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Event Coverage

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.

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.

8/11 Session #1: Severance, Reconsidered

Monday, August 11, 2014 at 10:25 AM

The military judge, Army Col. James Pohl, takes the bench.  Only one accused is present: Ramzi Binalshibh, whose case the court recently separated out from that against the other four accused in the 9/11 case.  His lawyers are there too, including Jim Harrington and LCDR Bogucki. The court opens by summarizing the state of play, including recent concerns raised by the prosecution about Binalshibh’s mental status; and the prospect of a conflict for Binalshibh’s lawyers, occasioned by the FBI’s questioning of Binalshibh’s defense team in connection with a security investigation.  Such things underlay the court’s recent severance order—which the prosecution has asked Judge Pohl to reconsider.  Only the latter concerns us today, says Judge Pohl. “We are not here to discuss the substance” of, say, Binalshibh’s competence.

To no one’s surprise, the government finds severance “drastic.”  Seeking reconsideration, the prosecutor Clayton Trivett insists that going forward on a severed basis will have an extraordinary impact upon the case—victim witnesses, prosecutors, everyone.  Trivett explains that the court’s concerns about Binalshibh–the potential for conflict, and the accused’s mental state–can be addressed without severance.  The joinder of the accused here was proper initially, something important under controlling law.  In this regard, Trivett says the prosecution deliberately opted not to pursue some charges, so as to preserve option the joint trial; he acknowledges that the military typically doesn’t see many joint trials, but that is only because—and unlike this case—long and complex conspiracies don’t usually happen within military jurisdiction.

Severance is appropriate, essentially, when a joint trial would compromise a trial right of the accused; or when it would prevent the jury from reaching a reliable verdict.  On the former, Trivett says that the speedy trial rights of the accused are not in play where–as here–the initial joinder was proper.  And a joined trial won’t get in the way of the jury making a reliable judgment about guilt or innocence.  He adds that the mere showing of prejudice to a defendant does not strictly require severance, either: a prejudice finding merely calls for the crafting of a remedy. There must be a showing of compelling prejduce, and severance is a last resort.  (Trivett importantly highlights that, right now, only one accused—Mustafa al-Hawsawi—actually seeks severance.)  At any rate, under federal law, in a joint case, when delays are caused by one defendant but felt by others, the question is whether the delay is reasonable. This informs, in Trivett’s view, the applicable military commission rule, and counsels against severance here. Read more »

8/6 Motions Hearing #2: MRIs and Skype

Thursday, August 7, 2014 at 10:19 AM

When the court returns from recess, the parties move into argument on AE277, the defense’s motion for a judicial order compelling an MRI of Al-Nashiri’s brain to determine if he has brain damage.

The defense presents two lines of argument. First, Rick Kammen, Al-Nashiri’s Learned Counsel, says his client needs the MRI for medical treatment, and points out the “grave defects in the medical care” at Guantanamo that have compromised the detainee’s health. Next, Kammen argues that the defense team needs the MRI to put on their mitigation case. Here, he notes it is his responsibility under ABA standards to pursue this information and that this issue regularly surfaces on appeal. Overall, the lawyer presents this as a “do it now or do it later” choice: Al-Nashiri needs the MRI, and Kammen will be taking the matter up at some stage with the Convening Authority.

Kammen anticipates and rejects the government’s argument that the defense team should start with an exam by a neuropsychologist, arguing that that route would present even more logistical challenges than getting an MRI machine to Guantanamo. When pressed by Judge Spath, Kammen acknowledges that the appointed psychiatrist is likely capable of performing the basic, threshold test, though he does not think such an approach would be adequate for “a litigation environment.”

Judge Spath is still thinking through the problem.  But he says he is likely to direct the defense to go through the Convening Authority before Judge Spath can or will issue any order.

On behalf of the prosecution, Colonel Robert Moscati stands to argue that the defense’s argument fails as a matter of law and fact. As a matter of law, he refers to the long line of precedent where judges have found these decisions outside their authority, arguing that this is an issue for the convening authority.

Judge Spath immediately begins asking questions relating to the defense’s mitigation case. He acknowledges that this is a fairly standard request for a procedure typically required by the appellate courts, though he repeats that he is likely to require the defense to go to the convening authority with the medical necessity arguments first. In response, Colonel Moscati addresses what he believes are the factual problems with the defense’s argument. For one, there is insufficient evidence to support Al-Nashiri’s claim of brain damage or his claim that the test is medically necessary. Moscati also emphasizes that neuropsychological testing is the appropriate first step before an MRI. And if the defense is claiming that Al-Nashiri cannot participate in his own defense, then they must go through the appropriate procedures and hearings for that determination—which, according to Moscati, already happened in March of 2013.

