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Event Coverage

4/22 Session #6: Reprisal

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Tuesday, April 22, 2014 at 4:05 PM

In AE222, the defense seeks to compel discovery into a possible reprisal defense to the terrorism charges against Al-Nashiri.

By reprisal, Maj. Tom Hurley has in mind, in essence, a legal doctrine that permits certain individuals to take otherwise illegal actions in the context of armed conflict, under narrow and extraordinary circumstances. Thus he seeks after-action reports regarding the killing of civilians and similar Defense Department materials—that might suggest unlawful actions by the United States, and that also might justify Al-Nashiri’s alleged terrorism.

The court quickly stops Hurley’s presentation, and flags the prosecution’s objection, that the reprisal defense apply only to state actors—which Al-Nashiri obviously is not.  Hurley dissembles a bit, but seems to say that he needs to get his hands on discovery first, in order to determine whether to pursue the reprisal doctrine’s application to his client in the first place. But, Hurley further argues, Al-Nashiri might still be considered a state actor at some stage during the events described on the charge sheet.  The lawyer adds that the discovery sought is undoubtedly relevant and material—to Al-Nashiri’s mindstate.  That sounds like a mitigation claim; and it also confuses the court a bit, given that some of the discovery apparently concerns events of which Al-Nashiri was concededly not aware.  How could such things go to the severity of punishment?  Hurley responds that the accused quite possibly was aware of some of the events in question—-ones Hurley would need to verify through discovery.

Maj. Evan Seamone stands to discuss the international law of reprisal.  That law calls for much more than state action, he says, before reprisal can be made out as a defense: an accused must also serve at the highest levels of a state government, for example; and the targeted state (here, the United States) must also have committed a serious offense against the laws of war, before an accused may raise a reprisal claim with respect to conduct later assailed as a war crime.  Yet nobody’s saying Al-Nashiri was ever the Yemeni Defense Minister, and his pleadings don’t specify any predicate law of war breaches by the United States, either.  Seamone also agrees with the military judge that so-called “mindstate” discovery can’t possibly have any connection to events that, in fact, Al-Nashiri didn’t know about.  The gist: this stuff is way wide of the mark, Seamone seems to say, and the request should be rejected.  A few words more—the lawyer doubts the relevance of any after-action materials even to mitigation—and Seamone sits.

Hurley replies, first by noting that a defense bid to depose Yemen’s president—and to explore any state actor role for Al-Nashiri—was rejected already.  Then there’s the “mindstate” theory: here Hurley affirms that the discovery bears directly on his side’s mitigation case, and that any discovery granted will eventually have to clear different hurdles for admissibility.  (The implication is that the lower discovery standards favor Al-Nashiri’s motion.)  When asked, the defense attorney confirms that he’s looking into civilian casualties, though without any inquiry into whether the casualties were lawful.  Hurley thinks his side is entitled to such information, with or without investigation into lawfulness.

And that’s a wrap.  The commission stands in recess until tomorrow.

4/22 Session #5: Lots of Reasons Not to Impose the Death Penalty

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Tuesday, April 22, 2014 at 4:02 PM

The afternoon pushes on, to AE209—the first in a series of motions seeking to take death off the table as a punishment option.

In AE209, the Defense seeks to have the death penalty tossed out, because the Convening Authority, in referring the case, did not refer to aggravating factors set forth at RMC 1004. Under law, a defendant cannot be punished with death simply by virtue of a murder conviction, argues Maj. Alison Daniels; but the Military Commissions Act doesn’t call for such distinction, other than to require that death result from a capital-referred offense.  To be sure, aggravating factors are set forth in regulations and the military commissions manual; but even assuming that the executive branch can promulgate these, the Convening Authority must refer to them in making a capital referral—or else the death punishment has to go.  Yet here, there’s no indication that the Convening Authority took aggravation into account at all.  (The court squints at the defense’s suggestion that aggravators must be set by statute; Daniels clarifies that the needed aggravators can be established by the Defense Department unilaterally, provided the authority is properly delegated from Congress.)

The government, in the person of Lt. Bryan Davis, insists that the rules for capital referral were followed—by trial counsel and by the Convening Authority. The latter’s legal advisor examined the relevant factors under the Military Commissions Act, put aggravating information before the Convening Authority, and the Convening Authority made a lawful determination based on the totality of evidence.  The defense’s attack on this process makes a great deal out of very little: what matters under Supreme Court precedent (cited by the defense) is that the jury ultimately decides on any aggravating factors, before imposing the ultimate penalty.  And that’s precisely what will happen here.  He adds that the Fifth Amendment grand jury right does not attach in military commissions; but that the accused here has benefited from a grand jury-like process, as set forth under the MCA.  When asked, Davis says that he thinks the Convening Authority took the legal advisor’s own aggravation analysis into account.  Davis winds up.

Now returns Daniels: every federal court has held that a capital indictment must charge statutory aggravators, and be approved by a grand jury, she says.  Here, by not citing any aggravators, the Convening Authority failed in his duty to refer the case on the basis of probable cause.  We wouldn’t have that problem in a civilian grand jury.  The law is clear: you gotta have the aggravators in there, given that the jury will have to find each beyond a reasonable doubt.  So strike out the death penalty, Daniels asks.   Thus AE209 is submitted.

On to AE210, where the defense challenges the MCA as overbroad: in particular, Daniels and company say it unlawfully fails to narrow the class of people who can be killed by the state, after lawful trial and conviction. In short, the MCA permits anyone to be executed, provided that he or she commits a crime that results in death. Again the court takes Daniels here to be saying that statutory aggravators must be included in the statute; the defense attorney doesn’t go quite that far, but says that the law nevertheless is infirm, given Congress’s failure to prescribe “constraints” on the death penalty’s imposition.  (She also refers to the delegation issue, which court and counsel batted around during argument on the prior motion: the Secretary of Defense’s power to promulgate a capital sentencing regime is doubtful.)

Return serve to the prosecution, and in particular, to civilian prosecutor Justin Sher.  He says Congress did include statutory aggravating factors, in a scheme previously approved by the Supreme Court.  He reads the key ruling aloud, afterwards noting that here, Congress built narrowing attributes into the commissions crimes themselves.  For the homicides here all involve particular conduct by an alien unprivileged belligerent, committed in and associated with hostilities.  Thus Congress made clear that, no, not just anybody can be put to death for committing murder in this forum; instead it made clear that only a fraction of commission accused can be executed after trial.  The Secretary of Defense, he adds when asked, has further limited the class of death-eligible persons, by promulgating an aggravation regime.  (As for the latter, Sher says Congress properly delegated promulgation authority to the Secretary.)  Which is to say: narrowing, check; aggravation, check.  And there’s nothing to suggest, as the defense has claimed, that delegations can’t be made to the Secretary of Defense by Congress, so far as aggravation goes.

