pointing out the effect of delay on the victims’ families; after all, it is the government that keeps raising that issue. And what of the delays due to some of the other accused? Is the defense saying there should be five separate trials? The conflict issues in Binalshibh’s case are particularly complex, says Harrington, and will likely delay the trial far longer than the issues raised by other accused.

At the conclusion of oral argument, Judge Pohl grants the prosecution’s requests that the court reconsider the severance order and hold the order in abeyance. A written order is forthcoming. The court will next meet with all five of the accused present.