The baton passes to Kammen, who seems to ease back a bit. “Reading the tea leaves,” he acknowledges that he will route the medical request through the Convening Authority first. Judge Spath states that he is not making any decision as to the willful indifference to medical care claim. Kammen repeats that while the defense refuses to use any neuropsychologist associated with the Guantanamo Bay medical team, as they are “too much a part of this process,” he nevertheless will go ahead with securing an evaluation.

Judge Spath appears to be preserving his options on his ruling. He makes clear he is not issuing an order directing the defense to go first to the Convening Authority, and that if he ultimately decides there has been willful indifference in Al-Nashiri’s medical care, he may then issue an order allowing the defense to circumvent that usual process. When pressed by Moscati, Judge Spath says he is not going to rule on the mitigation piece because there is another process in place that has to happen first.  He does not have the authority to step in yet—unless he decides there has been willful indifference.

Judge Spath then turns to the unclassified portions of the AE284C motion to compel witness testimony. The defense is requesting the opportunity to cross-examine a doctor, who has opined that Al-Nashiri should not be allowed to speak with his parents via Skype because the mental pain and overwhelming sense of hopelessness the conversation would trigger would outweigh any benefit. Kammen points out that the situation “can’t really get a whole lot more hopeless” then it currently is.

Lt. Morris responds for the government. He points out that requiring the government to provide a Skype call would require a finding of deliberate indifference to a prisoner’s serious medical needs constituting unnecessary and wanton infliction of pain. Morris argues that because the defense does not claim there was a breach of this standard, there is no point in calling the witness, as nothing he could say could provide sufficient evidence to support a court order. Moreover, the prosecutor argues that the doctor’s testimony is not relevant because it’s not the basis for the government’s decision—common sense is. Regardless of the medical considerations, it is reasonable for the government to want to restrict the communications of a high-value detainee.

Judge Spath then concludes the unclassified discussion. The classified hearing, discussing the government’s non-medical reasons for denying Al-Nashiri the phone call, will continue after the lunch break. Tomorrow’s hearing will be a general discussion over future dates and will not be open to the public.

8/6 Motions Hearing #1: Tu Quoque

Thursday, August 7, 2014 at 9:44 AM

Judge Spath begins today’s hearings noting that Al-Nashiri is not present. The court first hears testimony from the Guantanamo Staff Judge Advocate who had received Al-Nashiri’s waiver, Captain G, who walks through the standard certifications that the waiver was voluntary.

The proceedings quickly turn contentious. Learned Defense Counsel Richard Kammen then stands and questions Captain G regarding their discussions the previous evening, about the chance that Al-Nashiri would not attend today’s proceedings. Chief Prosecutor Brig. Gen. Mark Martins quickly objects to the questions, stating that the point of this testimony is to prevent Judge Spath from having to take an in-court waiver, and that if the defense wants to have an extensive cross-examination, they can bring Al-Nashiri in. When Judge Spath questions the point of the testimony, Kammen states that he wants to establish that his earlier representations are true, since “this is a trust-free zone and a trust-free courtroom.” Kammen reiterates that the hearing is pointless because they have stipulated that the waiver was voluntary, but if the prosecution refuses to accept his representations, then he should have the opportunity to let the commission know his representations are true.

Judge Spath says he accepts Kammen’s representations and that he is willing to reconsider Judge Pohl’s order requiring testimony as to a voluntary waiver. Seeking to nip that possibility in the bud, BG Martins stands to argue for maintaining the procedure in order to avoid the chance that the presence or absence of the accused becomes an issue after trial. Judge Spath ultimately allows Kammen to proceed; the voluntariness discussion then wraps up quickly.

Judge Spath then moves on to some housekeeping matters. First, he grants AE279, the defense’s motion to compel funding for an additional 175 hours for a cultural consultant, Mr. Assed. He then finds that for AE284, some discovery information the defense had referenced in AE284D, is relevant and material. For AE284C, Judge Spath grants the motion to close the hearing in accordance with MCRE 505(h) and RMC 806. The parties accordingly will argue the unclassified portion of AE284— a bid to arrange a Skype call between Al-Nashiri and his parents—in open court, and then proceed to a closed hearing for the remainder.

