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The Loss of MH17 Over Ukraine

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Thursday, July 17, 2014 at 4:04 PM

Much will, no doubt, be written about the destruction of Malaysian Flight 17 today over Ukraine.  Early speculation is that the plane may have been destroyed by Ukrainian separatists, who deny the charge.  War on the Rocks (a generally useful military blog) has collected many of the most relevant bits of data that form the evolving mosaic of our knowledge.  I recommend it highly — readers can form their own opinions as to its import.

Chief Prosecutor Statement on Yesterday’s Arraignment in Al-Iraqi

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Thursday, June 19, 2014 at 10:08 AM

Here it is.  The text opens:

Good afternoon. Today Abd al Hadi al-Iraqi—an Iraqi national whose records indicate was born as Nashwan Abd al Razzaq in 1961 in the city of Mosul—was arraigned before a United States military commission on charges that, as a senior member of Al Qaeda, he conspired with and led others in a series of unlawful attacks and related offenses in Afghanistan, Pakistan, and elsewhere from 2001 to 2006. These attacks and other offenses allegedly resulted in the death and injury of U.S. and coalition service members and civilians. I emphasize that the charges against Abd al Hadi are only allegations. In this military commission, he is presumed innocent unless and until proven guilty beyond a reasonable doubt.

He also is afforded “all of the judicial guarantees recognized as indispensable by civilized peoples,” the requirement when conducting trials under the law of armed conflict. His trial will take place in accordance with the Military Commissions Act passed by Congress in 2009 and signed into law by the President of the United States that same year. His alleged crimes, which include violations long outlawed by the community of nations, have been codified as offenses triable by military commission within U.S. federal law. To the present date, he has been lawfully, humanely, and securely detained as an unprivileged belligerent, and since 2008, he and his attorney have had recourse to the writ of habeas corpus in federal court.

 

6/18 Session #1: That Was Fast

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Wednesday, June 18, 2014 at 2:52 PM

It’s go time at the Expeditionary Legal Complex, Courtroom Two. After some shuffling of papers and adjusting of microphones, the military judge, Navy Capt. J. Kirk Waits, calls the initial hearing to order.

Civilian prosecutor Mikeal Clayton rises and ticks off various housekeeping points: the referral of charges per Guantanamo rules, the closed-circuit broadcast of the day’s events, the names of his colleagues, and so on. And he explains that, yes, this is military commission case against Hadi—who we see at the defense table alongside his attorneys.  Judge Waits is next in marching through some procedural stuff, like his own detailing to the case. Then comes the accused’s principal defense attorney, Army Lt. Col. Chris Callen, who says his client will continue to need in-court translation services.

Hadi is asked to confirm representation by his lawyers, Callen as well as Air Force Maj. Robert Stirk and Navy Reserves Chief Jennifer Bailey. The accused does so, but at the same time asks the court to appoint more folks—seven—in light of the “destructive” events ongoing in Iraq and Afghanistan, and in light of the departure of one or more attorneys from his crew in the near future.  Hadi apparently refers to Callen, whose military orders soon will expire; the court is apparently sympathetic, and inclined to bring more lawyers onto the defense team at some stage. On that issue, Callen tells Judge Waits that the Chief Defense Counsel is actively seeking a replacement lawyer.

There’s a battery of right-to-counsel questions now, each of which Hadi answers in the affirmative: does he understand that a detailed attorney will be provided free of charge? Does he understand that any additional, civilian attorneys cannot be subject to discipline prior to appointment? Does he desire to be represented by his detailed counsel? And so on like this, for some time—all followed by a “yes,” from the accused.

Now to challenges. The military judge thinks there’s no grounds to doubt his appointment. Do the parties have in any questions in this regard? The prosecution seemingly does not. But the defense does; Callen thus ever briefly inquires about, among other things, personal or professional interactions between the Convening Authority and the court.  There haven’t been any, per Judge Waits—he says he’s never met the Convening Authority. And, Waits tells Callen when asked, the military judge never met any victim killed in the 9/11 attacks, or in the Gulf wars or the war in Afghanistan, either.  So much for voir dire.  Neither side mounts a challenge to Judge Waits’ assignment to the case.

Soon we learn that yesterday and today, the parties and the court held Rule 802 conferences, and there discussed marching orders for today’s arraignment and the case more broadly. Summarizing, Judge Waits trots through some of the logistical issues covered at the conferences—a possible litigating schedule, the volume of classified material in play and so on.  With his synopsis out of the way, the accused is now arraigned.

Clayton returns to the podium and announces the general nature of the charges: denying quarter, using treachery or perfidy and the attempt to use both, and conspiracy.  For its part, the defense waives a further reading of the charges—thus greatly streamlining the day’s events.

When asked, Hadi rises and, through counsel, reserves the entry of any plea.  (We’ll thus await an order setting the time for pleas and motions.)

Neither side has anything further; the arraignment hearing thus comes to a swift close.  That was fast.

Abd Al Hadi Al-Iraqi Arraignment

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Wednesday, June 18, 2014 at 1:49 PM

This afternoon, Abd Al-Hadi Al-Iraqi will be arraigned before a military commission at Guantanamo.

As per usual, video and audio of the pre-trial proceedings will be zapped, via closed circuit television, to Fort Meade’s Smallwood Hall; and as per usual, Lawfare will travel to Smallwood, view the broadcast and post almost-live dispatches in our “Events Coverage” section.  We’ll post links to those dispatches below, too.

The hearing is set to begin at 2:00 p.m.

6/18 Session #1: That Was Fast 

6/16 Session #4: Reply Argument on FBI Investigations

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Monday, June 16, 2014 at 3:27 PM

We’ll hear reply argument now, on the defense’s filings in the AE292 series—-which arise because of past FBI interviews of defense team personnel, and which ask the court to abate the proceedings and allow discovery into possible conflicts of interest.

Up first is James Connell III, lawyer for Ammar al-Baluchi, with three points. Point One: the government’s claim, that there “is” no investigation, is heavily fact-dependent, according to Connell.  The government would have had to acknowledge an ongoing investigation earlier, when the defense filed its emergency papers; only because of delay have the FBI investigations in question purportedly closed.  So what’s the relevant timeframe for analysis?  Connell thinks it is February through May—when a conflict, to his eye, undeniably existed. Point Two: the government, in support of its position, doesn’t account for the different rules governing pre- and post-conviction conflicts.  The Special Review Team relies heavily on the rules governing the latter, but we’re concerned here with the former.  The court wonders whether Connell could actually engage in discovery litigation, given Campoamor-Sanchez’s remarks earlier (if there’s a conflict now, can counsel participate anyway?); but Connell thinks so, given that the inquiry into the conflict’s existence is still ongoing.   That’s in keeping with the relevant case law; Campoamor-Sanchez would have the court declare the existence of a conflict first, and then bar counsel from participation thereafter until waiver; but the relevant cases call for a factual inquiry first, by current counsel, and conflict decisions (and any potential exclusion of conflicted attorneys or waivers) afterwards, as needed.  And independent counsel can step in to litigate any issues during the latter phase, says Connell.

