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Category Archives: Event Coverage: Military Commissions: Al Nashiri Case

8/11 Session #1: Severance, Reconsidered

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Monday, August 11, 2014 at 10:25 AM

The military judge, Army Col. James Pohl, takes the bench.  Only one accused is present: Ramzi Binalshibh, whose case the court recently separated out from that against the other four accused in the 9/11 case.  His lawyers are there too, including Jim Harrington and LCDR Bogucki. The court opens by summarizing the state of play, . . .
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8/6 Motions Hearing #2: MRIs and Skype

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Thursday, August 7, 2014 at 10:19 AM

When the court returns from recess, the parties move into argument on AE277, the defense’s motion for a judicial order compelling an MRI of Al-Nashiri’s brain to determine if he has brain damage. The defense presents two lines of argument. First, Rick Kammen, Al-Nashiri’s Learned Counsel, says his client needs the MRI for medical treatment, and . . .
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8/6 Motions Hearing #1: Tu Quoque

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Thursday, August 7, 2014 at 9:44 AM

Judge Spath begins today’s hearings noting that Al-Nashiri is not present. The court first hears testimony from the Guantanamo Staff Judge Advocate who had received Al-Nashiri’s waiver, Captain G, who walks through the standard certifications that the waiver was voluntary. The proceedings quickly turn contentious. Learned Defense Counsel Richard Kammen then stands and questions Captain . . .
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8/5 Motions Hearing #4: On the MCA’s Constitutionality and Statutes of Limitation

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Wednesday, August 6, 2014 at 8:16 PM

Judge Spath then moves to AE 295, a defense filing and the penultimate item on the agenda.  It’s a constitutional broadside against the commissions’ authorizing legislation. Major Hurley rises for the defense and asks that all charges be dismissed against al-Nashiri, “because the Military Commissions Act of 2009 is unconstitutional, specifically because it is designed . . .
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8/5 Motions Hearing #3: Cole Photographs and the Yemen Friendship Agreement

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Wednesday, August 6, 2014 at 6:12 PM

In the final session for the day, Judge Spath announces he has come to a ruling on AE277.  This is the defense’s bid for Al-Nashiri to have an MRI examination, presumably in order to unearth the damage wrought by his abuse at CIA hands. The item had been the subject of a secret Rule 505(h) . . .
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Al-Nashiri Motions Hearing: August 5 Session

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Wednesday, August 6, 2014 at 4:36 PM

A reminder: Lawfare has digests of yesterday’s pre-trial proceedings in United States v. Al-Nashiri available in our “Events Coverage” section; you will find links to Lauren Bateman’s dispatches below, too. 8/5 Motions Hearing #1: Death Penalty Procedures and Mitigation Experts  8/5 Motions Hearing #2: Things Classified 8/5 Motions Hearing #3: Cole Photographs and the Yemen Friendship Agreement 8/5 . . .
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8/5 Motions Hearing #2: Things Classified

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Wednesday, August 6, 2014 at 9:15 AM

When the Court reconvenes, Major Tom Hurley begins argument on AE 280. In it, the defense requests that summaries of classified discovery be marked with more granular classification information.  Specifically, the defense objects to the government’s practice of marking whole documents as classified; instead, the defense wants the government to go through the process of reviewing the . . .
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8/5 Motions Hearing #1: Death Penalty Procedures and Mitigation Experts

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Tuesday, August 5, 2014 at 10:10 PM

The military judge, Air Force Col. Vance Spath, begins the morning’s hearing in United States v. Al-Nashiri—his second on the case—by ruling on two pending motions. First, Judge Spath grants defense motion AE 305, in which the detainee’s lawyers had asked the new military judge to block his predecessor, Army Col. James L. Pohl from resolving certain outstanding motions . . .
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8/4 Session #5: Things 120, Part Two

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Monday, August 4, 2014 at 4:03 PM

CIA discovery—the subject of Judge Pohl’s ruling in AE120C, and a subsequent order on reconsideration—is still before us. In motion AE120BB, the defense seeks a timeline for getting its hands on such discovery under Judge Pohl’s order. Maybe AE120BB will be moot in time, forecasts Al-Nashiri’s Learned Counsel, Richard Kammen. In the event that it . . .
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8/4 Motions Hearing #4: Things 120, Part One

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Monday, August 4, 2014 at 2:35 PM