Judge Spath then turns briefly to the motion to recuse, which he is still in the process of writing. He states that at this point, there have been no additional relevant filings in the Witt appeal—in which he served as prosecutor, and in which Al-Nashiri attorney CDR Brian Mizer now plays a role on appeal—and he then forbids the parties to submit any new filings from that case to him from here on out. This is to avoid him having to see, and form opinions on, any new developments in Witt. While he states there is no concern any filings could affect his impartiality in Al-Nashiri’s case, he’s keen to taken added measures in the abundance of caution.

Judge Spath then moves on to our big event for the morning: defense motions AE287 through AE292, to dismiss based on tu quoque—an estoppel-like doctrine.  In short, the idea is that war crimes prosecution is off the table, if the prosecuting power engages in precisely the conduct which it seeks to hold criminal.

Before arguments begin in earnest, prosecutor Justin Sher airs the government’s objections to the introduction of the defense’s video (showing the OSS depiction of a plan to disguise US Naval vessels as fishing boats) on two grounds. First Sher argues that the video is not relevant because it simply shows the government “testing and considering a plan,” without evidence that the plan in fact was ever implemented. The prosecutor then challenges the video’s authenticity, noting that it hails from a website with no association with the government, that it is not self-authenticating, and that there is no way to know if it has been modified or edited.  “Just because it is on the Internet doesn’t make it true,” he says.

Capt. Daphne Jackson rises for the defense, insisting that the United States is engaged in hypocrisy of the highest order. It now wants to criminalize conduct that is not a war crime under international or domestic law, a fact which the video establishes by showing the United States itself engaged in disguise operations akin to those in which Al-Nashiri allegedly engaged. The defense attorney casts her client in a better moral light to boot, observing that Al-Nashiri’s underlying conduct is not actually perfidious because any deceptions he engaged in were not unlawful, and moreover, that his conduct constituted “acceptable ruses.” According to Jackson, the acts of concealing hostile intent, failing to wear a uniform, or failing to carry a weapon openly do not constitute unlawful deception, and the government is conflating acts that cause a belligerent to lose his protected status with acts that are actually criminal. She does acknowledge that both sides agree that feigning civilian status falls into a different category, but limits that crime to wearing protected emblems, waving a white flag, or hiding in a crowd of civilians.

Jackson cites two historical examples of parties concealing hostile intent, thus demonstrating that it is not a crime, but accepted practice. The Chinese Navy made use of a concealed warship, retrofitted to look like a fishing vessel, during a skirmish with the Vietnamese Navy; then there’s our previously discussed video, depicting the US Navy’s plan to use concealed warships in naval operations. (It appears from the transcript that the court watches the video at this point.)

A little skepticism from the bench: without conceding that the doctrine applies, Judge Spath tries to determine how the US government could be considered to have acted in a “comparable capacity,” particularly if Al-Nashiri was an unprivileged belligerent. Though Jackson briefly argues that the USS Cole was a lawful war target, she quickly moves on and argues that tu quoque does not require a showing that the two sides engaged in identical conduct.  Instead the doctrine is raised here in order to demonstrate “what are war crimes that are firmly rooted in international law.” Jackson cites Kupreškić (ICTY) and Dönitz (Nuremberg) to support this interpretation and ultimately states that tu quoque must be an absolute bar to prosecution because the underlying conduct not only isn’t a war crime, but is the actual practice of the US.

Sher’s turn again. He focuses on the comparable capacity line of reasoning, arguing that Al-Nashiri is an unprivileged enemy belligerent and is thus not the same as a United States sailor. He states that other tribunals “have rejected the [tu quoque] theory outright because one’s moral culpability . . . is not contingent on the acts of another,” and dismisses the entire doctrine as inconsistent with the “obligation” of humanitarian law “to uphold the key tenets of the law regardless of the conduct of enemy combatants.”

After Jackson quickly reiterates her points, the court concludes arguments on this subject and takes a recess.