When asked, Connell again doubts the Special Review Team’s claim that no investigation is ongoing; instead the government only has said that the FBI has shuttered its preliminary inquiry.  Judge Pohl seemingly sees little in the distinction, and soon moves on to the question of what to do, now, if in fact no conflict exists. Connell eventually agrees that his side would then be without a remedy, for constitutional purposes—though the defense would still have independent ethical obligations to advise clients about their rights to conflict-free counsel, and the need to waive any conflicts as found by the attorneys, whether present or past.  Connell then wraps up with Point Three: conflict does not mean “mandatory discharge, “ or “withdrawal,” as the government (and even Nevin) seemingly suggested.  Again, there’s a process in play, which Connell asks the court to employ: inquire first, and then determine conflicts later.

Connell sits and KSM lawyer David Nevin stands.  First he responds to Campoamor-Sanchez’s suggestion that no conflict exists for the bureaucratic reason that military commissions can’t try civilian defense lawyers.  (The cited cases involved a single prosecutor, investigating defense counsel while also trying to send the defense lawyer’s client to jail.) That’s quite a red herring, argues Nevin, given that the United States is functionally opposed to his side, and that all of its prosecutorial elements essentially intertwined in any event. Then there’s Campoamor-Sanchez’s “you-say-you-have-a-conflict-thus-you-can’t-litigate” argument, and the “you-say-you’re-chilled-by-a-conflict-but-are-zealously-litigating-argument—both of which Nevin bats down as irrelevant.  By law, the commission always must inquire into a conflict’s possible existence, and can accordingly deputize Nevin or whoever else in order to uncover any needed facts.  Finally, Nevin joins in Connell’s skepticism of the Special Review Team’s representation about the closure of the FBI’s preliminary inquiry: that’s not enough, under applicable case law.  The latter, says the attorney, is triggered not merely when an investigation is ongoing, but also when defense counsel reasonably fears reprisal. Both are true in this exceedingly unique case, Nevin argues.  For his part, Judge Pohl is confused: he isn’t clear on how he can order discovery into the fact that there’s no FBI investigation ongoing. One cannot prove a negative, after all. Nevin replies as before, with an urgent call for greater scrutiny of the government’s investigations of the defense. Read more »

6/16 Session #3: The Defense and Special Government Counsel on FBI Investigations of … The Defense

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Monday, June 16, 2014 at 1:05 PM

James Connell III, Learned Counsel for Ammar Al-Baluchi, begins on a procedural note: the defense’s motion is less about wrongdoing, and more about the path forward. The court must perform an inquiry, the outcome of which will lead to conflict determinations, both by the court (for constitutional purposes) and by the defense (for ethical purposes).  Most conflicts can be waived, but some cannot.  In the event of a waiveable one, Connell says, the proper move is for the military commission to advise the accused of his right to conflict-free counsel, and to allow the accused to make an informed choice about whether or not to continue with his lawyer.

Procedure out of the way, Connell turns to substance.  As far as he and his client are concerned, a conflict already has arisen. Al-Baluchi has been exquisitely careful with his confidences, Connell tells the military judge.  He hasn’t allowed the Red Cross to use his name, for example; the client also hadn’t even met with counsel until February 2013.  This stemmed from Al-Baluchi’s lack of confidence in the attorneys’ capability to shield lawyer-client secrets.  Despite this initial skepticism, the client nevertheless allowed Connell to try and make some headway, by undertaking critical fact investigation abroad.  Connell did this alongside the Binalshibh team—and, in particular, Mr. Cruz, the Binalshibh team investigator who (we now know) was interviewed by the FBI.  Connell and company later made a second trip, this one with KSM’s team, and the linguist who—you guessed it—was interviewed by law enforcement personnel.  The idea is plain enough: Connell’s traveling companions could have learned some confidential information regarding Al-Baluchi, and later turned it over to FBI guys.

There’s another wrinkle.  Connell had sought review of a letter, written by his client to and intended for a foreign witness; upon approval by GTMO reviewers, the lawyer wanted to use this letter, in seeking to establish a rapport with the witness.  But he held back, in light of the FBI’s investigation—which, Connell suggests, concerned the passing of unauthorized information from defendants to third parties. And Connell had to tell his client that he opted for this perhaps less than helpful tactic, not because the client desired as much, but instead because the FBI was then conducting a criminal investigation.  (It happens that, in a court declaration, an FBI agent indeed had said that facilitating defendants’ communications with others may constitute a crime.) The impact on Connell’s behavior—and the existence of a conflict, now—is straightforward, he argues. With that in mind, Connell also says he has identified an independent counsel for Mr. Al-Baluchi, Ms. Lee, who is willing to be appointed, acceptable to Al-Baluchi, and able to advise the detainee on any conflicts questions.  Connell asks for Lee’s appointment, which in his view will be necessary as an ethical matter regardless of a constitutional conflict’s existence.  Lastly Connell follows with summary argument on discovery motions related to AE292 (which witnesses he’ll need, the parties who will make use of discovery information, and so on).  He then returns to counsel table.

Last for the defense is Walter Ruiz,  lawyer for Mustafa Al-Hawsawi.  The attorney asks for an unusual “severance”—that is, for a separate and immediate ruling for Ruiz’s client on conflict issues. Ruiz explains: despite initially having joined the defense’s joint emergency abatement motion, he’s since learned further information.  And, based on that, Ruiz says he doesn’t know of any actual conflict between his interests and Al-Hawsawi’s. (Of course the court knows more than Ruiz does, given the government’s secret ex parte submissions; it is therefore in a better position to suss out the possibility of a conflict, says Ruiz.)  The lawyer emphasizes the uniqueness of the facts as they relate to Al-Hawsawi. For example, unlike the other defense lawyers, Ruiz has interviewed Mr. Gilhool, a former investigator for the Al-Hawsawi team apparently involved in the FBI interview process. Summing up, Ruiz says he defers to the court, given its superior knowledge of the relevant facts—but also says the known facts satisfy him that no current conflict is in play. Read more »

6/16 Session #2: The Defense on FBI Investigations of … The Defense

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Monday, June 16, 2014 at 11:26 AM

It’s on again.  After brief housekeeping, we quickly turn to the substance—and in particular to AE292 and 292T, pleadings jointly filed by the defense, and both asking for a wider inquiry into the government’s investigations of various defense team members and an abatement in the proceedings. In a recent order, the military judge had said that the information furnished by a “Special Review Team”—the judge’s term for outside DOJ counsel—had not adequately addressed the issues raised by the defense in their filings.  (The Special Review Team filed both ex parte and public submissions regarding the FBI’s inquiry.) Thus the presence, today, of Campoamor-Sanchez and company, and the absence of the Chief Prosecutor and his team.