And lo, defense motion AE120S is before us. In it, the defense moves to compel production of an index of outstanding and denied discovery. But its not just any discovery we’re talking about, as Capt. Daphne Jackson explains: no, this index concerns the discovery, ordered by Judge Pohl in AE120C, into Al-Nashiri’s quite secret and . . .
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8/4 Motions Hearing #3: Which Judges Get to Decide What

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Monday, August 4, 2014 at 2:28 PM

Not too long after lunch’s conclusion, court and counsel confront the question: will Judge Spath recuse himself from service as presiding judge, having served on the case for only a few weeks? Nope. Explaining his ruling from the bench, Judge Spath says that a disinterested person wouldn’t see a real or perceived problem with his continued . . .
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8/4 Session #2: A New Judge, Part Two

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Monday, August 4, 2014 at 12:01 PM

We continue with Learned Counsel Richard Kammen’s questioning of Air Force Col. Vance Spath, the case’s new and recently detailed military judge. The defense has asked Judge Spath to recuse himself, given the involvement of another of Al-Nashiri’s attorneys, CDR Brian Mizer, in the ongoing appeal of the high profile Witt court martial—in which Judge Spath served . . .
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8/4 Session #1: A New Judge, Part One

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Monday, August 4, 2014 at 10:40 AM

The scene on the grainy Fort Meade screen is different: there’s a new judge. Consistent with a recent and abrupt change-up in the case, the judicial bench is filled today not by Army Col. James Pohl, but by his recently named successor, Air Force Col. Vance Spath. The latter is the Chief Judge of the . . .
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5/28 Session #4: On the Motion to Reconsider the RDI Discovery Order

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Wednesday, May 28, 2014 at 4:44 PM

We return from a recess-ette.  The parties quickly handle AE272, in which the defense asks the commission to replicate, in this case, a ruling entered in the 9/11 case.  Recall that in the latter, the FBI had conducted a security investigation, contacted a member of the defense team in connection with its inquiry, and ultimately . . .
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5/28 Session #3: Members Versus Judges; Continuing Discovery Obligations

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Wednesday, May 28, 2014 at 2:36 PM

Action resumes at the Expeditionary Legal Complex, Courtroom Two.  Army Col. James Pohl, the military judge, calls the proceedings once more to order. The defense, in AE267B, makes a due process argument: basic fairness insists upon Al-Nashiri being permitted to choose between a trial by military commission members, or by the military judge sitting alone. . . .
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5/28 Session #2: Protective Order Rules, and Ex Parte Contacts

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Wednesday, May 28, 2014 at 12:30 PM

In AE13N, the defense seeks relief from the case’s protective order regarding national security information—in particular, permission for defense counsel in this commission case to draw on classified evidence of Al-Nashiri’s treatment and condition, in an affidavit which they wish to file in Al-Nashiri’s pending habeas challenge in a D.C. federal court.  As written, the . . .
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5/28 Session #1: Getting the SSCI RDI Report—or Not

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Wednesday, May 28, 2014 at 12:18 PM

It’s on—the open part of our proceedings, anyway.  Recall that court and counsel began their day already, some time earlier this morning, in a Role 505(h) session that has concluded.  The parties there debated the need (if any) to use classified material during our session, along with possible workarounds.  That having ended, the day’s publicly viewable . . .
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Statement from the Chief Prosecutor on This Week’s Hearings in Al-Nashiri

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Tuesday, May 27, 2014 at 7:58 PM

The Chief Prosecutor at Guantanamo, Brig. Gen. Mark Martins, had this to say on the eve of a pre-trial motions hearing in United States v. Al-Nashiri–-which commences tomorrow, and which Lawfare will cover as per usual, in almost-live-blog format. The Chief Prosecutor’s remarks begin: Good afternoon. Yesterday was Memorial Day, and so I pause to honor the . . .
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4/27 Session #3: Dr. 97 and AE205

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Tuesday, April 29, 2014 at 10:19 PM

We’ll hear next from a much-anticipated witness called by the defense: an Army psychiatrist who—as Judge Pohl rules from the bench, overruling defense objections—will testify under a pseudonym after all.  The witness, who the parties now refer to as “Dr. 97,” is sworn in.  He testifies now via video link, in connection with AE205, a defense . . .
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4/27 Session #2: Discrimination in Death

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Monday, April 28, 2014 at 9:10 PM

We shuffle things around a bit, first by putting off AE263 temporarily.  It appears that motion, along with related litigation concerning hearsay statements offered by the prosecution, will be postponed until a later time closer to trial. That takes us to AE264, a constitutional challenge brought on the basis of equal protection principles grounded in . . .
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