8/5 Motions Hearing #4: On the MCA’s Constitutionality and Statutes of Limitation

Wednesday, August 6, 2014 at 8:16 PM

Judge Spath then moves to AE 295, a defense filing and the penultimate item on the agenda.  It’s a constitutional broadside against the commissions’ authorizing legislation.
Major Hurley rises for the defense and asks that all charges be dismissed against al-Nashiri, “because the Military Commissions Act of 2009 is unconstitutional, specifically because it is designed to discriminate against a specific religion, that is the Muslim religion.” Judge Spath interrupts him: no prior Court has said the MCA is unconstitutional on free exercise grounds, so “how can I step in and say, as a process it’s completely unconstitutional at this point?”  Major Hurley replies that the link between the MCA and religious animus is inextricable: the legislation was passed in a background of anti-Muslim fervor, and consequently Guantanamo now exclusively holds Muslim prisoners.
Lt. Davis is back at the podium once more for the prosecution. “Your Honor, the Military Commissions Act does not criminalize religion. It criminalizes actions, it criminalizes violations of the law of war by unprivileged enemy belligerence.”  The MCA is facially neutral, and the basis of the law is not to punish believers of Islam but to punish violators of the laws of war.  But is the act being applied in such a way that targets Muslim men for selective prosecution?  The prosecution says no: the legislative history to that effect is “merely five statements” from the 535 Members of Congress, and the fact that we’re currently in hostilities with Al Qaeda and Al Qaeda members are Muslim doesn’t mitigate the basic neutrality of the statute.
Major Hurley replies that a judicial decision, Lakumi, is instructive: there, the Supreme Court found that animus need not be written into the law to exist, it just needs to exist in fact.  And though “we can imagine there may be some circumstances under which other members, adherents to other beliefs may ultimately be tried here in Guantanamo Bay, but the proof is in the pudding.”
Finally, the proceedings briefly touch on a battery of defense motions, AE296-301.  The series raises variations on a common legal argument. Thus, speaking through Major Daniels, the defense insists that charges should be dropped because “the statute of limitation in place at the time of the commission of the acts alleged in those charges and specifications was Article 43 of the Uniform Code of Military Justice, and that has a statute of limitation of five years. “
Not so, says prosecutor Mikeal Clayon in rebuttal.  He rises for the government and states that “[t]he central premise here is that the statute of limitations for one body of law does not, except for limited circumstances, dictate a statute of limitations of another body of law, and this is simply not one of those limited circumstances.” In any event, because violations of the laws of war tend to have enormous magnitude and far-reaching effect, the absence of a statute of limitations for violations of laws of war is a customary norm dating back to Nuremberg.
And that is that—for today.  Judge Spath says the parties will address motions AE287 to 292 during the next session, tomorrow.  He then recesses the proceedings.

8/5 Motions Hearing #3: Cole Photographs and the Yemen Friendship Agreement

Wednesday, August 6, 2014 at 6:12 PM

In the final session for the day, Judge Spath announces he has come to a ruling on AE277.  This is the defense’s bid for Al-Nashiri to have an MRI examination, presumably in order to unearth the damage wrought by his abuse at CIA hands. The item had been the subject of a secret Rule 505(h) session on Monday, wherein the parties discussed the handling of classified information and the need (if any) to close the courtroom.  But now the court explains that he does not “see a reason to close the hearing for the piece of information that we discussed during the classified portion yesterday.” Memorializing this, Judge Spath says he will submit a written ruling for the record—which is apparently forthcoming.
We then turn to AE283, in which the United States asks, in essence, to schedule a further preliminary session. Prosecutor Lt. Bryan Davis begins, describing his sought relief as modest: the United States “simply requests that the commission set a hearing to determine the admissibility of 93 photographs and three videos . . . that were taken around the site of the bombing of the USS Cole in Aden Harbor.”  M.C.R.E. Rule 104 empowers the Judge to make admissibility calls outside of the presence of commission members, and Rule for Military Commission 906(b)(11) likewise refers to pretrial motions as an appropriate vehicle through which to determine admissibility.
Despite the legal authority, Davis candidly acknowledges that it is in Al-Nashiri’s interest not to have evidence presented to the military judge that will not eventually be used as evidence in the case. But Davis nevertheless asks that Judge Spath consider the efficiency of deciding evidentiary matters ahead of time. He adds that any prejudice against the accused would be mitigated by the fact that the government still bears the normal burdens of demonstrating authenticity, relevance, and so forth—when at least the photographs are introduced as evidence at trial.
But is it really in the interest of judicial economy to go through admissibility determinations twice: once pre-trial, and then during trial?  Judge Spath asks; Lt. Davis responds that he doesn’t anticipate that the defense would challenge all pieces of evidence twice; the process thus would be streamlined, in that the commission could spend less time considering each piece of evidence seriatim and more time focusing on the substance of the matter. The prosecutor moves to the matter of timing: if Judge Spath were to grant such a hearing, the government requests that the parties be given 45 days of notice, as opposed to the defense’s request of 120 days.