Sher has that last part entirely wrong, argues Daniels in reply.  In particular, the Supreme Court cases here have blessed delegation authority—to the president only, not to any cabinet officials. And Sher’s also wrong about as to narrowing, too: only people hypothetically within the MCA’s jurisdictional language can be brought to Guantanamo in the first place.  So the potentially triable class is as broad as the detainee population—no narrowing there, in other words.  That’s another good reason to find an Eighth Amendment problem, and to knock out the capital referral.  AE210 thus winds up; and likewise, after exceedingly brief argument, AE211—an overlapping motion which largely repeats the defense’s delegation arguments from AE210.  (In short, Daniels contends that the Secretary’s authority to promulgate regulations is unbounded, and contravenes the separation of powers.)

4/22 Session #4: Chain of Custody Now, Chain of Custody Later

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Tuesday, April 22, 2014 at 2:41 PM

In AE207, the government has asked for a pre-trial hearing regarding on various evidence. CDR Andrea Lockhart has in mind 167 pieces of physical evidence seized from or near the U.S.S. Cole, immediately after the attack on the boat.  It seems defense attorneys plan to object to the chain of custody for all 167; accordingly, the prosecution has come to the commission for relief.  The military judge determines admissibility, argues Lockhart; there’s no need for the members to hear the chain of custody litigation, and its earlier resolution would benefit prosecution and defense alike.  When asked, the prosecutor notes that the prosecution is interested not merely in chain of custody; it also has asked the commission to determine relevance regarding certain of the 167 pieces, in advance.  That second part troubles Judge Pohl a bit, from a redundancy standpoint; he notes that the witnesses in question will have to testify before the members, at trial, no matter what they might or might not say at a pre-trial hearing.  Lockhart answers that the government could live with a pre-trial hearing on chain of custody only, thus preserving relevance issues for trial.  Her aim is to give all parties notice, ahead of time, of evidence that will go before the members.

CDR Brian Mizer speaks on Al-Nashiri’s behalf, and asks the court not to streamline an already truncated process.  The time and place for chain of custody determinations, and for relevance determinations, is before the members, he says.  Sure, some pre-trial litigation takes place ordinarily, in federal courts—but this case is anything but ordinary.  Instead it is a capital case concerning events that took place ages ago, in Yemen.  The court wants to know: why drag the chain of custody and relevance issues out, before the members?  Because the issues will be significant for the case, answers Mizer.  Wait: wouldn’t a parade of inadmissible evidence potentially harm Mizer’s team?  The prosecution’s approach would keep such a display away from the members’ eyes entirely.  The defense lawyer once more expresses a preference for litigation at trial, subject to any needed limiting instructions.  He’s keen to put the case’s extraordinary nature on display for the military jurors.  Mizer explains: one chain of custody witness, FBI Agent Donald Sachtlaben, has since been quite publicly convicted of a felony, for example; another witness is the President of Yemen himself.   Highlighting such stuff can only help us, he seems to say.  He winds up.

There’s no reason not to do this pre-trial, says Lockhart in reply.  And there’s no “President of Yemen” issue here, either; all the evidence at issue concerns U.S. personnel only here, she argues—mostly FBI agents.  Some such folks have spoken to the defense, says Lockhart, but not Sachtlaben–who isn’t on the prosecution’s witness list.  She returns to counsel table.

Miser leaves counsel table and returns to the podium, and reports that only once in his career has he convinced an FBI agent to speak to him.  That was at Hamdan’s trial—and the agent in question explained that he would be shunned, as a consequence of conferring with Mizer.  So it’s not quite right for Lockhart to suggest that Mizer and company have a free ability to speak to the FBI, at will. The lawyer also takes issue with Lockhart’s insistence that only U.S. personnel are in play here; the Yemeni government, after all, helped to dredge the waters surrounding the Cole. The members could determine that the Yemenis had a motivation different than the FBI, Mizer says.

He winds up; we take a brief recess.

4/22 Session #3: Confrontation

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Tuesday, April 22, 2014 at 2:33 PM

The Guantanamo lunch hour closes; the military commission resumes, court and counsel first turning their collective attention to some procedural odds and ends.  One item raised by Al-Nashiri’s Learned Counsel, Rick Kammen: Nancy Hollander’s status on the defense team, and the need for an evidentiary hearing (and thus, resolution of her position vis a vis Al-Nashiri).  Kammen wants to get to that pronto, hopefully this week.

The other item: the FBI’s investigation into defense counsel in the 9/11 case.  The latter is an eyebrow raiser, given that, contrary to earlier suspicions, it appears that the FBI’s inquiry is not focused solely on Khalid Shiekh Mohammed’s communications with third parties.  No, apparently, the investigation sweeps more broadly—and thus might well touch on this case. To be sure, Kammen’s crew hasn’t been contacted, he says; but on the other hand, the FBI hasn’t said that Al-Nashiri’s defense team won’t be, either.  Kammen thus plans to file an emergency motion to look into the matter, much as defense counsel in the 9/11 case have done.  Be on the lookout.

On to the substance, and, in particular, to AE109D.  In brief, the defense therein once more asks the court to take judicial notice that the Sixth Amendment right of confrontation applies to military commissions.  The motion derives from the government’s own assertion, Kammen claims, that trial rights must be litigated one at a time, as they arise, with reference to particular constitutional language. (The commission had rejected a broader defense motion in this regard earlier.)  Kammen is vexed: he still doesn’t have a good sense of what confrontation rights come into play, despite the case’s nominal advance towards trial in (perhaps) December of this year.  Until he gets a better sense, he can’t allocate resources effectively.  That problem is especially profound, given the role that hearsay witnesses from Yemen are quite likely to play, come trial time. Reportedly, some 66 hearsay witnesses may testify.  Well, then, how is the defense to proceed if, say, FBI Agent Smith simply shows up and reads aloud from a report, about what a Yemeni did or did not say?

The confrontation right makes American trials reliable, Kammen intones.  But the prosecution doesn’t want to apply that right here—despite its evident embarrassment about saying so openly.  A mega-hearsay case, suffice it to say, won’t be reliable.  And, Kammen insists, the defense’s challenge is ripe, the prosecution’s objections notwithstanding.  Resource allocation decisions have to be made now, not down the road, when witnesses are called to testify to hearsay.  Kammen’s proposed approach would make for easier sledding, by insisting upon earlier identification of what witnesses’ testimony would fall under a traditional exception to the hearsay rule; and of any “testimonial” hearsay in that testimony, for purposes of Crawford v. Washington.  The lawyer urges the court to resolve the issue now, and not to delay any further.    Read more »

4/22 Motions Session #2: More on Hollander

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Tuesday, April 22, 2014 at 12:15 PM

When recess ends, Kammen says he spoke with Al-Nashiri during the break.  For some reason—apparently there’s an unwritten rule about where the accused may stand—guards had then became agitated, because Al-Nashiri had moved around a bit.  The problem was quickly resolved, the lawyer says; but Kammen merely speaks now to flag the issue.

