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3/3 Session #3: To Reconsider

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Tuesday, March 3, 2015 at 2:43 PM

Lunch hour concludes at Guantanamo and at Fort Meade. Thus we come to AE248H, the prosecution’s motion to reconsider Judge Spath’s prior ruling, that granted a defense motion and excluded certain evidence of Al-Nashiri’s “wanton disregard for human life,” so far as concerns the charge of terrorism against the accused.

In short, the government desires to show that foreign nationals located in and around the Cole, at the time of the attack, were harmed—rather than military personnel who were on the boat, but who are not, under the circumstances, deemed protected persons under international law. Such evidence would demonstrate the “wanton disregard” alleged by the government, but Judge Spath had excluded it incorrectly, in the view of the Chief Prosecutor, Brig. Gen. Mark Martins. The court’s ruling only permitted proof regarding foreign nationals on the Cole only, but blocked proof as to other persons near the explosion—despite the government’s apparent plan to prove “wanton disregard,” by submitting evidence regarding affected non-victims who were in the surrounding area.

Thus Martins specifically asks for paragraph five of Judge Spath’s earlier order (248B) to be reworded. This “unjustifiably” operates to exclude relevant, probative evidence regarding the Cole—and the fact that the vessel’s bombing counted as a terrorist attack. The point is this, in Martins’ view: Judge Spath’s error arose from confusion. The defense, and later the court, relied on materials concerning the charge of perfidy, not the charge of terrorism, as Martins makes clear through citation of transcript and motion papers. Only the latter charge includes the “wanton disregard” element.  The Chief Prosecutor thinks this mistake in turn led Judge Spath to grant the defense filing, and improperly to shrink the universe of evidence that prosecutors might use to prove “wanton disregard.”  But he now asks Judge Spath to reconsider, especially given the charge sheet’s extensive and detailed allegations of operations taking place in and around the Gulf of Aden, where the Cole was attacked. In this regard the Chief Prosecutor also cautions that, if allowed to stand, Spath’s ruling might cut out highly probative testimony: take the testimony of one Yemeni witness, who observed events from a refueling dolphin adjacent to the Cole. (The latter wasn’t “on board” the Cole, and thus his comments would not be permissible under Judge Spath’s order.) Or that of many other Yemenis, whose names and locations are displayed on a chart that Martins displays. For these reasons, the Chief Prosecutor asks the court to strike the offending language in the relevant paragraph, or to clarify his ruling so as to permit the admission of needed proof.

Maj. Tom Hurley speaks now for the accused. There was a ruling by the commission he says; and a motion to reconsider, argued extensively by Gen. Martins; Hurley seems to be complaining about the lack of any new facts or law.  And one or both are required in order to grant a reconsideration motion.  The prior ruling was instead “clearly supported based on the evidence and the law,” in the defense lawyer’s view. He asks Judge Spath to deny the prosecution request—adding that Martins and company appear to seek an impermissible advisory opinion in advance of trial. (As an aside, Hurley observes that the prosecution surely will take an interlocutory appeal, upon a denial of the motion—and thereby delay matters.)  He adds a few words more—Hurley appeals to the court’s experience and wisdom, for example, in urging the motion’s rejection—and returns to counsel table.

Martins in rebuttal: You have the authority to reconsider, just as we’ve suggested, under military commission rules. Clear errors of law, for example, can and should compel reconsideration. And there’s no request for an advisory opinion here, either: Instead, the prosecution seeks clarity about what is and what is not out of bounds.  He concludes.

This brings our docket—and our coverage—to an end. Court and counsel touch on a few housekeeping and scheduling matters before the proceedings wind down.  See y’all in April.

3/3 Session #2: Housekeeping

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Tuesday, March 3, 2015 at 11:10 AM

We return from recess.

What will the way forward be?  The military judge mentions pending motions AE319F and G, and AE333, and AE337.  In his view, Judge Spath may be able to rule on some of these without in-court argument, between now and the case’s next session in April. His meaning is clear: “There’s only one of me,” he says, and the workload is simply mind-blowing, and much of it involving reviews in secure facilities. He’s allusion to needing more time suggests that we won’t be handling these filings just now; Judge Spath also notes a few rulings on motions that are forthcoming, too.