Read more »

Al-Nashiri Motions Hearing: August 5 Session

Wednesday, August 6, 2014 at 4:36 PM

A reminder: Lawfare has digests of yesterday’s pre-trial proceedings in United States v. Al-Nashiri available in our “Events Coverage” section; you will find links to Lauren Bateman’s dispatches below, too.

8/5 Motions Hearing #1: Death Penalty Procedures and Mitigation Experts 

8/5 Motions Hearing #2: Things Classified

8/5 Motions Hearing #3: Cole Photographs and the Yemen Friendship Agreement

8/5 Motions Hearing #4: On the MCA’s Constitutionality, and Statutes of Limitation

8/5 Motions Hearing #2: Things Classified

Wednesday, August 6, 2014 at 9:15 AM

When the Court reconvenes, Major Tom Hurley begins argument on AE 280. In it, the defense requests that summaries of classified discovery be marked with more granular classification information.  Specifically, the defense objects to the government’s practice of marking whole documents as classified; instead, the defense wants the government to go through the process of reviewing the documents paragraph-by-paragraph to determine what must be withheld from the defense and from the public. In support of this motion, Major Hurley cites two documents: DoD Manual 5200.01 — the essence of which, he submits, is a requirement that the government be specific in indicating what is and is not classified material  – and Executive Order 13526.  Although the defense foremost wants Judge Spath to impose additional specificity requirements on the government, Major Hurley also suggests an alternative remedy: that the government share the classification guides with the security officer appointed to the defense.
Prosecutor Mikeal Clayton rejoins, first by asking that Judge Spath look to the plain language of 5200.01 Section 8(c)(1), which requires the government to mark whether materials are classified or not “in accordance with the underlying materials.”  To the extent that the defense’s suggested solutions would have the government “go back and remark these documents with additional markings . . . would be to ask the government to do something, frankly, inconsistent with the plain language of the statute, to mark the summary document in a way different from the underlying source material.”  Nor can the defense find a toehold in the Executive Order, Clayton argues: it specifically doesn’t create any new substantive rights for any party in suits against the United States.  He then turns to practical considerations. If the classification levels differed between the underlying information and the summary, “there would be a never-ending string of litigation over those facts, debating whether or how a particular classified fact impacts national security.”  Instead of considering those issues in a military tribunal, interested parties should challenge the propriety of classifying the underlying information in federal courts capable of hearing disputes under the Classified Information Procedures Act.
With the government’s challenge in mind, Judge Spath mulls aloud. “I am just trying to figure out where the authority comes from to have them to basically act — sort through a document that has been marked as top secret or secret, and sort through and find parts that are unclassified and mark it.”  In reply, Major Hurley notes that because the government is in the unique position of looking at the classification manual when putting together the summaries, they have a duty to ensure the classification authorities are accurate. Judge Spath agrees with that assessment: “I hope the government is making that effort. I assume they are.” But when it comes to the precise type of relief the defense requests, Judge Spath seems to balk: “[t]he trial counsel aren’t the classification authorities. They can’t do that assessment.”  The argument comes to an end.

Read more »