We thus march on to AE92.  It’s an ex parte secret motion, Kammen acknowledges, and also insists that he now will address nothing classified.  Instead he simply asks for an unclassified version of the pleading to be released to his client. That request implicates values similar to AE181, in which prosecutors have argued that some portion of the case evidence cannot be shared with Al-Nashiri.  It’s an evergreen problem for Kammen, one that stands to render his assistance ineffective. We’ve litigated this already, Lockhart rejoins; your honor has so ruled.  And she adds that this particular pleading cannot be reduced to unclassified form in any case.  For his part, Kammen denies that the court has in fact ruled on AE181—and lo, it turns out that Lockhart misspoke, as she concedes.  But the prosecutor emphasizes that the court in fact has rejected the accused’s effort to review classified materials, AE181’s pendency notwithstanding.

Now its time for AE178 and a related motion to compel, two supplemental filings which Al-Nashir attorney CDR Brian Mizer will address. The main pleading concerns defense attorney and consultant Nancy Hollander, and her on-again, off-again access to classified discovery and to her client, Al-Nashiri. In particular, Mizer speaks of Hollander’s program read-on, or “PAR.”  The latter, he says, governs access to discovery, and to Al-Nashiri himself—and has been improperly held up.  This, despite an uninterrupted attorney client relationship between Hollander and Al-Nashiri from 2008 to 2013.  And yet in 2014—as Mizer has argued earlier, in litigation on the same issue—Hollander’s access was denied, because Hollander was a pro bono lawyer, and because she was engaged a dual representation of Al-Nashiri in the European Court of Human Rights.  Mizer and company had raised the issue earlier; Judge Pohl, in turn, had demurreed, while allowing Hollander to once more seek the needed read-on.  But that too was recently denied—and the denial prompted Al-Nashiri’s lawyers to renew their challenge to what (to them) looks like an arbitrary denial of counsel to a capital accused.   Read more »

4/22 Motions Session #1: In Which Recusal is Revisited

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Tuesday, April 22, 2014 at 10:37 AM

It’s Al-Nashiri time, y’all.  The military judge, Army Col. James L. Pohl, calls the hearing to order.  The accused is here, along with his lawyers, save two: Capt. Daphne Jackson and Nancy Hollander (whose own role in the case is itself the subject of litigation).  Judge Pohl advises Al-Nashiri of his right to be present, and the consequences that might flow from a waiver of that right.  The accused says he understands this.

And then the fun commences with AE84E—a renewed defense bid to disqualify Judge Pohl.  (The first recuse-yourself-judge motion was rejected by the court, but now Al-Nashiri’s lawyers have re-filed it, claiming that new motion-supporting facts have come to light.)  The court has a conflict, according to the defense, stemming from his joint detailing to both “high value” commission cases at Guantanamo; from his denial of defense requests, in the Abu Ghraib cases, to substantiate their claim that, in allegedly abusing Iraqi prisoners, the accused in those cases acted on orders from higher-ranking officials in the Department of Defense; and from the fact that Judge Pohl was assigned to this case by the very entity prosecuting Al-Nashiri.

Two additional filings bear on the request’s renewal, which Al-Nashiri Learned Counsel Rick Kammen overviews: one is a motion (AE84H) to compel witness production, and another (AE266) regards other governmental agencies’ contact with the commission.  And those, along with AE84 itself, ought to be resolved not by Judge Pohl, but by another military judge detailed specially for that purpose.  At any rate, argues Kammen, under federal and military law, when there’s a demonstrated conflict, the presumption is that recusal is appropriate.  All the more so where, as here, the military judge also has an actual conflict. The lawyer then highlights a number of important unknowns, which will be the subject, presumably, of his discovery requests: the dates of Judge Pohl’s fitness evaluations, the circumstances of his appointment, people Judge Pohl conferred with at the time, his interactions with defense officials before each re-appointment (including the Convening Authority) and so on. Read more »

4/17 Session #1: A Special Trial Counsel, and a Pause

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Thursday, April 17, 2014 at 10:14 AM

We’re back in session.  The military judge, Army Col. James L. Pohl, calls proceedings to order.  Of the five 9/11 accused, there are two absentees: Walid Bin Attash and Mustafa Al-Hawsawi.  That prompts a voluntariness discussion, which proceeds according to the expected script.

First on our substantive agenda, and all of that agenda, really: the FBI’s recent interview of a defense security officer (“DSO”) assigned to Binalshibh’s team—and the alleged intrusion into defense functions arising from that interview.  Recall that the FBI had been looking into the publication of “An Invitation to Happiness,” KSM’s goofball treatise on morality, culture, and religion.  And, importantly, upon speaking with FBI personnel, the Binalshibh team’s DSO seemingly executed a non-disclosure form presented to him by FBI agents.  This document apparently purports to create a relationship of trust between the counterparty and the FBI—or something similarly in tension with the DSO’s allegiance to Binalshibh and company.

Upon learning of this, defense counsel immediately asked for a pause in proceedings and an inquiry by the court, given the compromise of a staffer ostensibly aligned with the defense; the possibility of a conflict; and the chance that other defense staffers might have been similarly questioned.  After litigation on Monday, the military commission orally ordered any defense team members to disclose any FBI contacts to defense lawyers—notwithstanding any suggestion to the contrary by FBI non-disclosure materials.

That brings us to today, and to AE292F—a motion filed late last night, and not yet appearing on the docket. The prosecution on Monday proclaimed its natural exclusion from any inquiry regarding the FBI security investigation; for that purpose, the government yesterday appointed a special trial lawyer, Fernando Campoamor-Sanchez, to represent the United States’ interests in court. Sanchez, in turn and through the vehicle of AE292F, has asked for a delay until April 21, when he’ll file a written response.  Having that in mind, prosecutor Edward Ryan says he can’t really speak about any judicially supervised investigation into the FBI’s own investigation. Accordingly, his crew has taken as many steps as they can, he says, in order to remain insulated.  He sits.  And when KSM attorney David Nevin rises, Ryan immediately objects, given the functional absence of the United States’ representative from any litigation today. Ryan is overruled though, and Nevin begins, the court having inquired only about the best procedural way forward—and not about any substantive legal matters warranting response from the prosecution.   Read more »

4/15 Motions Session #3: What Sorts of Evidence, Part Two (And a Recess)

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Tuesday, April 15, 2014 at 11:26 AM

Break being over, Cheryl Bormann picks up her thread: the conflict between absurdly strict secrecy controls and her own obligations to her client. Bin Attash is angry these days, she says, because he must (among other things) needlessly wait for counsel to return pieces that Bin Attash himself has written to him, pending security scrubs.  She asks Judge Pohl to get to the bottom of this.