Argument begins with Ramzi Binalshibh’s civilian death penalty lawyer, Jim Harrington.  But instead of conflicts, he first speaks of continued mistreatment of his client by the GTMO guard force. Lately, the detainee has been harassed and mocked by guards, and awakened from his sleep at all hours, according to counsel; Harrington thus asks for an order putting a stop to the abuses.  And he insists that, contrary to the prosecution’s suggestion, Binalshibh isn’t mentally ill, and hasn’t imagined any of the abuses.

His request lodged, the lawyer pivots back to AE292. In short, Harrington tells the military judge, Army Col. James Pohl, that Harrington has learned that other defense personnel indeed have been approached by FBI investigators.  In particular, Harrington suspected that, in addition to his defense security officer (“DSO”), his investigator, Elbert Cruz, also had been interviewed by law enforcement.  (The latter denied being contacted by the FBI, but Harrington disbelieved Cruz.)  As a consequence, both the DSO and the investigator have departed the Binalshibh defense team—to the current detriment of Harrington’s current efforts in defending his client.  When asked, Harrington confirms that neither staffer was the focus of the FBI’s inquiry—and that the investigation’s target remains a member of Team Binalshibh.  (And added quirk: the FBI’s interviews were, according to Harrington, arranged by a former investigator for Mustafa Al-Hawsawi’s defense team, an investigator named Thomas Gilhool.)

The upshot: Harrington finds himself having to explain to Binalshibh that a potentially prosecution-aligned person was working on Binalshibh’s behalf for an extended period—a year and a half, when the lawyer tallies up the service of the DSO and the investigator. It’s troubling stuff, which undergirds Harrington’s bid to learn further information about the FBI, and thus, the possibility for conflicts.  Harrington adds that the government public response to the defense’s filings—that the investigations in question are closed, and that the 9/11 defense lawyers are not under any scrutiny—is completely inadequate.  Cases aren’t really ever closed, he argues.  And moreover, an investigation might not target a lawyer, but instead target defense staffers—and neverthless impinge upon the attorney-client privilege all the same. When asked, Harrington confirms that defense personnel generally can report criminal wrongdoing to the authorities.  That’s beside the point; his case is about a government attempt, from the outside, to intrude into defense privileges and to erode defense staffers’ allegiance to the client.  Harrington lastly emphasizes his ethical obligation to report real or possible conflicts to Binalshibh.  What can Harrington tell him, without knowing more about transpired?  We need full disclosure, Harrington argues—and discovery into the government’s inquiry.   Read more »

6/16 Session #1: Meet the DOJ Lawyers

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Monday, June 16, 2014 at 9:16 AM

Our special session convenes.  The scene differs a bit from the Guantanamo norm. Defense attorneys and staff are in the courtroom, along with the five 9/11 accused.  But, and consistent with the unique nature of the proceedings, the usual complement of prosecutors is missing. Instead we see a new squad of government attorneys—each presumably belonging to the special group of outside lawyers asked to inquire into, and report back on, the defense’s allegations regarding conflicts.

Without further ado the lead special counsel, Fernando Campoamor-Sanchez, identifies himself and presents his credentials—and does the same for co-counsel Maia Miller, Heidi Boutros-Gesh, and Kevin Driscoll.

Walid Bin-Attash’s Learned Counsel, Cheryl Bormann, rises and complains: she seeks a brief delay to speak with her client about attorney notes, which summarized events arising at Saturday’s pre-hearing conference; but which the Guantanamo Privilege Review Team would not process over the weekend. (She’s spoken to him since, but can’t be sure she recalled everything from her written record.) The court agrees to give the lawyer thirty minutes to chat with Bin Attash, just as soon as court and counsel have finished with some preliminary matters.

The most pressing of them has to do with, of course, the accused’s presence.  We thus march through the usual advice of rights.  Does each accused understand his right to be present, along with the bad consequences that might follow even a knowing, voluntary decision to absent himself?  When asked, all five accused say yes, they do understand.

Now its quick break time, to allow for Bormann to speak to Bin Attash.

Carrie Cordero’s Contribution to Cato Unbound Snowden Discussion

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Friday, June 13, 2014 at 11:36 AM

The other day, I linked to the first two contributions to Cato Unbound‘s forum, The Snowden Files: One Year Later.” Now Carrie Cordero has added an essay, which opens:

There is no doubt the Snowden disclosures have launched a debate that raises significant issues  regarding the extent of U.S. government national security surveillance authorities and activities. And Julian Sanchez’s essay Snowden: Year One raises a number of these issues, including whether the surveillance is too broad, with too few limits and too little oversight.  But an overarching theme of Sanchez’s essay is fear – and fear of what might be overshadows what actually is, or is even likely.  Indeed, he suggests that by just “tweaking a few lines of code” the NSA’s significant capabilities could be misdirected from targeting valid counterterrorism suspects to Americans involved in the Tea Party or Occupy movements.

So really, what would it take to turn NSA’s capabilities inward, to the dark corner of monitoring political activity and dissent? It turns out, quite a lot. So much, in fact, that after a considered review of the checks and balances in place, it may turn out to be not worth fearing much at all.

First, a little history. Prior to 1978, NSA conducted surveillance activities for foreign intelligence purposes under Executive authority alone. In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which distinguished between surveillance that occurred here at home and that which occurred overseas. FISA requires that when electronic surveillance is conducted inside the United States, the government seek an order from the Foreign Intelligence Surveillance Court (FISC or the Court) based on probable cause. So, if the government wants to conduct surveillance targeting a foreign agent or foreign power here in the United States, it must obtain FISC approval to do so. By law, the Court may not issue an order targeting an American based solely on activities protected by the First Amendment to the Constitution.  The Attorney General is required to report on the full range of activities that take place under FISA to four congressional committees: both the intelligence and judiciary committees in Congress.  The law requires that the committees be “fully informed” twice each year.

5/28 Session #4: On the Motion to Reconsider the RDI Discovery Order

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Wednesday, May 28, 2014 at 4:44 PM

We return from a recess-ette.  The parties quickly handle AE272, in which the defense asks the commission to replicate, in this case, a ruling entered in the 9/11 case.  Recall that in the latter, the FBI had conducted a security investigation, contacted a member of the defense team in connection with its inquiry, and ultimately asked the team member to sign a non-disclosure agreement. News of the episode shortly found its way to 9/11 defense counsel, who perceived a possible conflict of interest; on the defense’s motion, the military judge then effectively invalidated the gag order, and instructed any defense personnel contacted by investigators to make that fact known to the lead lawyer for each accused.  (For its part, the prosecution was entirely walled off from the FBI inquiry.)  Now Al-Nashiri’s defense wants a comparable order from Judge Pohl.  The prosecution doesn’t really oppose this—but scrupulously refuses to get involved beyond reiterating as much in open court.

