With no more conflict motions for today, the Special Review Team swaps out and the normal prosecutors come back. The court begins with AE 299, a motion by Mustafa al-Hawsawi's defense team seeking to sever his case from the rest of the accused so that his case can proceed while the others deal with the many conflict issues.
CDR Walter Ruiz, representing Al-Hawsawi, explains that his team is ready to proceed, especially given some pressing issues in Al-Hawsawi's case and the number of thorny issues left to be resolved for the other four accused—the conflicts of interest motions partially addressed in the earlier session, which Al-Hawsawi has not joined, plus a number of motions regarding Binalshibh. Key among the matters that the court must resolve quickly in Al-Hawsawi's case: the conditions of his confinement, which Ruiz describes as "violative of international conditions of law and humanitarian standards." A separate trial also avoids problems of "guilt by association" and is "the best vehicle for him having a fair and a just verdict based on the honest and sincere assessment of facts as they relate to him." He also rejects the prosecution's focus on joint trial precedents from the federal judicial system, distinguishing that system, with its preference for joint trials and efficient administration of hundreds of cases, from Guantanamo's military commissions---which are organized to handle a limited universe of trials. In support, Ruiz points to the commissions' rules, which warn against procedurally complicated joint trials in Rule 602(e)(3) and allow for severance where there is prejudice and good cause shown under Rule 906(b)(8). He also says that the Supreme Court's joint trial jurisprudence in Zafiro v. United States favors judicial discretion in severance decisions, directing courts to focus on the complexity of the case, degrees of culpability, and the facts. Finally, preempting questions about why the defense team has not filed a demand for a speedy trial, Ruiz points to case law saying that a motion for severance acts as notification to the court "that we no longer acquiesce to sustained and long pretrial litigation delays that are unrelated" to Al-Hawsawi's case.
After the defense's lengthy presentation, Brig. Gen. Mark Martins rises for the prosecution and begins by laying out the legal standard for severance created in the Zafiro case that Ruiz mentioned: Severance is appropriate where (1) the defendants were properly joined and (2) "there is a serious risk that a joint trial would compromise a specific right of one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence." Why should the commission care what Zafiro says when that case was based on the federal rules, and not military commission rules? Because the court-martial rules are based on the federal rules and actually refer to the rules applied in Zafiro. Nor is Zafiro a simple command for judicial discretion; the majority opinion in that case suggests a "strong preference" for the relevant considerations. Applying those factors, Martins says that the defendants were properly joined under Rules 601(e)(3) and 906(b)(8) of the military commission; that the right to a speedy trial cannot be violated if Al-Hawsawi has not independently sought to vindicate that right; and that the court can alleviate the risk of prejudicial spillover from proof marshaled against the other defendants through a number of mechanisms less radical than severance.
Turning to rebuttal, Ruiz rejects the prosecution's characterization of the delay as a result of the defense's conduct. Al-Hawsawi "is decidedly the co-accused on the sidelines in this case. There are a number of issues that the commission is working through that are not of his own doing and that have nothing to do with [his] conduct." After a brief exchange on the MOU issue that seems to keep cropping up, Judge Pohl pushes Ruiz to move on with his severance argument, which Ruiz does after some rather emphatic prompts from the court. He notes that the "specific right" violated in this instance is Al-Hawsawi's right to individualized justice and effective administration of justice. Al-Hawsawi is implicated in only some of the overt acts and conspiracy claims alleged in this case and so his case should be severed.
With the argument on severance completed, the court turns briefly to AE 283, a request by KSM lawyer Maj. Jason Wright for Judge Pohl to appoint him as a civilian attorney when Wright is released from active duty on August 26. Judge Pohl and the prosecution both wonder whether the commissions have the power to direct the convening authority to hire a civilian. Wright agrees to address arguments on this issue in a brief to the court and the commission recesses.