Harrington emphasizes his outrage.  This isn’t hypothetical for him; and there is a conflict in play, no matter what Ryan might say. A visit by the FBI to the DSO is functionally equivalent of a visit by the FBI to defense counsel—and that’s serious, and poses a real conflict, one extremely difficult to discuss with the defense’s already quite suspicious clients.  Given all of that, Harrington is surprised that the prosecution isn’t outraged, too, under the circumstances.  When asked, Harrington agrees to identify his DSO by name, for purposes of an order compelling testimony.

Judge Pohl asks one last thing, of prosecutor Edward Ryan: if the court orders the FBI agent who questioned Harrington’s DSO to be produced, does Ryan think the FBI will resist?  Ryan alludes to government privileges, internal procedures, and so on—but in any case, he says can’t really speculate about processes from which he’s naturally excluded.  Nevertheless, he editorializes that it would be a mistake for the court to inquire into an ongoing FBI matter.

The windup, now the pitch: Judge Pohl will this afternoon order *any* member of the defense team who has been contacted by the FBI to disclosed the fact of that contact to defense counsel.  If there’s an issue that requires commission attention thereafter, defense counsel can seek relief as needed. Judge Pohl adds that he wants the defense to submit, by 1700 tomorrow, any proposed orders for production regarding witnesses. Such proposals will be copied to the government, unless there’s a compelling reason to submit them ex parte.  (The court adds that there probably won’t be any such reason, given the likely submission to third party witnesses.)

The court will not meet tomorrow, but might meet Thursday.  In the meantime, we stand in recess.

4/15 Motions Session #2: What Sorts of Evidence, Part One

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Tuesday, April 15, 2014 at 11:18 AM

Our recess concludes; the action resumes. KSM lawyer David Nevin begins the defense’s remarks on possible evidence it might offer to support of AE292—a motion alleging inappropriate FBI contacts with a defense security officer (“DSO”) assigned to Ramzi Binalshibh’s team, and seeking an abatement of procedings.  (By way of reminder, the FBI inquiry apparently arose in connection with the media’s publication of “Invitation to Happiness”—better known as KSM’s nutty manifesto on religion, culture and various and sundry other topics—some time back.)   For Nevin, the point of the AE292 is to ask the commission to make an inquiry into the whole affair.

That task ties in with a related, and even more recently arising issue: secrecy procedures mandated by the case’s protective order, so far as they pertain to (among other things) the leak of KSM’s wacky diary.  Nevin says he had respected the protective order’s rules, in handling the leak matter and filing court documents related to it; but now, he says, the government has suggested that somehow, by affirming such compliance in his written pleadings, Nevin himself committed a secrecy infraction.  How can such stuff possibly be “classified?”  The government’s claim puts him at a great disadvantage, the visibly irritated lawyer says: the point of these rules is to protect national security information, not to shield the government from embarrassment or to overburden defense counsel.

His complaint lodged, the attorney overviews some possible documents the defense would put on, in litigating AE292: among other things, an agreement that the FBI agents asked the Binalshibh team’s DSO to sign, which barred the DSO from disclosing information; a declaration from Binalshibh lawyer James Harrington, regarding his conversations with the DSO; a live witness, the DSO’s supervisor, who is present on GTMO; and ex parte evidence.  Nevin pairs this catalog wiht a recitation of applicable law: when there’s a possibility of a conflict, there’s an obligation imposed on the tribunal to inquire; and an obligation on counsel, to avoid conflicts of interest.  Finally, when asked, Nevin tell shte judge that some key testimony would come, on an ex parte basis, from FBI agents who interviewed the DSO; the DSO himself; and (interestingly) prosecutor Johanna Baltes, who serves as the Chief of Staff to the Deputy Director of the FBI, when she’s not prosecuting cases.  (he ex parte inquiry is needed, in Nevin’s view, given that the FBI investigation directly implicates defense strategy and work product. Read more »

4/15 Motions Session #1: Housekeeping, and FBI Things

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Tuesday, April 15, 2014 at 9:24 AM

It’s Tuesday, 9:12 a.m., when our Fort Meade screen comes to life: down at Guantanamo, the military judge, Army Col. James L. Pohl, calls proceedings to order.

Who’s here? Khalid Sheikh Mohammed and Ramzi Binalshibh only, of the five accused.  This means a voluntariness colloquy. As per usual, the government calls a pseudonymous witness, a GTMO JAG liaison, who tells prosecutor Robert Swann that the absentees—Walid Bin Attash, Mustafa Al-Hawsawi, and Ammar Al-Baluchi—-knowingly and voluntarily waived their rights to attend today.  James Connell III, Al-Baluchi’s civilian attorney, protests: the government hasn’t sought to put on a witness, per military commission rules, he says.  The objection is promptly overruled.

Where are we on this whole “FBI visited the defense security officer” issue—that raised by Binalshibh’s attorneys yesterday in court, and Sunday, in an emergency filing?  The prosecution apparently has replied to that motion in writing, according to the military judge.  And the government’s view is, unsurprisingly, that the FBI matter can take a backseat to the matter of Binalshibh’s presumption of competence.  But that’s the thing, Judge Pohl says: since competence is presumed, on the one hand, and since the defense isn’t really questioning Binalshibh’s competence, on the other, there’s no need for a hearing under Rule 909 regarding Binalshibh’s fitness to take part in the proceedings.

Which is to say: we’ll move first to FBI matters, as alleged in defense motion AE292.  The military judge asks: what evidence, if any, does Binalshibh lawyer James Harrington wish to put on, regarding alleged FBI contacts with his team’s Defense Security Officer?

We’ll find out around 9:40, after a brief recess.

4/14 Motions Hearing #1: Ex Parte Hearings, FBI Investigations, and a Recess

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Monday, April 14, 2014 at 10:03 AM

It’s game time, y’all. The military judge, Army Col. James Pohl, ascends the bench and resumes pretrial proceedings in the 9/11 case.  All five accused are present, along with their lawyers and a few other folks.

We begin with the advice of rights regarding presence at a pre-trial session—and the possible consequences that might follow even a knowing and voluntary waiver of those rights.  Judge Pohl reads a familiar script to the accused (bar Binalshibh, whose competence—and presence—is at issue this week), and asks each if they understand the right to be present and the potential downsides of skipping out.  All four say they do.