We therefore turn to the week’s big-ticket item: AE120D is a prosecution motion to reconsider Judge Pohl’s prior ruling, which directed the government to turn over significant, classified discovery into the CIA’s notorious program of rendition, detention and interrogation—some ten categories of information overall.  In essence, the government now wants that order rescinded; or, alternatively, further clarification of the legal standard that the military judge has applied in ordering prosecutors to hand over sensitive material.

The Chief Prosecutor rises and asks the court for reconsideration, having in mind the applicable legal standard: an order should be revisited if either party shows new facts, or a clear legal error by the court. Martins cites some new facts: the defense has received extensive classified discovery already, by means of summaries of Al-Nashiri’s “experiences” within the RDI program—and some of this material, as of now, indeed can be shared and discussed with the accused.  That marks quite a change from before, gauging by defense counsel’s past complaints about their inability to speak with Al-Nashiri freely, about what the CIA did to him.  On to legal error: the Chief Prosecutor here cites military judge’s failure to consider rules governing the classified information privilege, as they relate to discovery.  Martins has in mind the Yunis and Sims cases—which noted the government’s compelling interest in protecting national security information, and insisted on respect for that interest, in the application of discovery rules. For that reason, the usual procedure allows for the crafting of legally adequate summaries for classified discovery, or sanctions against the government.  Initially, the court is puzzled: the government had denied the defense’s discovery requests, but didn’t rely on secrecy procedures in doing so; it instead objected instead on garden variety discovery grounds—relevance, materiality, and so forth right?    Read more »

5/28 Session #3: Members Versus Judges; Continuing Discovery Obligations

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Wednesday, May 28, 2014 at 2:36 PM

Action resumes at the Expeditionary Legal Complex, Courtroom Two.  Army Col. James Pohl, the military judge, calls the proceedings once more to order.

The defense, in AE267B, makes a due process argument: basic fairness insists upon Al-Nashiri being permitted to choose between a trial by military commission members, or by the military judge sitting alone. That’s fundamental stuff according to Navy CDR Brian Mizer.  He cites the Singer case.  This, he says, acknowledges no general right to a bench trial, true—but nevertheless recognizes that very possibility, where prejudice or passion or public sentiment might preclude a fair trial before a panel of military officers.  Well, Mizer says, that’s exactly where we are today; it is hard to imagine a case more likely to trigger prejudice than this one, for nearly everyone in the Navy recalls where he or she was on the date of the 2000 Cole attack. Mizer sure does.  (He adds that voir dire indeed revealed some prejudice in Hamdan, the only truly contested case—the lawyer discounts Al-Bahlul—yet tried by a commission.)

The lawyer next adds a word or two about Toth—which noted some distinctions between panels of military personnel and lay juries.  Laypersons, said the Toth court, are better suited to resolve a case fairly. Consequently, if no civilian venire is on offer, then a judge-only trial would be the next best option.  Judge Pohl is puzzled—why not then ask for a civilian panel?  Mizer says the defense has done that already.  But in any event, if Mizer has to choose between an untenured judicial officer, and a military panel potentially compromised by prejudice, then Mizer says he would opt for the former. To be clear, the lawyer isn’t making that call just yet.  Rather, Mizer is keen to establish and preserve his client’s capability, come trial time, to assess the temperament of the called members, and to opt for a bench trial if needed.  That will make the difference, in the end, between victor’s justice and genuine justice, argues Mizer. Read more »

5/28 Session #2: Protective Order Rules, and Ex Parte Contacts

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Wednesday, May 28, 2014 at 12:30 PM

In AE13N, the defense seeks relief from the case’s protective order regarding national security information—in particular, permission for defense counsel in this commission case to draw on classified evidence of Al-Nashiri’s treatment and condition, in an affidavit which they wish to file in Al-Nashiri’s pending habeas challenge in a D.C. federal court.  As written, the protective order prevents this from taking place.

Learned Counsel Rick Kammen explains the gist of the habeas suit: the main idea is to enjoin the military commission from proceeding, for jurisdictional reasons.  But there’s another argument in play, too, one arising as a consequence of Aamer. The D.C. Circuit’s ruling blesses conditions of confinement claims for Guantanamo detainees—and that’s precisely what Kammen and company wish to pursue, in the affidavit.  To put that together, the lawyer wishes to move classified material regarding Al-Nashiri’s treatment from GTMO to the D.C. court’s secure facility—but, of course, not to release it publicly.  When asked, Kammen explains that his conditions challenge, though not strictly related to the threshold claims regarding commission jurisdiction, nevertheless bear on the government’s argument that the habeas court should abstain from hearing Al-Nashiri’s habeas suit.  The military judge wonders: if the habeas court finds this material relevant, then why can’t it order discovery?  Kammen answers, in essence, by emphasizing some basics: all we seek is to move secret material from one secret facility to another, and the prosecution hasn’t really put forth a reason not to.

The prosecutor Maj. Christopher Ruge says this argument is really about process.  The defense wants to make and end-run around the ordinary procedure, by having this court rule on relevance and necessity of classified discovery—but in different court, in a parallel case. He adds that the “need to know” in a given case is driven by discovery’s bearing on a litigation.  And that’s for the D.C. court, not this military commission, to decide. Ruge continues for a few more minutes on this theme, and sits.

Kammen protests: we’re not seeking to displace the habeas court’s authority. The converse, after all, would have Kammen and company asking the D.C. judge to order discovery from the commission.  No, the process, as Kammen understands it, is the other way around; he is supposed to seek assistance from the commission first.  That’s part and parcel of counsel’s duty to keep secret information safe.  The lawyer also says that the habeas court can always reject any evidence as irrelevant or inadmissible, down the line—but that the underlying information has to get before that court, first, for that to happen.  He’s trying to do just that, by means of AE13N—which is submitted and now awaits decision.

We proceed to AE266.  In that motion, according to Al-Nashiri lawyer Rick Kammen, the defense seeks to uncover information about ex parte approaches to the court, by the CIA or like agencies.  The lawyer supplies context: the CIA did, after all, seek to influence the Senate’s RDI report; we know this from the many media accounts.  Kammen likewise notes some past government efforts to control secrecy in the military commissions: fake smoke detectors hiding listening devices in attorney meeting rooms; the hitting of “censor buttons” in the Guantanamo courtroom, and the like.  The lawyer is thus concerned that the CIA may have reached out to Judge Pohl, directly and quite improperly, in seeking to undermine the proceedings.