Some more housekeeping and calendar talk follows; its conclusion brings us to AE248H, the prosecution’s motion to reconsider Judge Spath’s prior ruling, excluding certain evidence of Al-Nashiri’s “wanton disregard for human life.” But it seems we won’t take up this piece until after lunch. See you at 1330.

3/3 Session #1: Suppression, and SSCI Matters

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Tuesday, March 3, 2015 at 10:39 AM

Air Force Col. Vance Spath, the military judge, resumes proceedings.  The question is what those proceedings will comprise, the docket having been winnowed greatly, both by yesterday’s unlawful influence ruling and by some still unresolved questions about classified material.  Could there be unclassified argument with respect to AE319F and AE333?  (It seems the issue of how to handle certain classified matters bearing on those motions is still awaiting resolution by the military judge.) Apparently not; that takes Judge Spath to AE327, a motion to suppress statements by Al-Badawi to federal agents. There’s a wrinkle there too: those statements comprise at least some hearsay, a subject covered by another government motion debated yesterday.  The procedural kinks as to the latter are still being “worked out,” Judge Spath observes—thus no argument will happen today on AE327, either.

Wait: The agenda also still includes AE335.  It’s likewise a motion to suppress, the suppression this time directed at statements by Al-Darbi, another GTMO detainee and commission accused—who happens to have entered into a pre-trial agreement with prosecutors. Court and counsel quickly clarify this detail: It seems Al-Darbi could be a prosecution witness in the case against Al-Nashiri. And the idea is to have him testify only, rather than to admit his prior statements which were made during a 2002 “enhanced” interrogation. Only the future testimony is implicated by the motion.

For his part, Lt. Bryan Davis sees the filing as touching legal issues only, despite a belated request for witness testimony—which, the prosecutor complains, the defense filed only last night.  (Recall that evidentiary hearings, as opposed to purely legal ones, have been put off for the week, in light of Judge Spath’s ruling on unlawful influence.)  It’s a question of standing only, Davis says, one which the court can answer without recourse to any evidence at all. The prosecutor telegraphs his argument here: Al-Nashiri has no standing to challenge a violation of Al-Darbi’s rights, especially one lying off in the future.

Judge Spath is curious, so he asks the defense for argument on AE335 now.  One of Al-Nashiri’s attorneys, Lt. Cmdr. Jennifer Pollio, observes initially that Al-Darbi’s testimony bears only on the Limburg charges—which were dismissed, which are the subject of a pending appeal, and evidence related to which cannot, under commission rules, be addressed until that appeal is resolved. Davis disagrees on the procedural point: Al-Darbi’s testimony bears not merely on Limburg charges, but also on the broader theory of liability described on the charge sheet.

The court reserves judgment on the threshold issue of Limburg-relatedness. Pollio therefore turns to the substance, beginning with her rejection of Davis’s suggestion of untimeliness in seeking to compel witness testimony.  It’s “unfathomable,” she says. And, at any rate, there’s no harm in taking up the motion to compel. But what about the merits? Judge Spath notes that the government doesn’t plan to offer any of the detainee’s statements to interrogators—evidently because of the use of so-called “enhanced interrogation” methods which it now acknowledges as torture. Given that, how can Judge Spath “suppress” Al-Darbi’s down-the-road trial testimony, in advance?  Pollio: we need a hearing on the residual taint of unlawful interrogation, now; what if that taint is so pervasive as to preclude Al-Darbi from ever taking the stand?  The court counters by wondering about Al-Darbi’s standing; Pollio insists that the accused, Al-Nashiri, undoubtedly has standing to challenge the use of unlawfully procured testimony against him. The lawyer concludes by stressing as always that no Limburg material—including this—should be litigated, pending action by the military appeals court, and that her motion to compel witnesses is timely.   Read more »

Al-Nashiri Motions Hearing: March 3 Session

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Tuesday, March 3, 2015 at 9:00 AM

Litigation resumes in one of Guantanamo’s two capital military commission cases today at 0900; likewise the CCTV broadcast of the pre-trial session, which we’ll follow from our little perch here at Fort Meade, and post about throughout the day.

You’ll find updates on the prosecution of Abd al-Rahim al-Nashiri in the “Events Coverage” section, and links to the updates below, too.