Yesterday, motion AE 152V was filed by the government; it apparently also pertains to Binalshibh and competence matters, and seeks an ex parte hearing. The military judge isn’t inclined to grant it on the papers—and thus, a hearing indeed will be required, now if the government wishes to proceed.  Does it want to?  Indeed it does, says prosecutor Jeffrey Groharing.

Al-Baluchi’s counsel, James Connell III, protests: he’s unclear as to what basis the government is proceeding here; the government only gets to seek ex parte hearings under certain conditions and according to certain rules, and the prosecutors haven’t identified either here.  At any rate, Connell says he can file a substantive response to the prosecutors within an hour.  Can he have a little time?

Wait: Binalshibh lawyer Jim Harrington wants to postpone proceedings for a lot more than an hour.  He request for an abatement arises in connection with an emergency defense motion, filed over the weekend under seal and alleging that the FBI sought to interrogate the security officer assigned to Ramzi Binalshibh’s defense team. According to Harrington, the security officer was questioned about matters pertaining to all defense teams, too.  The investigation makes for a conflict of interest, in his view: between the defense team’s interest in responding to the FBI inquiry, and its interest in representing Binalshibh.  And, Harrington adds, the security guy can’t continue on Binalshibh’s team, pending the outcome of the investigation.  He thus asks Judge Pohl to take up the issue—and for an abatement in all other proceedings in the meantime.  Read more »

2/24 Motions Hearing #5: Medical Care

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Wednesday, February 26, 2014 at 8:10 AM

Argument comes now on AE 199, a government motion seeking the court’s permission to conduct DNA testing on four hair samples in an FBI lab without the presence of the defense’s expert witness.  (It’s not exactly profound stuff, so we’ll mention it here only it passing.)  When that’s done, Judge Pohl turns to AE 205, a defense motion asking the commission to review Al-Nashiri’s medical care. This includes a motion to compel the appearance of various witnesses for an evidentiary hearing on the subject.

Learned Counsel Rick Kammen says that Al-Nashiri was diagnosed with post-traumatic stress disorder (PTSD) by government physicians, but was not given adequate medical care after that diagnosis. Accordingly, the defense wants the government to present the doctors that diagnosed and then oversaw Al-Nashiri so that the court can determine whether they have expertise with PTSD, why they were resistant to meeting with a PTSD expert, and whether they were simply indifferent to Al-Nashiri’s diagnosis. The defense also seeks up-to-date records of Al-Nashiri’s medical treatment to determine whether the government has addressed the issue of his lack of treatment.

Commander Andrea Lockhart rises for the prosecution and states that the court can decide the issue of Al-Nashiri’s medical treatment as a matter of law and thus no evidentiary hearing is necessary. Because defense counsel does not claim that the defendant’s medical care or lack thereof has interfered with his legal rights or due process—such as by impeding the right to counsel or preventing the defendant from making statements—the issue has no nexus to the commission and therefore can be resolved as a matter of law, and with deference to the detention facility.

Lockhart also contests the specific medical experts that the defense seeks to present. She observes that one, the head of the detention facility, was not responsible for overseeing Al-Nashiri’s medical care and so is not relevant. Another, the one that diagnosed Al-Nashiri, is only relevant if the defense can prove that Al-Nashiri’s PTSD was a result of torture, rather than incarceration or something in his past. Lastly, the unnamed doctors who directly oversaw the defendant’s treatment at the facility would be redundant upon the defense’s pending receipt of updated medical records. Lockhart concludes by asking the court that, if the doctor that diagnosed Al-Nashiri be allowed to testify, that the government be given all of the records upon which that testimony will be based and also that it’s own expert be allowed to examine the defendant.

On rebuttal, Kammen argues that the testimony of the head of the facility, or “warden” in Kammen’s words, is relevant because the record should reflect that the individual who “runs the place” failed to properly supervise those under his charge. Judge Pohl remarks that this sounds like the defense is asking him to review the conditions of confinement, which is only appropriate if there is some nexus to the case before the commission. Kammen points out that the environment in which Al-Nashiri’s medical care took place is important for determining the nature of that care.

Lockhart passes on rebuttal and the court moves on to a number of scheduling issues to round out the day. Judge Pohl recesses for the day with plans to return on Wednesday for a closed hearing to finish AE 181.

2/24 Motions Hearing #4: Visiting Camp 7

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Tuesday, February 25, 2014 at 1:12 PM

The afternoon session kicks off with AE 171, a motion that would allow members of the defense team to visit the facility in which Al-Nashiri is housed, referred to as Camp 7, in order to assist the defense in making a sentence mitigation presentation if Al-Nashiri is ultimately convicted and faces the death penalty.

While the government does not object to such a visit, Learned Counsel Rick Kammen explains that the government is seeking to place numerous restrictions on any such visit, including limiting the defense to one visit of Camp 7 by two lawyers and a linguist and a prohibition on speaking with guards and other personnel at the facility. Kammen requests two twelve-hour visits by five people and a linguist, as well as meetings with Camp 7 personnel. He also clarifies that the two visits would likely be separated by several months and the second visit would be used primarily to update records on the conditions of the facility.

Lt. Bryan Davis expresses concern with defense counsel speaking with guards as they visit Guantanamo because it would distract the guards from doing their jobs. Judge Pohl asks why the government could not make guards available for interview when they are not on duty. Davis argues that this would be a separate issue from the facility visit and would require that defense counsel make a specific request to meet with particular guards or personnel who the defendant believes are relevant to his defense. Davis also insists that one twelve-hour visit is sufficient to tour the facility, to which Judge Pohl responds that any potential second visit would likely come up months after the first and the court ”can cross that bridge when we get there.” Finally, Davis requests that the court limit the defense team visiting Camp 7 to three people, including a linguist, due to security concerns at Guantanamo.

Kammen returns to urge the court to provide for two visits initially to avoid future litigation on a potential second visit. Davis passes up the opportunity for rebuttal. Judge Pohl thanks counsel and moves on to the next motion.

2/24 Motions Hearing #3: Change of Venue

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Monday, February 24, 2014 at 8:50 PM

The last matter for the court this morning is AE 187, a defense motion seeking to move the location of the military tribunal from Guantanamo Bay, Cuba to Norfolk, Virginia.

Commander Mizer, for the defense, points the court to Rules for Courts-Martial (RCM) Rule 606(b)(11) as authority for the claim that the case for a present-day attack on the U.S.S. Cole would be held in Norfolk because the “crime scene,” convening authority, witnesses, and even prosecution and defense lawyers all reside in or near Norfolk. Judge Pohl questions whether he has the authority to change the venue when the RCM provision cited by the defense does not have an analogous provision in the rules governing the military commission. In fact, doesn’t the lack of such a change of venue provision indicate Congress’s intent not to provide that power? Mizer notes that two provisions of the Military Commissions Act, 10 U.S.C. § 949j, which requires that defense counsel have comparable opportunity to obtain witnesses before a military commission as it would in federal court, and 10 U.S.C. 949a, applying courts-martial procedures to military commissions, fail to expressly carve out changing venue from the court’s power and so the court is able to change venue. Finally, Mizer notes that the prosecution previously argued that the military commissions lack subpoena power because, in part, they have the option to change venue and, as such, the court should exercise that power if it ultimately decides it does not have subpoena power.