The government doesn’t really oppose the motion, having noted, in its pleadings, the impropriety of some kinds of ex parte contacts.  Parenthetically, prosecutor Lt. Bryan Davis stresses his belief that no such communications have taken place—with the court, or with any victim witnesses.  The lawyer here distinguishes between improper ex parte communications (which must be disclosed), and proper, legally authorized ones (which are not subject to discovery, for reasons of irrelevance).  An inquiry into the latter would show only that the commission staff obey statutes and rules; and the defense surely knows that, given its legitimate, and frequent, ex parte communications with the court on discovery requests.  Would those be discoverable by prosecutors?  No way.  Thus Davis sums up: the defense here wants the court to ignore the ordinary procedures for discovery, by mining for proper communications by the trial judiciary.

Kammen in reply: there isn’t great disagreement here, about the line dividing okay contacts from not okay ones.  But he’s still worried—justifiably on the evidence, in his opinion—about the chance of some not okay ones here.  If none of the intelligence agencies have contacted the court, then great, Kammen says.  But if they have, then Kammen wants to make his record, and will need to uncover more about what transpired between the court and intelligence officials.

It looks like nothing, in fact, transpired.  Judge Pohl says he will rule on AE266 later, in writing. In the meantime, he says from the bench, the court has not been party to any improper ex parte contacts with intelligence personnel, and he isn’t aware of any, so far as his staff is concerned.  As to victim witnesses, the military judge has never had a substantive conversation with any of them while in transit to and from GTMO, bar the rare and de minimis “hello” or “excuse me.”  We’ll expect this to be reflected in a forthcoming order.

Recess time.

 

5/28 Session #1: Getting the SSCI RDI Report—or Not

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Wednesday, May 28, 2014 at 12:18 PM

It’s on—the open part of our proceedings, anyway.  Recall that court and counsel began their day already, some time earlier this morning, in a Role 505(h) session that has concluded.  The parties there debated the need (if any) to use classified material during our session, along with possible workarounds.  That having ended, the day’s publicly viewable portion begins.  Al-Nashiri is present.  The court thus advises him of his continuing right to attend proceedings, along with the consequences that might attend even a knowing and voluntary waiver.  When asked, the accused says he gets this.

Learned Counsel Rick Kammen rises to make a record regarding the disparity in prosecution and defense resources.  Its illustrated by (among other things), the assignment of a new civilian prosecutor, Mikeal Clayton, to the government’s now twelve-strong complement of lawyers.  But Kammen and crew have only five attorneys—and wants the commission to be aware of the problem.  (Kammen adds that the commission’s inaction, on a defense bid to allow Al-Nashiri attorney Nancy Hollander to access classified material, compounds the problem.)

On the substance—and In AE206, the defense seeks to compel discovery of the Senate Intelligence Committee’s still-classified, 6,000 page report into the CIA’s rendition, detention and interrogation program.  Al-Nashiri was a “participant” in that program, to borrow the gnarly euphemism.  The questions thus arise: who owns the report? Who can release it?  Judge Pohl asks, and defense counsel, in the person of Army Major Tom Hurley, answers: the United States Senate.  But that’s of no moment, in the defense lawyer’s view.  The court can order the legislature to hand over discoverable material—which the report very much is, under commission rules.  (The idea is that the report contains statements made by Al-Nashiri, admissions by government officials, and evidence of outrageous government conduct.)

Hurley underscores that all defense counsel are cleared and entitled to receive the sought evidence.  He adds that the report is these days subject to a classification review by the executive branch; the latter has seen it, Hurley seems to argue, so why can’t Al-Nashiri’s lawyers?  Court and counsel discuss further, the former wondering why, exactly, Hurley seeks the report—rather than the underlying documents only.  Only the latter constitute evidence, in Judge Pohl’s opinion.  Hurley disagrees, among other things given the Senate Committee’s analysis of the source material.  And, he goes on, the report enables the defense to perform a full pre-trial investigation into events that, in Hurley’s words, “shock the conscience.”  The lawyer then pivots to the government’s response, which he characterizes as a “cruel joke”—the cruelty arising from the prosecution’s insistence on a fast trial schedule, on the one hand, but its suggestion, on the other, that Al-Nashiri’s attorneys can access RDI discovery in due course, once the long process of declassification has concluded.  “They know better,” Hurley argues; the SSCI stuff isn’t forthcoming, absent hurrying up from the military judge.  The lawyer says a few more words along these lines, and urges Judge Pohl to enter an order.

Over to trial counsel CDR Andrea Lockhart.  She derides the defense’s argument as short on facts and law: the motion isn’t ripe.  All parties, she says, know that the defense isn’t entitled to the Senate report in its entirety; that’s almost certainly so, given the legal standard in play.  There might well be some relevant, material stuff within the report, sure—but the whole shebang surely isn’t.  At any rate, the defense already has substantial classified discovery bearing on RDI, or will get its hands on it shortly (assuming, of course, that the court takes no action on the prosecution’s motion to reconsider the court’s order regarding RDI discovery).

In any case, we’re jumping the gun, Lockhart argues.  The prosecution itself has sought the Senate report, but has yet to review it.  If her side gets it, then her side will review it and turn over any discoverable portions. Lockhart lastly dismisses Hurley’s claims regarding the case’s timetable—and, when asked, tells the court that sbe has no authority to order the legislature to release the SSCI document.  The prosecutor also reaffirms that her side is “actively seeking” the report, and says she’ll have an update on the prosecution’s access to it in late June.  Around that time, Lockhart says, at least the report’s executive summary may be declassified.  This visibly confuses the court; why does declassification matter, for purposes of discovery?  We have rules for discovery of classified material.  The prosecutor dissembles a but, but seems to say only that declassification would make matters easier, by broadening access to the sought material.

Hurley rises in reply.  In a death penalty case, he argues, the views of government officials about government wrongdoing, regarding the treatment of the accused, are squarely relevant.  Ditto evidence of the treatment of other individuals.  A few words more and Hurley sits.  Lockart rises briefly, only to underscore the speculative character of Hurley’s whole presentation: nobody has read the Senate report yet.

 

Statement from the Chief Prosecutor on This Week’s Hearings in Al-Nashiri

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Tuesday, May 27, 2014 at 7:58 PM

The Chief Prosecutor at Guantanamo, Brig. Gen. Mark Martins, had this to say on the eve of a pre-trial motions hearing in United States v. Al-Nashiri–-which commences tomorrow, and which Lawfare will cover as per usual, in almost-live-blog format.

The Chief Prosecutor’s remarks begin:

Good afternoon. Yesterday was Memorial Day, and so I pause to honor the sacrifices of our all-volunteer armed forces and our fallen heroes, including those who died in the service of their country aboard the USS Cole (DDG 67). They—and the families and friends who keep their memories alive and patiently await a sustainable justice under law—inspire us all.