8/5 Motions Hearing #1: Death Penalty Procedures and Mitigation Experts

Tuesday, August 5, 2014 at 10:10 PM

The military judge, Air Force Col. Vance Spath, begins the morning’s hearing in United States v. Al-Nashiri—his second on the case—by ruling on two pending motions.
First, Judge Spath grants defense motion AE 305, in which the detainee’s lawyers had asked the new military judge to block his predecessor, Army Col. James L. Pohl from resolving certain outstanding motions after his replacement by Judge Spath. Here the court agreed with the defense that he should be the one to resolve legacy motions, with one caveat: Judge Spath plans to do so on the existing record, unless the record isn’t sufficient; in the latter case, more litigation might be necessary.  As far as yesterday’s discussion about resourcing, the Judge observes that there was no formal motion before him.  Thus the court simply reminds the defense that, if the Convening Authority denies any requests for assistance, the court will be amenable to hearing motions to compel.
Moving straight to AE278, Al-Nashiri’s Learned Counsel Richard Kammen stands and says that the commission should order the Secretary of Defense to make public the method through which Al-Nashiri will be executed, should he ultimately be convicted and sentenced to death.  His argument is two-fold.  First, the lawyer says it is important to give members the opportunity to decide whether they would be comfortable sentencing Al-Nashiri to death if the Department of Defense protocol was similar to that used in the botched executions in Arizona and Oklahoma.  Second, Congress actually passed a law instructing the Secretary of Defense to publish those regulations.  Anticipating a claim that the motion wasn’t yet ripe, Kammen notes that Congress had spoken definitively on the matter: “It didn’t say, you know, wait until the process is over. It said publish them.”  More broadly, Kammen claims that the intellectual construct of the sentencing question is different when the method of execution is an unknown variable. How can the defense argue that the method of execution is inhumane when the prosecution could simply assert otherwise?
The baton passes to prosecutor Justin Sher–who, as Kammen predicted, zooms in on the motion’s prematurity: “it’s not ripe until the point that the accused is unanimously convicted of a  capital offense, and only after the members make the requisite findings, and only after they unanimously sentence the accused.” And because the “mode or method is either lawful or not lawful,” the whole question is legal in nature and thus entirely inappropriate for commission members to consider during sentencing.  It might also not be fit solely for judicial consideration, either, suggests Sher. Unlike mitigation considerations, which must be unique to the accused and may be considered by the commission members, the manner and method of execution is a matter of clemency meant to be considered by the Convening Authority.  A little bit more follows from Sher—and even less than that from Kammen—and AE278 is quickly submitted.
That brings us swiftly to AE279, in which the defense requested 175 additional hours of funding for Mr. Ahmad Assed to continue his work as a cultural consultant focused on mitigation investigation in Saudi Arabia.  Maj. Alison Daniels takes up this item for the defense.  Mr. Assed is critical for a number of reasons, she says, not least of which is that he is the only one on the defense team capable of speaking with Al-Nashiri’s family, visiting his old neighborhood, and acquiring his school records, all located in Mecca.  (Nobody else involved in the mitigation effort is Muslim, a pre-requisite for travel to Mecca; such people also do not speak Arabic.)
Speaking through Lt. Paul Morris, the government responds that the defense needs to show more specificity before its request can be properly granted. For his part, Judge Spath seems to disagree: not only is the request clear, he said, but “if the convening authority believes the best approach is to try this as a capital case, that’s fine, but they should be prepared to spend the kind of money that a capital case requires, and when you have a capital case that involves somebody from an overseas country, it’s going to cost more.”  The evident skepticism does not bring a bench ruling, though; we’ll apparently await decision on the motion.

8/4 Session #5: Things 120, Part Two

Monday, August 4, 2014 at 4:03 PM

CIA discovery—the subject of Judge Pohl’s ruling in AE120C, and a subsequent order on reconsideration—is still before us. In motion AE120BB, the defense seeks a timeline for getting its hands on such discovery under Judge Pohl’s order.

Maybe AE120BB will be moot in time, forecasts Al-Nashiri’s Learned Counsel, Richard Kammen. In the event that it won’t be, though, perhaps some procedural history is in order. Kammen mentions the government’s intention to produce summaries of classified discovery to defense counsel—rather than the underlying discovery itself. This, in Kammen’s view, encompasses a subtle but important procedural difference between Rule 505, in the commissions, and the Classified Information Procedures Act, in federal court. Importantly, and unlike in federal settings, military judges cannot reconsider the adequacy of such a summary, even when more classified information comes to light and undercuts the summary. Judge Pohl had addressed this by permitting the defense to seek more discovery, and to make subsequent argument to the court, in order to demonstrate a summary’s inconsistency with newly produced discovery. That is the overarching problem, in Kammen’s view: the summaries so far have been virtually useless.

That’s where more discovery, and 120BB, both come in. Of course the defense understands the prosecution’s position, that it is dependent upon other agencies—which can greatly influence the speediness (or sluggishness) of a document request’s fulfillment. But here’s the thing: this capital military commission can’t really go forward until discovery into the CIA’s rendition, detention and interrogation (RDI) is complete. And right now, the prosecution has promised an iterative, back-and-forth discovery process—one which, in Kammen’s view, implies a slow trickle of discovery, right up to the eve of trial. That’s a nonstarter.  As a workaround, the defense proposes a timetable for prosecutors to use. “Dates tend to get decisions,” Kammen explains. So let’s get a compliance schedule for the government, so as to encourage those decisions in executive branch agencies, and to get more discovery turned over.   Read more »

8/4 Motions Hearing #4: Things 120, Part One

Monday, August 4, 2014 at 2:35 PM

And lo, defense motion AE120S is before us.