3/3 Session #1: Suppression, and SSCI Matters

3/3 Session #2: Housekeeping

3/3 Session #3: To Reconsider

3/2 Session #3: Odds and Ends

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Monday, March 2, 2015 at 3:37 PM

Motion AE319J is next. In it, the defense asks to postpone the government’s bid to admit hearsay, pending the Court of Military Commission Review’s (“CMCR”) resolution of an interlocutory appeal concerning charges against Al-Nashiri pertaining to the Limburg.  (As readers likely know, Judge Spath dismissed charges touching Al-Nashiri’s role in the attack on that vessel; the government appealed to the CMCR.)  Lt. Cmdr. Jennifer Pollio, speaking on behalf of the accused, drills down hard. She insists that the case cannot go forward in piecemeal fashion, so long as the CMCR hasn’t ruled.

That approach, in Polio’s view, is contrary to the military commission rule 908(b)(4); this prohibits further proceedings, except as to charges and specifications not related to the ruling potentially affected by the appeal. But on the prosecution’s very theory of the case, all of the counts on the charge sheet—Limburg and non-Limburg—are quite interrelated. The whole case rests on a single theory, that Al-Nashiri was at the center of a “boats operation,” after all. She thus quickly sums up: hold off on all this “can the hearsay be admitted” stuff, your honor, until the CMCR resolves the government’s appeal.

Over to the prosecution, and to Col. Robert Moscati—who doubts Pollio’s claims. There’s just no relatedness there: the Limburg counts are separate from the, say, Cole counts. He adds a word or three more, and then sits. Pollio adds only a few words of her own in reply, mostly underscoring once more than the “boats operation” comprises, well, a single, overarching operation involving many different boats. She concludes.  (This transitions nicely into some pending motions to compel discovery and witnesses, both within the 319 series. But that means a foray into classified information, it seems, and thus a Rule 505 hearing on the handling of secrets in the courtroom; we’ll get to that later today, it seems.) Read more »

3/2 Session #2: How to Do Hearsay

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Monday, March 2, 2015 at 2:12 PM

The lunch hour comes to a close and we go back in the record in United States v. Al-Nashiri.  

What’s the way forward?  We wonder, given Judge Vance Spath’s prior ruling on unlawful influence, which excised any and all evidentiary hearings from the week’s agenda, and shortened an April hearing to boot. Some discussion follows; it seems we’ll first discuss purely legal issues having to do with hearsay statements by absent folk—in particular, motion 331A. In the latter, the government proposes a particular process for demonstrating the admissibility of material identified in two other prosecution pleadings, AE166 and AE207.  The former deals chiefly with hearsay statements; and, as readers likely know, hearsay is admissible under certain circumstances in the military commissions—but the presence or absence of those circumstances must be addressed by the military judge.

Trial counsel Navy Lt. Bryan Davis talks process, and urges a “common sense” approach to figuring out whether hearsay comes in or doesn’t. Judge Spath has concerns, the biggie being this: Each hearsay statement must be analyzed separately, with respect to corroboration, the unavailability of the hearsay declarants, and so on. He has to be able to compartmentalize, and the piece-by-piece review is going to take time. When asked about the timing issue, Davis says he plans to call 8 witnesses with respect to one series comprising roughly eighty hearsay statements. But the prospect of piecemeal witness testimony, with some at this time and other parts down the road, worries Davis. That can be burdensome, given the need for travel to and from Guantanamo: Davis’ key chain of custody witness would have to fly down several times, for example. Showing relevance will likewise call for time-consuming presentations, too: think of pieces of fiberglass taken from the destroyed Cole itself, or other evidence that will call for multiple witness comments. We thus quickly come to the punchline: Prosecutors want Judge Spath to hold off on ruling about hearsay determinations, pending the full submission of all evidence needed to establish why this or that hearsay ought to be admitted. Don’t go piece-by-piece, your honor; let the government put on the full range of material before ruling on hearsay. Read more »

3/2 Session #1: Unlawful Influence

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Monday, March 2, 2015 at 11:36 AM

The military judge, Air Force Col. Vance Spath, ascends the bench.  Our proceedings return to order.