Abd Al Rahim Hussayn Muhammad Al Nashiri stands charged with serious violations of
the law of war for his alleged role in attacking USS Cole (DDG 67) and MV Limburg and in attempting to attack USS The Sullivans (DDG 68). I emphasize that the charges against Mr. Al Nashiri are only allegations. He is presumed innocent unless and until proven guilty beyond a reasonable doubt. I also emphasize that matters under consideration by a military commission in this or any other particular case are determined by the presiding judge.

This week, the Military Commission convened to try Mr. Al Nashiri will hold another
series of sessions without panel members present. In these sessions, the Commission and the parties will continue their work to resolve legal and evidentiary disputes in an orderly and methodical way as we proceed toward trial. Although a recent order by the Commission now has adjusted the commencement of trial on the merits from December of this year to February of next year (Appellate Exhibit 45FF), significant work remains underway. Here are just a few examples of that work: Read more »

4/27 Session #3: Dr. 97 and AE205

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Tuesday, April 29, 2014 at 10:19 PM

We’ll hear next from a much-anticipated witness called by the defense: an Army psychiatrist who—as Judge Pohl rules from the bench, overruling defense objections—will testify under a pseudonym after all.  The witness, who the parties now refer to as “Dr. 97,” is sworn in.  He testifies now via video link, in connection with AE205, a defense challenge to Al-Nashiri’s medical treatment at Guantanamo—which the defense has found woefully lacking, and which, in its view, warrants a pause in proceedings until the situation is improved.

Learned Counsel Rick Kammen quickly elicits some background facts about Dr. 97: he’s been a psychiatrist for seven years; he was assigned to Guantanamo from October 2013 until quite recently; he was during that time the lone psychiatrist assigned to Guantanamo’s secretive Camp 7, where Al-Nashiri and other “high value detainees” are held; he knows that the accused was held somewhere prior to Guantanamo, just not where exactly.  And the psychiatrist’s general impression was that, prior to being stashed at Camp 7, the detainee’s experience was “very stressful,” even hellish in some way.  The witness, when asked, tells Kammen that he didn’t speak to prior doctors who had treated Al-Nashiri, at the time the witness transitioned into his assignment at the detention facility—though in theory the witness could have made such inquiries.

It quickly appears that Dr. 97 has a “professional disagreement” regarding Al-Nashiri’s treatment with the diagnosis made by the defense’s expert, Dr. Sandra Crosby.  (The latter, recall, opined that the accused was a victim of torture, physical, emotional, and even sexual.)  But we don’t immediately learn the substance of that dispute, as Kammen instead delves into different details: among other things, that in speaking with his superiors, Dr. 97 had become familiar, if only glancingly, with the Istanbul Protocol regarding the documentation of torture—and become so in the context of this litigation; and that, in diagnosing and treating a PTSD sufferer, it would be helpful to know the nature and severity of any trauma to which that person was subjected.  Dr. 97 says nevertheless that such things can be assumed rather than uncovered, and treatment still be just as effective.

Kammen thus strongly suggests, here and throughout his questioning, that Dr. 97 never really figured out what happened to Al-Nashiri in CIA custody.  Such is the leitmotif woven throughout the afternoon’s questions and answers: Kammen asking why the psychiatrist wouldn’t need to know, definitively, what kind of trauma his patient was in fact subjected to, and the witness responding that such information can be helpful but isn’t always necessary.  In any event, diagnosis in each case is, Dr. 97 goes on, intensely fact-dependent. The two then trot through some basic signs of PTSD: avoidant behavior, nightmares, anger, flashbacks, and even somatic complaints like constipation and nausea.

Read more »

4/27 Session #2: Discrimination in Death

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Monday, April 28, 2014 at 9:10 PM

We shuffle things around a bit, first by putting off AE263 temporarily.  It appears that motion, along with related litigation concerning hearsay statements offered by the prosecution, will be postponed until a later time closer to trial. That takes us to AE264, a constitutional challenge brought on the basis of equal protection principles grounded in the Fifth Amendment’s due process clause. But the defense had advanced these arguments already, in a separate pleading invoking the Fourteenth Amendment’s due process clause; the defense accordingly forgoes argument and rests on its briefs, and the government offers only the briefest of comment afterwards.

All this serves as prelude to AE265, the next item for argument and a defense motion to strike the death penalty, given the Military Commissions Act’s deliberate, unlawful discrimination.  As Al-Nashiri’s defense team has explained in its filing, the statute confers jurisdiction over (and thus, allows for the capital punishment of) only certain aliens—in practice almost entirely Muslims.  For that reason, says CDR Brian Mizer the law is contrary to the Eight Amendment.  He has in mind certain aggravating factors in the MCA, which, as he puts it, “impose the death penalty in an arbitrary, or … wanton or freakish fashion.”  The lawyer finds historical support for his position, noting (among other things) that the Supreme Court has started to look askance at the discriminatory application of the sentencing rules for powder and crack cocaine—and that that discrimination has fallen hardest on minorities.  Mizer lastly nods towards Quirin, pointing out that, for all its many faults, the World War Two-era decision approved the execution of foreign enemies as well as citizen enemies after trial by military commission–and in that regard frowned on discrimination along alienage lines.

Over to prosecutor Maj. Evan Seamone, who begins by noting the deferential legal standard in play—he calls this “rational basis”—and the congressionally-crafted safeguards that ensure the fairness of commission trials.  The court interrupts, wondering what this stuff has to do with the anti-discrimination principles cited by Mizer; the lawyer parries a bit, but comes quickly to the point: international law always has permitted death as a punishment for serious violations of the laws of war.  That, in turn, makes any would-be Eighth Amendment go away.  After some further back-and-forth, Seamone also notes that—unlike other courts—a commission can find the accused guilty, but impose no punishment at all.  So far from discriminating against aliens, it appears the commissions afford them—from a punitive standpoint—more favorable outcomes, on paper at least.  When asked, Seamone also tells the military judge that U.S. citizens can indeed face death, upon conviction for war crimes in federal courts: no bad discrimination here, either.  Nor in courts martial, where big-ticket violations likewise can result in a death sentence under similar circumstances.

All this rings hollow to Mizer, who intones: this isn’t about whether citizens of the United States can be executed.  This, instead, is about a separate and less favorable trial system and sentencing scheme for a narrow class of aliens.  Consequently, he rejects Seamone’s suggestion of “rational basis” review; rather, he’s after a declaration that the statute does what it says it does, i.e. discriminate and arbitrarily impose the death penalty. Of course that conflicts with, among other things, the Supreme Court’s Gregg v. Georgia and other cases.  Mizer sums up with another reference, this one to a separate but better known line of high court decisions: separate but equal isn’t acceptable for our schools, he says; nor should it be for our justice system.