In it, the defense moves to compel production of an index of outstanding and denied discovery. But its not just any discovery we’re talking about, as Capt. Daphne Jackson explains: no, this index concerns the discovery, ordered by Judge Pohl in AE120C, into Al-Nashiri’s quite secret and unlawful mistreatment at various CIA black sites. At issue is the commission’s reminder to the prosecution, in a prior order, of the latter’s continuing obligation to hand over discoverable material, even where that material is classified—including material covered by AE120C. Well, says Jackson, prosecutors have provided some responsive discovery under AE120C—but not all discovery.  And we can’t tell what’s what, either; oddly, the prosecution appears to be saying that any CIA discovery it hasn’t turned over is: a) already in the defense’s hands, buried somewhere in stuff prosecutors gave to it before; or b) can’t be discovered anyway, notwithstanding Judge Pohl’s ruling. Thus AE120S: in Jackson’s view, prosecutors should be obligated to make a specific itemization of what discovery it has provided and where, and an explanation of what is and is not forthcoming. Without such a catalog, she and her colleagues are at a great disadvantage in preparing Al-Nashiri’s defense.

Prosecutor Mikeal Clayton speaks in rebuttal, beginning with the finer points of discovery under federal civilian and military commission rules. His gist: the defense here is seeking something much broader than discovery in any traditional criminal case.  Even Rule 16 of the Federal Rules of Criminal Procedure wouldn’t require the sort of road map Jackson describes.  The prosecution, insists the lawyer, has met and continues to meet its discovery obligations.  When asked, Clayton pledges to provide the defense with a list of likely witnesses and evidence—something that, he seems to suggest, would mitigate any risk of surprise for Al-Nashiri’s attorneys down the road. Seeking to bolster his points, Clayton adds a riff about the SSCI report: he says the prosecution has been actively working to get SSCI materials into the defense’s hands. Similarly, the government has identified in other pleadings materials it intends to use at trial—in motions to “pre-mit” evidence, for example. Such things offer useful guideposts for Jackson and company, in Clayton’s opinion. Lastly, Clayton scoffs at the defense’s repeated claims of resource disparity: in fact, he says, Al-Nashiri’s is a well-resourced defense team, almost as big as the mid-sized US attorney’s office from which Clayton hails. The prosecutor concludes by urging the court not to grant discovery in excess of that required by law.

Well does what does that require?  More than what the defense has seen, in Jackson’s view. We have an order from this court, stating that the defense is entitled to classified discovery into the CIA’s mistreatment of Al-Nashiri.  Yet despite that entitlement, the prosecution hasn’t fully handed over discovery under AE120C, and even gone on to suggest that some such material isn’t discoverable at all.  Meanwhile, argues Jackson, the government has suggested that several previously produced discovery items effectively capture discovery described by AE120C—that Al-Nashiri’s medical records, for example, amount to evidence of the “learned helplessness” instilled in him by CIA interrogators. Jackson adds that a list of anticipated trial materials isn’t sufficient: this is about defense discovery, not what the witnesses or documents the government ultimately will use in its case.  She wraps up.

To be clear, Clayton says the government will indeed comply with all orders in the AE120 series.  His clarification made, we pause for a recess.

8/4 Motions Hearing #3: Which Judges Get to Decide What

Monday, August 4, 2014 at 2:28 PM

Not too long after lunch’s conclusion, court and counsel confront the question: will Judge Spath recuse himself from service as presiding judge, having served on the case for only a few weeks?

Nope. Explaining his ruling from the bench, Judge Spath says that a disinterested person wouldn’t see a real or perceived problem with his continued participation here—notwithstanding his prior service as prosecutor in Witt, the ongoing appeal in that case, and CDR Mizer’s role in the appeal.

Recusals dealt with, we move to the substance, beginning with defense motion AE305. In it, the defense essentially asks to revisit the unique circumstances of Judge Pohl’s departure from the case. In doing so, Judge Pohl reserved to himself the power to resolve, after his departure, certain outstanding but ripe motions, while leaving other ones to Judge Vance. Al-Nashiri’s lawyers immediately cried foul, and asked to re-open ripe, undecided motions that Judge Pohl took with him, notwithstanding his replacement by Judge Vance.