Judge Pohl asks Mizer how he would get around the provision of the National Defense Authorization Act prohibiting the expenditure of Defense Department funds to transfer individuals from Guantanamo Bay to the United States. Mizer urges the court to utilize funding either from the Department of Homeland Security or, more likely, from the U.S. Marshals Service who have general responsibility for moving prisoners across the country.

Lt. Bryan Davis rises for the prosecution and rejects the defense’s contentions that the location of the trial “must have some nexus to the location of the charged offenses” and that holding the trial in Guantanamo Bay deprives the defendant of his right to a fair trial. In regards to the nexus between the location of the trial and the charged offense, Davis notes that such a requirement has never been held to apply to military commissions. Nor is this inconsistent with Article III courts, which often hear cases taking place on the high seas in a location with no nexus to the site of the charged offense. As to potential prejudice to the defendant from a trial at Guantanamo, Davis argues that such prejudice is hypothetical and lacks any evidence bearing out such assertions. Because the jury will be drawn from around the world and will be the same whether the case is heard in Guantanamo Bay or Norfolk, there can be no prejudice to Al-Nashiri. Finally, regarding witnesses, Davis notes that while the prosecution contends that the court lacks subpoena power, it may still exercise compulsory process to issue a subpoena and require a witness to testify remotely. Thus, there is no reason to overturn the convening authority’s decision, pursuant to the Rules for Military Commissions (RMC) Rule 504(e), to hold the trial at Guantanamo.

Mizer responds on rebuttal that pretrial publicity is not the only consideration for a change of venue in the military context and the military judge, at least under the RCM, has the authority to change the convening authority’s venue determination.

The government passes up the opportunity for its own rebuttal and the court recesses until the afternoon session.

2/24 Motions Hearing #2: Capital Punishment & Classified Evidence

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Monday, February 24, 2014 at 7:51 PM

The next motion before the court is AE 181, a defense motion to dismiss the capital punishment referral for all the charges against Al-Nashiri on Due Process and Eighth Amendment grounds because he will not be granted access to classified evidence relevant both to the charges against him and, subject to conviction, to mitigation at the penalty phase. Because at least some of the necessary information for this motion is classified, the court determines at the start that part of the hearing on this motion will be conducted in closed session.

Learned Counsel Rick Kammen explains that in criminal cases the accused has a right to make certain decisions as to his own defense and, especially in a capital case such as this one, defense counsel is obligated by professional responsibility rules to consult with the defendant prior to trial. Kammen calls the “improper classification” of fourteen percent of the evidence requested by the defense on discovery “a structural impediment” to the effective assistance of counsel in this case that places defense counsel “in a professionally complicated position that . . . will require every member of the defense team to consult with their individual ethics state bar authorities.” Kammen distinguishes this case from cases before Article III courts featuring classified evidence because, in those courts, classified evidence is often reviewed by specially cleared counsel and then digested into an unclassified summary that is available to the entire defense team. In Al-Nashiri’s case, however, the classified material is “completely withheld” from the defendant and Kammen floats the possibility, despite the prosecution’s protests to the contrary, that Al-Nashiri could even be excluded from parts of his own trial when classified material is discussed.

After a 15-minute recess, prosecutor Justin Sher rises to argue the government’s position, starting with an assurance that the government’s case in chief (and, as Sher later reveals, presentencing) against Al-Nashiri will be “completely unclassified.” Sher next makes the analogy to classified evidence used in federal civilian courts, noting that “courts consistently hold that . . . an uncleared accused may not access classified information in pretrial proceedings.” Judge Pohl asks how the court should handle efforts by defense counsel to both introduce classified evidence in its case in chief, as well as discuss such evidence with Al-Nashiri while preparing its case in chief. Sher responds that, at trial, the court and government would work through the Rule 505 process to determine whether the defense could present classified evidence with the defendant present; however, defense counsel cannot present such evidence to Al-Nashiri pretrial. Further, says Sher, the defendant may discuss classified evidence with his attorneys to the extent that he knows that information already.

Kammen returns for rebuttal, again distinguishing this case from various federal civilian court cases in which defense counsel or the defendant had access to unclassified summaries of classified evidence. Kammen also rejects the government’s argument that defense counsel may discuss classified evidence with Al-Nashiri once he affirmatively raises it with counsel. He points out that “real lawyers” do not simply ask the defendant to “tell me what you remember,” but instead consult with the defendant based on the evidence presented against him.

The heart of Kammen’s rebuttal focuses on the ability of defense counsel to present classified evidence as part of its case in chief. While he accepts the Rule 505 process upon presentation of such evidence by the defense, Kammen focuses on Sher’s comment that, after the 505 litigation, “the ball . . . is in the government’s court.” Judge Pohl asks Sher to return to the podium to respond to a hypothetical situation in which, after the 505 process, the court determines that classified evidence is admissible and there are no adequate substitutes or stipulations. After expressing his belief that such a circumstance, given the number of available remedies, is incredibly rare, Sher says that the defendant would likely be able to hear the evidence presented by defense counsel in court. Kammen further points out that such a process for defense counsel revealing classified information would make cross-examination particularly arduous where Al-Nashiri becomes aware of classified evidence against him for the first time at trial.

With that, the court moves on to the next motion with the intention of returning to AE 181 in closed session.

2/24 Motions Hearing #1: Things Limburg, Part Three

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Monday, February 24, 2014 at 5:26 PM

The morning’s proceedings begin with a return to Al-Nashiri’s alleged role in the attack on the French oil tanker the M/V Limburg in Yemen in October 2002. In AE 168, CDR Brian Mizer, counsel for Al-Nashiri, seeks the dismissal of charges pertaining to the attack on the Limburg on the grounds that the commission lacks jurisdiction under international law. These are charges seven through nine on the charge sheet for those keeping track at home.

Mizer opts not to rehash earlier arguments about Hamdan II and incorporation of international laws of war into the court’s jurisdiction and jumps immediately to the Military Commissions Act, particularly 10 U.S.C. § 948a(7)(A), which provides the military commissions jurisdiction over unprivileged enemy combatants who have engaged in hostilities against the U.S. or its coalition partners. Noting that the attack on the Limburg took place in Yemeni waters, against a French ship carrying Iranian oil under a Malaysian contract, and indirectly killed a Bulgarian national, Mizer states that the U.S. does not have jurisdiction over claimed related to the attack. In response to a question from Judge Pohl, Mizer further argues out that France did not believe it was a “coalition partner” involved in an armed conflict in Yemen in 2002, pointing out that the congressional cafeteria had renamed french fries “freedom fries” at the time.

