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

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

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Monday, April 28, 2014 at 4:26 PM

Our special Sunday session convenes at 9:02, with all parties present—including Al-Nashiri. The group commences with the briefest procedural discussion of AE120C, better known as the government’s request to reconsider Judge Pohl’s consequential order compelling discovery into the RDI program, and Al-Nashiri’s treatment abroad.  The prosecution doesn’t oppose a slightly longer time frame for the . . .
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4/25 Motion Hearing #3: Charge Multiplication & Jury Consultants

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Sunday, April 27, 2014 at 8:33 AM

After CDR Lockhart lays out the parties’ agreed upon schedule for the rest of the afternoon session, the court begins with AE 244, a defense motion to dismiss numerous charges as multiplicitous of other charges. Maj. Danels starts off for the defense, explaining that the U.S.S. Cole charges of murder by perfidy, attempted murder by perfidy, caused injury . . .
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4/25 Motion Hearing #2: More Aggravators

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Sunday, April 27, 2014 at 8:32 AM

Picking up on the end of Thursday’s session, the court will consider multiple defense motions seeking to strike the first aggravator—that the life of one or more persons other than the victim was unlawfully and substantially endangered—from various charges against Al-Nashiri. These are AE247, AE248, AE249, and AE250. Learned Counsel Kammen reminds the court that the defense’s objections, . . .
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4/25 Motion Hearing #1: Dr. M’s Brief Appearance

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Sunday, April 27, 2014 at 8:31 AM

The morning session starts off with the calling of a pseudonymous witness, Dr. M, to testify on Al-Nashiri’s psychological diagnosis and current treatment at Guantanamo Bay. But there’s already a problem: Learned Counsel Rick Kammen, of the defense, informs Judge Pohl that the witness viewed Dr. Sondra Crosby’s testimony on Thursday. Although this witness is considered a defense witness, . . .
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4/24 Motion Hearing #4: Miscellany

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Sunday, April 27, 2014 at 12:03 AM

The court returns from recess and quickly puts off consideration of two defense motions—AE229 and AE230—seeking to compel information from the government pertaining to the training and certifications of the medical personnel treating Al-Nashiri, as well as any changes in the Guantanamo medical polices for high-value detainees since 2006. The government indicates that Friday’s witness, the senior medical . . .
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4/24 Motion Hearing #3: Dr. Crosby’s Return

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Saturday, April 26, 2014 at 9:53 PM

The court briefly considers AE236, a defense motion seeking clarification or creation of process by which it may appeal denials of access to two classified government servers—the Joint Worldwide Intelligence Communications System (JWICS) and the Secret Internet Protocol Router Network (SIPRNet). Maj. Hurley explains that currently the defense may only access those servers when it is deemed to . . .
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4/24 Motion Hearing #2: Recalling Crosby & Another Multiplicitous Charge

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Friday, April 25, 2014 at 9:24 PM

The afternoon session gets started without Al-Nashiri in attendance. Learned Counsel Rick Kammen rises to press Lt. Hurley’s case one last time that the defense should be able to question Dr. Crosby about certain facts that, he says, will show systemic problems that contribute to the inadequacy of treatment at Guantanamo Bay. Judge Pohl hears out the . . .
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4/24 Motion Hearing #1: Dr. Sondra Crosby

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Friday, April 25, 2014 at 5:55 PM

The court begins Thursday’s session with AE205K, a government request, opposed by the defense, that a witness be allowed to testify under a pseudonym. CDR Brian Mizer explains that this is a general objection by the defense to “shroud[ing] these proceedings in secrecy.” While there are obviously limits on openness in this context, the defense worries that . . .
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4/23 Motion Hearings #5: A Multiplicity of Charges

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Friday, April 25, 2014 at 1:34 PM

To close out the unclassified portion of the afternoon session, the court hears argument on AE231-234, all defense motions to dismiss charges for multiplicity. The defense first raises AE231, seeking dismissal of the prosecution’s first charge, perfidy, because it is subsumed by the elements of the second charge against Al-Nashiri, murder in violation of the . . .
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4/23 Motion Hearings #4: Still More Discovery & Jury Sequester

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Thursday, April 24, 2014 at 8:35 AM

The court begins the afternoon session with quick consideration of one more defense discovery motion, AE226, seeking exculpatory information from a case in the Southern District of New York pertaining to additional people that were allegedly involved with the bombing of U.S.S. Cole. Learned Counsel Kammen explains that this particular motion pertains to information about Sayf . . .
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4/23 Motion Hearings #3: Discovery, Discovery, Discovery

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Wednesday, April 23, 2014 at 10:59 PM

The court returns from recess to consider two defense discovery motions, AE224, seeking information surrounding the facts and circumstances of the death of Abdul Aziz Bin Attash, and AE225, requesting files on the Kuwaiti prosecution of four individuals in 2005 for the attacks on the Lumburg and U.S.S. Cole. On the Bin Attash motion, CDR Mizer . . .
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4/23 Motion Hearings #2: In Defense of Ex Parte Letters Rogatory

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Wednesday, April 23, 2014 at 7:46 PM

Next up is AE223A, a government response to a defense request that Judge Pohl authorize ex parte letters rogatory—essentially letters from the court to a foreign government seeking assistance in obtaining evidence and witnesses. Although the pleading in question is the government’s response, Al-Nashiri lawyer CDR Brian Mizer rises first to explain exactly what it . . .
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4/23 Motions Hearing #1: More Arguments Against Capital Punishment

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Wednesday, April 23, 2014 at 6:18 PM

Picking up on the tail end of Tuesday’s arguments on capital punishment, the prosecutor CDR Andrea Lockhart says that the government is ready to argue AE212, a defense motion seeking to strike the prosecution’s intent to seek the death penalty against Al-Nashiri. Major Allison Danels begins by distinguishing this argument from her position the previous . . .
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