Army Maj. Tom Hurley stands for Al-Nashiri and asks Judge Vance to wipe away any residual authority on Judge Pohl’s part. There’s one military judge in every proceeding, he argues, and one judge only—and that is you, Judge Vance. But we don’t do two judges in one case. As evidence, the defense lawyer observes that the Military Commissions Act and implementing rules uniformly speak of “the military judge,” who gets to rule on interlocutory questions, the admissibility of evidence, and the like. The use of the singular hints that only one judge gets assigned to a given case at a time.  Policy seemingly is on Hurley’s side, too: what wackadoodle system tolerates an unaccountable party (Judge Pohl) and an accountable party (Judge Vance) making decisions simultaneously?   Read more »

8/4 Session #2: A New Judge, Part Two

Monday, August 4, 2014 at 12:01 PM

We continue with Learned Counsel Richard Kammen’s questioning of Air Force Col. Vance Spath, the case’s new and recently detailed military judge.

The defense has asked Judge Spath to recuse himself, given the involvement of another of Al-Nashiri’s attorneys, CDR Brian Mizer, in the ongoing appeal of the high profile Witt court martial—in which Judge Spath served as prosecutor, and which involved allegations of plain error arising from prosecutorial misconduct. A Senior Airman, Witt was tried ten years ago, responds Judge Spath; the appeals have been going on for a while.  Since then, Judge Spath says he hasn’t paid much attention to Witt.  But he adds that he is used to and not offended by criticism of his past performance.  All this is, to the military judge, beside the point: “The Witt case outcome has no bearing for me,” he says. The prospect of real or perceived bias, either against Mizer or his client, arising from the Witt prosecution, likewise doesn’t worry Judge Spath “at all.”

A doubtful Kammen protests mildly: Really? What if Mizer ultimately prevails in his claim, that Judge Spath went way over the line in prosecuting Witt, and then gets Witt’s conviction overturned? The military judge rejoins that he’s been reversed many a time, and had dinner with the appeals judges who did the reversing–and without spiking the latter’s food to boot.  Same here, the court says. People second-guess Judge Spath’s rulings all the time, and it doesn’t bother him in the least—or skew his decisionmaking.  “That’s the price of doing business,” in the court’s view. Now Kammen queries Judge Spath about an article penned about Witt, under Spath’s name and those of two co-prosecutors; Judge Spath confesses that, as the senior trial counsel, he did only such work as appropriate to that role—thus suggesting that the article’s contents were prepared by his subordinates more so than by him.  Read more »

8/4 Session #1: A New Judge, Part One

Monday, August 4, 2014 at 10:40 AM

The scene on the grainy Fort Meade screen is different: there’s a new judge.

Consistent with a recent and abrupt change-up in the case, the judicial bench is filled today not by Army Col. James Pohl, but by his recently named successor, Air Force Col. Vance Spath. The latter is the Chief Judge of the Air Force, but now wears the hat of commissions military judge in this capital case—and calls our proceedings to order.  The accused is in the courtroom. (It’s a bit hard to keep track of the action: there’s some flckering in and out of the video, apparently occasioned by mechanical adjustments down at GTMO.)

First up are some procedural odds and ends–counsel identification, and noting, for the record, of legacy motions that Judge Spath rather than Judge Pohl will decide. The substitution of one judge for another does not alter the traditional voluntariness colloquy, though, in which the court and Al-Nashiri now engage.  After reading the advice of rights, Judge Spath asks whether Al-Nashiri understands his rights to attend, and the potential consequences of waiving such rights.  He says he does.

The rules allow for either side to challenge Judge Spath’s assignment to the case; the defense now raises one. Thus Learned Counsel Richard Kammen rises to question Judge Spath, beginning with his conversations, if any, with Judge Pohl regarding the case.  Judge Spath spoke to Judge Pohl at a march judges’ conference, Judge Spath recalls, at which time the latter mentioned both Al-Nashiri and Judge Pohl’s coming departure from the case.  Around then, Judge Spath had been working to name potential Air Force assignees to the commissions’ judiciary: he named two persons, and himself. There was a second discussion. After Judge Spath’s assignment, Judge Pohl later reiterated to Judge Spath his plan to exit the case, and mentioned that Judge Spath would be the lucky replacement. But, Judge Spath now emphasizes, the conversation here was minimal—approximately fifteen minutes, and touching on things like Guantanamo logistics.  (The Air Force judge had never been to GTMO prior to this.)  The two commissions jurists only discussed the plan to handle pending motions past a certain date—they didn’t discuss the case’s substance, however.   Read more »

The Loss of MH17 Over Ukraine

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

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

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.