Terrorism Trials: Military Commissions

2/19 Motions Session #2: Lawyer Stuff

By Wells Bennett
Wednesday, February 19, 2014, 10:58 AM

This takes us to presence.  Does Al-Nashiri understand his right to attend the proceedings, and the consequences that might flow from even a knowing and voluntary waiver of that right?  After hearing the usual speech from the bench, Al-Nashiri says he does.

We proceed to lawyer matters, three of them in all.  The first concerns the absence of Capt. Daphne Jackson, one of Al-Nashiri’s attorneys, from Guantanamo. She had been detailed to the case last year, but became pregnant shortly thereafter; the court had postponed a scheduled December session on account of her child’s birth.  But the court would not allow further postponements, and recently denied a motion for further funding needed to bring Jackson’s child to Guantanamo and to have someone assist with child care there.  The denial essentially ensured that Jackson would not attend today. But, Kammen points out, commission rules call for all defense counsel to be present, and Jackson isn’t.  Shouldn’t the case therefore be continued?  The answer arrives after some irritated barking from the bench: no. Judge Pohl’s prior ruling stands.

Next up is the matter of Nancy Hollander, an attorney and longtime participant in Al-Nashiri's defense. CDR Brian Mizer, one of Al-Nashiri’s newer lawyers, explains that Hollander has yet to make an appearance in this go-round of the commission case.  And she desires to visit her client, but hasn’t been able to recently.  All this despite Hollander’s having taken all the procedural steps necessary to take a seat at counsel table, save one: she hasn’t been read on to the classified compartment required for her to confer with Al-Nashiri.   Until that happens, Mizer wants an abatement of proceedings. Hollander, after all, has been part of the defense team since 2008, and has met with Al-Nashiri many times before.

According to Mizer, Hollander had long been permitted by secrecy rules to meet with the accused; but that changed this year, when she sought access to other classified stuff---discovery in the commission case.  This time the Defense Department oddly reversed itself, and blocked Hollander from meeting Al-Nashiri in person and from reviewing classified discovery.  And the reversal was highly suspicious: earlier, the Defense Department had explicitly found Hollander not to be a security threat, and approved her read-on application.  Indeed, when the defense sought documents related to Hollander's investigation, the most important one reappeared as a “disapproval,” with what looked like prior, “approval” language whited out.  Mizer adds that the reasons for Hollander’s rejection were specious: first, that she was representing Al-Nashiri in the commission case and another case; and second, that she was a pro bono attorney. Mizer accordingly asks Pohl to hold an evidentiary hearing, and to examine whether the clearance slowdown was arbitrary or capricious---and to order a delay in the case pending the granting of access to Hollander.

CDR Andrea Lockhart rises for the prosecution, and seeks to correct some of Mizer’s facts.  One has to do with the real problem here: it’s that Hollander hasn’t had a full briefing needed both to handle classified discovery and to meet with Al-Nashiri.  The defense never requested that fuller briefing, says Lockhart---seemingly implying fault, given Hollander’s longtime involvement in the case.  At the same time, the prosecutor goes on, the defense has sought Hollander’s appointment as an expert.  Well, its either expert or defense lawyer:  the defense can’t have it both ways.  At any rate, the Egan case makes clear that judges shouldn’t be in the business of reviewing executive branch clearance decisions.  Here, the usual security process was followed, Lockhart argues, and that ought to end the matter.

Rising in reply, Mizer explains his side’s “expert versus prosecutor stance:” this too has to do with the commission’s ruling regarding Capt. Jackson and defense team attendance. Until Judge Pohl clarified that all defense counsel need not attend all court meetings, Mizer’s crew couldn’t be certain about how to proceed with respect to Hollander.  After a pause, Mizer urges the court to conduct an evidentiary hearing into Hollander’s read-on denial.  The idea, he explains, would be to explore the facts and circumstances---which, Mizer reiterates, seem suspicious: one investigator found Hollander to pose no security threat at all; and then strangely, afterwards, the defense received a seemingly doctored denial form, which itself rejected Hollander for transparently illegitimate reasons.   So will we have a hearing?  Maybe.  A ruling on whether the commission has authority to inquire into Hollander’s clearance status will be issued in due course.

Our final lawyer-ish item: AE216, a defense motion asking Judge Pohl to inquire into the legal status of the Chief Prosecutor.  Here, Kammen observes that the latest defense authorization bill has made the Chief Prosecutor and Chief Defense Counsel equal in rank---absent waivers.  Well, the defense received a copy of the Chief Prosecutor's waiver on Monday, Kammen explains.  This apparently disposes of AE216.  (Lockhart then complains about the spate of defense “emergency” briefs, and the shortening of briefing schedules. Her side is getting sandbagged, she seems to say.)

Some more odds and ends follow, about what’s fully briefed and what isn’t.  And then we move to the the substance.