Military Commissions

6/18 Session #1: That Was Fast

By Wells Bennett
Wednesday, June 18, 2014, 2:52 PM

It’s go time at the Expeditionary Legal Complex, Courtroom Two. After some shuffling of papers and adjusting of microphones, the military judge, Navy Capt. J. Kirk Waits, calls the initial hearing to order.

Civilian prosecutor Mikeal Clayton rises and ticks off various housekeeping points: the referral of charges per Guantanamo rules, the closed-circuit broadcast of the day’s events, the names of his colleagues, and so on. And he explains that, yes, this is military commission case against Hadi---who we see at the defense table alongside his attorneys.  Judge Waits is next in marching through some procedural stuff, like his own detailing to the case. Then comes the accused’s principal defense attorney, Army Lt. Col. Chris Callen, who says his client will continue to need in-court translation services.

Hadi is asked to confirm representation by his lawyers, Callen as well as Air Force Maj. Robert Stirk and Navy Reserves Chief Jennifer Bailey. The accused does so, but at the same time asks the court to appoint more folks---seven---in light of the “destructive” events ongoing in Iraq and Afghanistan, and in light of the departure of one or more attorneys from his crew in the near future.  Hadi apparently refers to Callen, whose military orders soon will expire; the court is apparently sympathetic, and inclined to bring more lawyers onto the defense team at some stage. On that issue, Callen tells Judge Waits that the Chief Defense Counsel is actively seeking a replacement lawyer.

There’s a battery of right-to-counsel questions now, each of which Hadi answers in the affirmative: does he understand that a detailed attorney will be provided free of charge? Does he understand that any additional, civilian attorneys cannot be subject to discipline prior to appointment? Does he desire to be represented by his detailed counsel? And so on like this, for some time---all followed by a “yes,” from the accused.

Now to challenges. The military judge thinks there’s no grounds to doubt his appointment. Do the parties have in any questions in this regard? The prosecution seemingly does not. But the defense does; Callen thus ever briefly inquires about, among other things, personal or professional interactions between the Convening Authority and the court.  There haven’t been any, per Judge Waits---he says he’s never met the Convening Authority. And, Waits tells Callen when asked, the military judge never met any victim killed in the 9/11 attacks, or in the Gulf wars or the war in Afghanistan, either.  So much for voir dire.  Neither side mounts a challenge to Judge Waits’ assignment to the case.

Soon we learn that yesterday and today, the parties and the court held Rule 802 conferences, and there discussed marching orders for today's arraignment and the case more broadly. Summarizing, Judge Waits trots through some of the logistical issues covered at the conferences---a possible litigating schedule, the volume of classified material in play and so on.  With his synopsis out of the way, the accused is now arraigned.

Clayton returns to the podium and announces the general nature of the charges: denying quarter, using treachery or perfidy and the attempt to use both, and conspiracy.  For its part, the defense waives a further reading of the charges---thus greatly streamlining the day’s events.

When asked, Hadi rises and, through counsel, reserves the entry of any plea.  (We’ll thus await an order setting the time for pleas and motions.)

Neither side has anything further; the arraignment hearing thus comes to a swift close.  That was fast.