And they begin with a bang: That is, with the court partially granting defense motion AE332, regarding unlawful influence owing to actions of the Defense Department and the commissions’ Convening Authority, retired Marine Maj. Gen. Vaughn Ary.  A written ruling, Judge Spath says, is forthcoming, but the gist his bench ruling is this: Last week’s rescission of a controversial order (so called “Change One”), requiring military commission judges to reside at Guantanamo and to work on commission cases only, does not remove the appearance of an improper effort to improperly influence commission proceedings.  In that respect, the defense seems to have prevailed.

The court’s factual summary seems to telegraph the outcome. First Judge Spath recites a quite lengthy factual summary—in which Spath notes, among other things, the concerns over the “pace of litigation” which had motivated Change One initially. Additionally, in the view of the Convening Authority, Spath intones, “realignment of resources” was required, so as to make commission judging a full-time affair and to bring commission litigation to a speedier resolution. That’s problematic. As Spath observes, the Convening Authority has no authority over trial judges, and their discretion to adjust the litigation tempo, bar the duty to ensure that the judges receive needed resources. And there is no power, he adds, to influence judicial discretion or to push the pace of commission cases.

This brings Spath to a discussion of controlling legal principles regarding unlawful influence. These are conceptually distinct from the narrower courts martial doctrine of unlawful command influence—but courts martial precedents are nevertheless instructive.  Among other things, the case law precludes measures that even create the appearance of unlawful influence, or “UI,” as Judge Spath puts it. As for whether such an appearance exists, the test is one of objective reasonableness.  This raises the question squarely: Would an objective observer harbor significant doubt about the proceedings’ fairness?

Here, the answer is Yes.  Though well-intentioned, Judge Spath says, the Convening Authority’s motivation was clearly to speed up commission proceedings, and thus to trample discretion committed solely to the trial judiciary. Said differently, an objective person would have doubts about the case’s fairness under the circumstances. One relevant detail, in the court’s view, goes to the absence of notification of Change One to the Defense Department’s General Counsel and other high-ranking personnel; another has to do with the obviously problematic nature of giving judges an incentive to hurry up commission cases, so as to return to prior duty stations. (You can see lawyers asking the question: Did the court deny a defense-proposed continuance in the interests of justice, as the rules require, or instead merely in order to hasten a departure from the Naval Station?) Finally, Spath observes that the government has presented no evidence at odds with this account. (As an aside, the court points to the futility of the policy: Why would making only the judges take up full time at GTMO move things along more quickly? After all, says Judge Spath, hearings and trials require not merely judges, but also counsel, witnesses, evidence, and accused.)   Read more »

Statement of GTMO Special Envoy at Yesterday’s HASC hearing on Guantanamo Bay

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Friday, February 13, 2015 at 11:28 AM

Yesterday, the House Armed Services Committee (HASC) Subcommittee on Oversight and Investigations received an “Update on Detainee Transfers from GTMO.”

You can read the testimony of the Department of Defense’s Special Envoy for Guantanamo Detention Closure, Paul M. Lewis, here. The testimony of the Department of State’s Acting Special Envoy for Guantanamo Closure, Charles Trumbull, is available here.

You can also watch the committee hearing below:

Lisa Monaco Announces New Cyber Threat Intelligence Integration Center

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Tuesday, February 10, 2015 at 12:53 PM

At the Wilson Center, Lisa Monaco, Assistant to the President for Homeland Security and Counterterrorism, delivered a keynote address about the evolving nature of the cyber threat and the Obama administration’s plan to address it. The speech announced the creation of a new Cyber Threat Intelligence Integration Center, which will be modeled on the National Counterterrorism Center.

You can watch the event here or below:

Broadcast live streaming video on Ustream

2/9 Session #2: The Translator, Part Two

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Monday, February 9, 2015 at 10:59 AM

Our session is once more called to order.  The defense and accused are here, but now the Special Review Team is not—its place having been taken by the ordinary prosecution team.  (The two groups, you’ll recall, maintain strict independence from one another, given the conflict allegations arising from the FBI’s approach to a member of the Binalshibh defense team.)

On to business: Judge Pohl asks about the United States’ view of the translator issue; the Chief Prosecutor, Mark Martins, says he is now aware of it and has conferred with the defense about the recognition this morning, by Binalshibh and others, of a courtroom translator who allegedly also worked at a CIA blacksite. Martins says he is keen to do some due diligence, and therefore proposes that his side quickly submit briefing on the issue. The translator in question is no longer in the courtroom, Martins adds; it may also be necessary at some point to enter into a closed setting to discuss any classified details.