With that, AE265 is finished up and added to the military judge’s inbox.  There’s a quick pause, as court and counsel debate whether a witness to our next motion will be permitted to testify.  The defense says no, given that person’s departure from Guantanamo, and the fact that, to the extent threats have been made, they have been made by persons other than Al-Nashiri against persons other than the witness.  But he prosecution says otherwise, insisting that the name’s disclosure might expose the witness to risk wherever his duty station might be, that the danger for the witness is real, and that he (or she) might return to duty at the detention facility.  We await the issue’s resolution as the court calls a brief recess.

4/27 Motions Hearing #1: Military Jurors and Defense Investigators

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Monday, April 28, 2014 at 4:26 PM

Our special Sunday session convenes at 9:02, with all parties present—including Al-Nashiri.

The group commences with the briefest procedural discussion of AE120C, better known as the government’s request to reconsider Judge Pohl’s consequential order compelling discovery into the RDI program, and Al-Nashiri’s treatment abroad.  The prosecution doesn’t oppose a slightly longer time frame for the defense to submit its reply to the reconsideration motion; it thus appears the timetable will be enlarged somewhat.

A fulsome debate follows on AE261, the defense’s bid to compel discovery of additional information regarding the panel of military officers that, eventually, will comprise the commissions’ members at trial. Al-Nashiri’s Learned Counsel, Rick Kammen, says that the motion is grounded in several concepts, chiefly the manner by which the Convening Authority selected the 37 would-be panel members. He’s thus after what Kammen calls “demographic information”—for example, the total percentage of eligible personnel in a given group, miitary-wide (he mentions African Americans and Muslims), which Kammen and company might compare with that group’s representation in the pool selected by the Convening Authority.  Was the selection random?  (The military judge answers that there’s no “random selection” in play, in the commissions–and that the same is true of courts martial.) Or was there a more calculated method to the madness?  Who in the selected group has TS/SCI clearances?  Which statistical anomalies should Al-Nashiri’s defense team explore, and which ones should they tolerate?  The sought discovery would bear on all these questions.  Kammen lastly underscores his greatest fear: that, because the Convening Authority referred the case capital, he also would be inclined to pick panel members likely to vote for both guilt and a death sentence.

The baton passes to prosecutor Lt. Bryan Davis, who opens with this clarifying note: the government has complied with Judge Pohl’s past discovery orders, and in particular, handed over a memo from the Convening Authority, regarding panel nomination.  He adds that the “demographics” issue is no mystery: an easily-Googled report sets forth the demographic information on the various service branches, and this can be just as easily compared to selection information furnished to Al-Nashiri’s defense.  To be sure, Davis joins heartily in the court’s seeming doubt of Kammen’s “randomness” claim: no law requires a court martial panel, much less a Guantanamo military commission panel, to represent a cross-section of the military. Instead, the selection criteria have to do with (among other things) training, experience, temperament, and so forth.   When asked by the court, Davis says that any uncleared selectees likely will have to receive TS/SCI clearances, but that the interval from selection to trial should suffice to permit that.

A rebuttal follows, from Kammen—who can’t simply accept that the selection process isn’t random. Nevertheless, he explains, his side still needs to now how un-random the process might be. Kammen notes, for example, that the Convening Authority seemingly has excluded generals from the pool.  Why? Kammen also notes that the purposes of courts martial and commissions are different; the relationships between the convening officer and the would-be jurors should reflect that.  The military judge observes that the structure here was designed by Congress, and approved by the President.  Kammen acknowledges as much, but predicts that a civilian court might find the differences between this selection process, and that of a civilian court in a capital case, to be so great the commissions mechanism “cannot stand.”  A few words more, and Kammen brings our argument to a close.

The argument on another motion to compel, AE262, opens.  In this one, the defense asks the court to appoint an expert, Dr. Robert Lessemun, as a part time investigator.  As Maj. Alison Daniels explains, the appointment is appropriate, given the concern expressed by Congress previously, regarding the commission’s prior “systemic issues” in underfunding of commission cases—capital and non-capital alike.  And yet here, the Convening Authority had turned down the defense’s request for Lessemun, reasoning that Al-Nashiri’s side already had many experts and investigators.  But, as Daniels points out, that’s wrong: the other people are mitigation experts, victim liaisons, and similar personnel.  The defense lawyer then summarizes Lessemun’s credentials, including his significant experience in complex death cases, and his current clearance.  For purposes of context, Daniels observes that the prosecution certainly isn’t having trouble getting expert help in pursuing its case: its investigation, after all, is conducted jointly by personnel at the FBI, the NYPD, the NCIS, the Air Force, and other U.S. and Yemeni government agencies.  Having that in mind, Daniels urges Lessemun’s appointment—and suggests that Al-Nashiri’s trial might be fundamentally unfair without it.

Lt. Paul Davis, a prosecutor, thinks differently—beginning with the defense’s failure to establish (as it must) why Lessemun’s appointment is necessary to begin with.  It’s particularly unclear, Davis goes on, “what it is that [Lessemun is] going to do with that capital experience that’s specific to him,” and why other already-assigned folks can’t pick up the slack.  What’s more, the defense has two full-time investigators already—at least one of which speaks needed language, and is a Muslim.  The prosecutor lastly dismisses Daniels’ effort to compare the government’s resources and the defense’s resources, given the different objectives, functions, and legal burdens faced by the two sides.

Now here’s Daniels in reply, clarifying: yes, we have mitigation specialists (two) and investigators (two).  But the latter don’t have the four years of institutional knowledge that Lessemun gained, during his previous service on this very case; the currently assigned guys thus require lots of background briefing and getting-up-to-speed, an impossibility given the advancing trial date.  And neither current fact investigator has capital defense experience, which Lessumun has; instead, and quite unlike Lessemun, both cut their teeth as investigators for the government. Daniels adds that Al-Nashiri’s defense team can’t use other experts for additional investigative work, given limits imposed by the Convening Authority on the experts’ time allocation.  The lawyer lastly argues that, if appointed, Lessemun could do his job without a security clearance—though Daniels also once more stresses that, to the defense’s knowledge, Lessemun’s clearance is valid right now.

4/25 Motion Hearing #3: Charge Multiplication & Jury Consultants

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Sunday, April 27, 2014 at 8:33 AM

After CDR Lockhart lays out the parties’ agreed upon schedule for the rest of the afternoon session, the court begins with AE 244, a defense motion to dismiss numerous charges as multiplicitous of other charges.

Maj. Danels starts off for the defense, explaining that the U.S.S. Cole charges of murder by perfidy, attempted murder by perfidy, caused injury by perfidy, and conspiracy to commit murder by perfidy are “pile-on” charges to the charges of perfidy and terrorism. These “exaggerate criminality” and “add nothing to the allegations of perfidy or terrorism.” Because this is a capital case, Maj. Danels also notes that the multiplication of charges is “highly prejudicial . . . and skews things in favor of death.” In response, Brig. Gen. Martins lays out the prosecution’s position: The claim of unreasonable multiplication of charges is not meant to prevent the prosecutor from charging and proving the many ways that a single event may be a crime. In fact, given the number of victims in this case and the expansiveness of the plot, the government believes its list of nine charges is quite concise.