Mizer also argues that the case cannot fall under international law’s protective principle, which he says only provides jurisdiction, where reasonable, over acts that “have an effect on state security or the functioning of the government,” neither of which is the case here. To find otherwise, says Mizer, would be to create a form of “universal jurisdiction.”

Brig. Gen. Mark Martins, the chief prosecutor, disagrees with Mizer’s framing of the issue as one of international law, noting that as a matter of statute, there is a “clear grant of jurisdiction based on historical law of armed conflict bases to try unprivileged enemy belligerents who are noncitizens for the offenses that are punishable by a military commission.” He points out that Section 948a(7) grants jurisdiction not only over unprivileged enemy belligerents who have engaged in hostilities against the U.S. or its coalition partners, but also over individuals who were a part of al Qaeda at the time of the alleged offense. Because this attack allegedly took place at the hands of the same al Qaeda cells and in the same general waters as attacks on the U.S.S. Cole and The Sullivans, in an effort to “disrupt the U.S. and world economies” and increase the price of oil, Martins argues that the court has jurisdiction over the Limburg attack. Further, while not relying on France’s role as a “coalition partner” to establish jurisdiction under Section 948a(7), Martins does state that the government considers France a coalition partner because of its military efforts alongside U.S. forces in the fight against al Qaeda, even if the two countries did not agree on operations in Iraq. Although none of this has yet been proven, Martins argues that the court should allow the government to prove these at trial beyond a reasonable doubt. In closing, Martins strongly urges the court to focus primarily on the statutory argument, rather than the protective principle, and only refers to that principle by analogy because this case applies the law of armed conflict.

On rebuttal, Mizer points out that the prosecution never raised the other provisions of Section 948a(7) in the pleadings and requests an opportunity to supplement the defense’s pleading to address this argument, stating that “there are serious legal issues raised by mere membership in al Qaeda in affording this court jurisdiction” under the First Amendment. Judge Pohl pushes Mizer to clarify whether jurisdiction in this case relies on mere membership in al Qaeda, or membership plus actions, but Mizer points out that providing jurisdiction under Section 948a(7)(C) would, according to the text, require only membership with nothing else. Mizer also rejects classifying France as a “coalition partner” in the context of Yemen in 2002, which was separate and distinct from the fighting in Afghanistan. Finally, Mizer suggests that the court hold an evidentiary hearing to determine whether the prosecution’s claims of effects of this attack are borne out by the facts.

Finally, Martins returns to clarify that the prosecution did claim in its initial brief that Al-Nashiri’s alleged membership in al Qaeda should have notified him of the possibility that he would be haled into a court in the U.S. Martins also dismisses First Amendment problems because the accused must not only be members of al Qaeda, but also take some action punishable under the statute.

Judge Pohl asks the defense to file a new pleading by March 7 on the issue of membership in al Qaeda as a basis for jurisdiction, provides the prosecution with two weeks from that date to respond, and moves on to the next motion.

2/21 Motions Hearing #10: Sequestration and Judicial Notice

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Friday, February 21, 2014 at 4:46 PM

There are two more significant motions up today, the first of which Navy Lt. Paul Morris presents ever briefly.  In AE200, prosecutors have asked the court, in advance, not to exclude victims from sequestration during the trial’s penalty phase.  The people in question wouldn’t be merits-phase witnesses, either—though they might wind up being penalty-phase witnesses.  After a quick discussion, Judge Pohl grants the request in principle, on an interim basis, while reserving final decision for when, at last, we draw near to trial.

After some easily-skipped-over procedural bickering, we move to AE186—a prosecution notice to take judicial notice of certain adjudicative facts. As Lt. Morris explains, the rules allow this, when facts are generally known or beyond reasonable dispute.  It seems we have at least some dispute here, given the defense’s opposition; at any rate, Lt. Morris explains that the government asks the court to take notice of six essential facts.  (He adds that the members remain free to accept or reject prior judicial notice—something Judge Pohl visibly doubts.)  Among other things, the facts concern Bin Laden’s issuance of his two famed fatwas, one in 1996 and 1998; the United States’ 1998 attack on Bin Laden’s training camp; the issuance of an executive branch order, also in 1998, designating Bin Laden and company as terrorists; and the location of a hotel in Aden, Yemen.   When asked, Morris tells Judge Pohl that many of these items bear directly on the “in the context of and associated with hostilities” element, which is common to all the charged offenses that the prosecution must ultimately prove.  Morris then ticks through each asserted fact, noting all the reasons why they simply cannot be disputed reasonably.  It is not enough, for example, to nitpick about the details surrounding the United States’ 1998 missile strike against Bin Laden, as the defense does in its pleading.

All this, to Kammen’s eye, represents nothing more than an attempt to grease up the machinery of death.  No civilian court would allow for judicial notice in a capital case like this.  Prosecutors haven’t attached any original documents, either; instead, he says, we have a translation of the original, produced by some unnamed person under uncertain circumstances. Certainly that much is grounds for reasonably dispute.  Kammen then pounces on Morris’s “hostilities” point; under such circumstances, judicially noticing the fatwas would effectively direct a verdict against Al-Nashiri on the hostilities question.  Recall that President Clinton himself called the Cole episode a “peacetime” attack—something Kammen’s crew had planned to highlight at trial, but obviously couldn’t, if the existence on the existence of “hostilities” had been judicially noticed in advance.  For heaven’s sake, venue is never a subject for judicial notice; how could an element of an offense be?   Read more »

2/21 Motions Hearing #9: Aggravating

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Friday, February 21, 2014 at 4:33 PM

So what’s next?  A six-strong battery of defense attacks to various “aggravators”—allegations that, if endorsed by the panel after conviction, would call for a vastly greater measure of moral culpability, and thus make Al-Nashiri more likely to receive the ultimate punishment.  (RMC 1004(c) sets forth so-called “aggravating factors” for capital cases, at least one of which must be found by a military panel before they impose a death sentence; additionally, another rule, RMC 1001, permits prosecutors to admit aggravating evidence after any commission conviction, capital or no.)  A properly instructed jury, as Learned Counsel Rick Kammen explains, must be told that each individual can decide not to impose death as a moral matter.  But you don’t get that sort of appropriate tailoring from the aggravators described in the rules, and here challenged by the defense.