One of Khalid Shiekh Mohammed’s lawyers, David Nevin, requests a delay in the proceedings, pending further investigation; he would also like the translator to be ordered to remain on the island, and to be made available to the defense. How long does Nevin need?  The military judge observes that the ordinary commissions filing calendar, after all, is three weeks’ long. Martins rises and says he envisions a much shorter timeline: His crew can get the matter briefed quite quickly, maybe today, he says.

The idea of prosecution briefing later this afternoon or evening, with a reconvening on Wednesday after defense investigation and an attempt to interview the translator, appeals to the military judge. And it appeals to Nevin and Martins, too, evidently. It appeals somewhat less to one of Walid Bin Attash’s lawyers, Cheryl Bormann—who observes that, to the extent the United States is once more seeking to infiltrate defense teams improperly, the proper government party to do any investigation is the Special Review Team, and not Martins and company.  That’s a consequential, looming issue, in her view.  For his part, the Chief Prosecutor says he is aware of his obligations, and will act accordingly; we don’t learn any more about who will do the factfinding on the government’s side, so far as the translator is concerned.

Before recess, the military judge advises each accused of their right to attend pre-trial sessions, their related ability to voluntarily and knowingly waive that right, and the risks that go along with such waivers. Do each of the accused understand such things?  When asked by the court, all five of the 9/11 accused answer “yes.”

And that brings pre-trial court argument in the 9/11 case to a close—at least until 0900 on Wednesday.

2/9 Session #1: The Translator

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Monday, February 9, 2015 at 9:10 AM

The gavel bangs. The military judge, Army Col. James L. Pohl, calls the proceedings to order. Members of the prosecution are absent, their place taken by a Special Review Team that has been looking into conflict allegations involving one accused, Ramzi Binalshibh.

Housekeeping: LCDR Kevin Bogucki asks to withdraw as the latter’s counsel, owing to his retirement; Binalshibh consents to this, he says, in English. But he adds that he’s been having problems—-it seems that his English to Arabic translator is untrustworthy, owing to the translator’s past role at a CIA blacksite. The military judge assures Binalshibh that he’ll get to that issue, after credentialing of some new defense lawyers and other odds and ends.  Other defense counsel chime in though: They and their clients share Binalshibh’s concern about the translator, and observe that the problem was only called to their attention moments ago.

This prompts a request for a recesss, which Judge Pohl grants.

UPDATE: We’re back. It seems the translator issue may be a real one—and the United States might well have a position as to its resolution. Thus the defense recommends, and the court agrees, that the prosecution be called back to court and the Special Review Team—which has been examining issues arising from the FBI’s interview of a member of the Binalshibh defense team—be excused.  (The two groups have been walled off from one another, for independence reasons.)

The swap will require a bit more time, and a recess until 10:30.

Live: Susan Rice Outlines 2015 National Security Strategy at Brookings

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Friday, February 6, 2015 at 12:50 PM

At the top of the hour, the Brookings Institution will host US National Security Adviser Susan Rice for the launch of President Obama’s National Security Strategy, which was released earlier today. During the event, NSA Rice will outline the president’s foreign policy vision and priorities. This is the first National Security Strategy to be released from the White House since 2010.

The White House has a fact sheet on the 2015 National Security Strategy. You can read the full 2015 NSS here.

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

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Tuesday, November 18, 2014 at 3:11 PM

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

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

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

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

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

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Tuesday, November 18, 2014 at 2:58 PM

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

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

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

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

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

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Monday, November 17, 2014 at 2:00 PM

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

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

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

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

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

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Monday, November 17, 2014 at 11:26 AM

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

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

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

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

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

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

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

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

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

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Monday, November 17, 2014 at 10:43 AM

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

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

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

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

11/17 Session #1: Article 5?

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Monday, November 17, 2014 at 10:06 AM

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

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

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

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

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

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Monday, November 10, 2014 at 10:44 AM

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

Enjoy.

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

11/6 Session: Fighting Over MRIs and Hearsay

11/6 Session: Fighting Over MRIs & Hearsay

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Monday, November 10, 2014 at 10:38 AM

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

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

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

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

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

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

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

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

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