The court next hears brief arguments on AE 245, a substantially similar motion for multiplication of charges for the attack on the M/V Limburg, before turning to AE 260A, a defense motion to compel the production of witnesses to support the defense’s underlying motion—AE 260—that it be allowed to have a jury consultant. Learned Counsel Kammen explains that the defense would like to present multiple witnesses, or at least one Dr. Jeffrey Frederick, to explain to the court why jury consultants are so vital to the fairness of Al-Nashiri’s trial. After the defense explains the unique contribution that each of the witnesses would provide in support of a jury consultant for the defense team, Judge Pohl turns to Lt. Davis for the prosecution to articulate why the government opposes the underlying motion. Lt. Davis provides the test for provision of a jury consultant to the defense: The defense must explain why the expert is necessary, what his or her contribution to the defense will be, and why the defense cannot undertake the case without that expert. The defense team is “an experienced team, a savvy team, a team that has learned counsel,” says Lt. Davis, and so there is no need here for a jury consultant.

In a rare move for this court, Judge Pohl grants the underlying motion from the bench, compelling the production of a jury consultant for the defense. In turn, he denies AE 260A as moot. The court enters closed session for the remainder of the afternoon.

4/25 Motion Hearing #2: More Aggravators

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Sunday, April 27, 2014 at 8:32 AM

Picking up on the end of Thursday’s session, the court will consider multiple defense motions seeking to strike the first aggravator—that the life of one or more persons other than the victim was unlawfully and substantially endangered—from various charges against Al-Nashiri. These are AE247, AE248, AE249, and AE250.

Learned Counsel Kammen reminds the court that the defense’s objections, as with AE246, are two-fold: First, the aggravators are actually elements of the charges and so must be plead in the charges, and second, they are improperly vague. Mr. Sher rises for the prosecution to argue that the government has plead the aggravators as required by the court’s rules and the aggravators are not vague because it is clear who was endangered under each charge against Al-Nashiri. Judge Pohl wonders whether the endangerment could be extended beyond simply the people on the M/V Limburg and the U.S.S. Cole, to include boats in the area. Is there any requirement that the prosecution identify the universe of individuals included in the aggravator? Mr. Sher responds that the defense can reasonably infer the individuals alleged to be endangered from the charge sheets and documents provided in discovery, but the prosecution can supplement its notice with the list of individuals if the court so orders.

Next the defense raises AE251, a motion to dismiss the fourth aggravator—that the victim was a protected person or the offense endangered a protected person—as duplicitous of the first aggravator discussed above. Learned Counsel Kammen focuses on the stacking argument: These two aggravators count the exact same people and so are double-counting in a way that makes a jury more likely to hand out a death sentence. Maj. Seamone argues for the prosecution that aggravators are only duplicitous when they have identical factors, while endangerment of persons and protected persons are substantially different. Judge Pohl pushes on this, asking whether the second part of the fourth aggravator subsumes the first aggravator. Aggravating factors are meant to provide a perspective to the jury that they wouldn’t otherwise have, says Maj. Seamone, so “the more factors you have, the more individualized it is.” It is up to the court to provide jury instructions so that the jurors do not double-count.

The same arguments apply for AE252 and AE253, so the court moves on to motion AE254, a defense motion to strike the fourth aggravator for failure to allege it in the charge for hazarding a vessel. While the aggravator does not increase the maximum available sentence for this charge, case law requires aggravators be plead as an element of an offense, explains Maj. Danels. The prosecution disagrees and Mr. Sher simply says that the government pleaded the statutory aggravators—that Al-Nashiri is an alien unprivileged enemy combatant, that he killed in violation of the Military Commissions Act, and that killing occurred in the context of hostilities. The same arguments are adopted for AE 255.

The parties have a similar discussion for AE 256, 257, 258, and 259, all seeking to strike the fifth aggravator, for intent to intimidate or terrorize the civilian population, from various charges. The court then breaks before the afternoon session.

4/25 Motion Hearing #1: Dr. M’s Brief Appearance

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Sunday, April 27, 2014 at 8:31 AM

The morning session starts off with the calling of a pseudonymous witness, Dr. M, to testify on Al-Nashiri’s psychological diagnosis and current treatment at Guantanamo Bay. But there’s already a problem: Learned Counsel Rick Kammen, of the defense, informs Judge Pohl that the witness viewed Dr. Sondra Crosby’s testimony on Thursday. Although this witness is considered a defense witness, Learned Counsel Kammen notes that his team did not select this witness and so would like to conduct a voir dire to determine whether he will request a different witness.

After a brief dialogue between Brig. Gen. Mark Martins, the chief prosecutor, and Judge Pohl, Dr. M of the US Army takes the stand. Learned Counsel Kammen’s questioning reveals additional facts about the incident: The Staff Judge Advocate (“SJA”) informed Dr. M on Thursday morning that Dr. Crosby was testifying that morning. Dr. M watched the testimony at the SJA’s office in the morning. When Dr. Crosby was asked to return in the afternoon for additional testimony, the SJA again contacted Dr. M to watch the remainder of that testimony. After a few more questions about the incident and the extent of Dr. M’s communication with the prosecution prior to taking the stand, the court recesses to allow the defense team to caucus. Upon return, Learned Counsel Kammen questions Dr. M to ensure that no other medical personnel viewed Dr. Crosby’s testimony with him, nor did he discuss the anticipated content of today’s testimony with the other medical personnel at the detention facility. The only person with whom Dr. M discussed Al-Nashiri’s case is his psychiatrist.

Learned Counsel asks that the witness be excused and then requests that the court allow the defense to call Al-Nashiri’s psychiatrist during the afternoon session to avoid the many problems that the defense has with Dr. M—in particular, his refusal to meet with the defense prior to today’s testimony, his numerous meetings with prosecution lawyers to discuss his testimony, and the SJA’s invitation for Dr. M to watch Dr. Crosby’s testimony. Brig. Gen. Martins objects, pointing out that the defense requested someone who is knowledgable about Al-Nashiri’s entire treatment plan. The government believes that Dr. M has such knowledge, while the psychiatrist does not. However, because this witness was called by the defense, it is their decision whether or not to call Dr. M; if they choose not to do so and if the psychiatrist is available to testify, that is an option available to them.

Before excusing Dr. M for good, Judge Pohl asks him about the psychiatrist. It turns out that the psychiatrist is an active duty Army physician whose deployment to Guantanamo Bay ended last week. He is now back at the Army’s medical facility in El Paso, Texas. Dr. M is excused and Brig. Gen. Martin informs the court that the physician can be retrieved in short order for next week.

After discussing some scheduling issues, the court enters a brief recess.