Take AE191, a defense motion to strike a the sixth of the prosecution’s aggravation claims—namely, that Al-Nashiri has engaged in a continuing pattern of violence.  Kammen reasons that such a pattern is essential to warfighting, and also essential to prosecuting his client before this military commission. Ditto the other aggravators described in motions AE192 through AE196; with each, prosecutors have sought to make Al-Nashiri’s death more likely, simply by re-alleging that he engaged in conduct inherent in armed conflict. Consider aggravator #5, which purports to expose Al-Nashiri to greater punishment than other accused, because Al-Nashiri allegedly “creat[ed] a risk to the national security of an adversary.”  Well, you can’t have it both ways, Kammen argues.  In a war, Al-Nashiri gets to behave like a warrior; he doesn’t simply lose that status because some isolated conduct subjects him to trial.

No so, the government rejoins.  “What’s proper in war,” argues prosecutor Justin Sher, is “following the rules.”  He proceeds on this theme for a spell, before Judge Pohl interrupts and asks whether the members have to find these aggravators by a reasonable doubt;  Sher isn’t certain.  At any rate, though, his counterargument is this: under 1004(c) and 1001, the members may consider any stuff that is unique to Al-Nashiri. (This echoes the prosecution’s pleading. It claims that case law squarely contradicts Kammen’s position; and that the aggravators alleged do not in fact duplicate jurisdictional or substantive requirements in the Military Commissions Act.)

Kammen returns, and manages at once to summarize and lambaste the government’s rebuttal.  As he understands Sher, the prosecution’s approach boils down to “have the jury just weigh all the evidence—both aggravators described by statute and any other evidence prosecutors can dig up—and see what penalty results.”  Well, that is a clear violation of the Supreme Court’s ruling in Stringer v. Black, argues Kammen.  Aggravating factors must be specifically defined in law, and not at all vague.  And yet Sher’s argument suggested a put-it-all-in-there-and-see-what-comes-out sort of process; that much is clear from his reliance on RMC 1001, and its language about “evidence” of aggravation.

Hold on, says Judge Pohl: aren’t aggravating factors limited, under RMC 1004(c)?  So long as the prosecution puts on evidence relating to those, then Kammen’s problem scenario simply won’t come to light.  Fine, says the defense lawyer, but such evidence must be narrowly tailored; and again, in his view, Sher and company apparently plan to sweep quite broadly.   This last bit is apparently illuminating for Judge Pohl.  He says he draws a distinction, between determining which kinds of aggravation evidence are admissible, on the one hand; and which sorts of aggravating factors lawfully may be lawfully alleged in a military commission, on the other. Court and counsel push a bit further on this, before Kammen circles back: the aggravators here are unlawful, and must be struck.  Granting of the defense’s motion would also dispose of any factors-versus-evidence problem—but, Kammen says, we can address any residual problems down the line to the extent necessary.  The lawyer’s final words comprise a broadside against commissions rules: the animating idea behind them he says, was to create a “death factory.”  The goal was not fairness, but a result antithetical to modern Eighth Amendment jurisprudence.   Read more »

2/21 Motions Hearing #8: On Grand Juries and Global Norms

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Friday, February 21, 2014 at 2:08 PM

Here is Air Force Maj. Allison Daniels, presenting AE183. Her motion seizes on the lack of grand jury indictment in this capital military commission case.  That’s contrary to the Eighth Amendment, in the defense’s view.

The charges here were the product of a single individual’s discretion.  Well, that’s not good enough for the grand jury.  Structurally, it is the law’s sole protection against vindictive, politically motivated justice, argues Daniels. There’s an analog to the grand jury in the military system, of course: investigation under Article 32.  But there’s no analog down here at Guantanamo.  Thus she asks Judge Pohl to invalidate the capital referral.

No, don’t do that, argues Lt. Bryan Davis.  The prosecutor notes the directly contrary authority confronting the defense: Quirin.  The infamous case takes grand jury rights off the table, entirely, so far as concerns the Fifth and Sixth Amendments.  Sure, Quirin isn’t an Eighth Amendment case; but why would the punishments amendment also contain an implicit grand jury requirement, given the subject’s explicit treatment elsewhere in the Bill of Rights?  No court has ever held this.  And small wonder: doing so would give detainees greater rights than American servicemembers.  Seemingly in the abundance of caution, Davis then swiftly ticks off the procedural protections for capital accused—indictment after Convening Authority review, conviction beyond a reasonable doubt, punishment according to aggravating and mitigating factors, and so on.  (The MCA, he adds, calls for more aggravation in capital cases, than federal courts do.)  The prosecutor ends where he began: this motion is resolved by Quirin, full stop.

No reply; AE183 is submitted.   Read more »

2/21 Motions Session #7: AE180, Part Two

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Friday, February 21, 2014 at 1:58 PM

Before lunch, we were discussing the lack of narrowing provided by Rule for Military Commission 1004.  According to Al-Nashiri’s attorney, Richard Kammen, the rule broadens the availability of capital punishment.  But the law insists instead upon the narrowing of that possibility.  The unconstitutional defect—as the defense explains in motion AE180—requires the dismissal of capital charges in this case.

Judge Pohl asks about evidence of aggravation, which the prosecution plans to offer.  That still won’t suffice, given the lack of narrowing; as Kammen explains, the idea of death penalty law is “guided discretion,” whereby the panel can make an informed moral judgment. But that’s impossible given the background rules, whatever proof the prosecution may present.  He proceeds along similar lines, each time returning to the leitmotif: broadening is unlawful, and countenanced by the commission’s procedures.

But Justin Sher says there is narrowing, and indeed, two times over in a commission case—once at the penalty phase, and then again at sentencing.  The members don’t touch on the 1004 aggravating factors until after finding the accused guilty beyond a reasonable doubt of this or that offense.  And it gives Sher precisely zero pause, that the Military Commissions Act makes all homicide crimes death eligible; again, the panel gets to winnow down from the maximum penalty in each case, both by deciding guilt and afterwards by deciding punishment, through application of various factors. He adds that the legislature has done some narrowing too, in the Military Commissions Act, by taking not-death-eligible homicides off the table to begin with.  Some more back and forth follows along these lines, and Sher concludes.

Kammen stands to reply.  Again: every crime that involves a person’s death in military commission, because of the aggravators and other things, conceivably may lead to the detainee’s execution.   death.  That’s very much different than civilian courts and courts martial.  Sher’s effort to suggest narrowing thus strikes Kammen as arbitrary; at least some offenses here, if charged elsewhere, wouldn’t theoretically give rise to a death sentence.  Really, the penalty structure isn’t about the crimes charged.  Instead it has to do, in Kammen’s view, with the identity of the accused; citizens don’t end up in military commissions, after all.  He hammers home is core point: not every defendant in the jurisdiction can face death, under law.  But that’s precisely what’s going on here.