Terrorism Trials: Military Commissions

8/6 Motions Hearing #1: Tu Quoque

By Zoe Bedell
Thursday, August 7, 2014, 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 G regarding their discussions the previous evening, about the chance that Al-Nashiri would not attend today’s proceedings. Chief Prosecutor Brig. Gen. Mark Martins quickly objects to the questions, stating that the point of this testimony is to prevent Judge Spath from having to take an in-court waiver, and that if the defense wants to have an extensive cross-examination, they can bring Al-Nashiri in. When Judge Spath questions the point of the testimony, Kammen states that he wants to establish that his earlier representations are true, since “this is a trust-free zone and a trust-free courtroom.” Kammen reiterates that the hearing is pointless because they have stipulated that the waiver was voluntary, but if the prosecution refuses to accept his representations, then he should have the opportunity to let the commission know his representations are true.

Judge Spath says he accepts Kammen’s representations and that he is willing to reconsider Judge Pohl’s order requiring testimony as to a voluntary waiver. Seeking to nip that possibility in the bud, BG Martins stands to argue for maintaining the procedure in order to avoid the chance that the presence or absence of the accused becomes an issue after trial. Judge Spath ultimately allows Kammen to proceed; the voluntariness discussion then wraps up quickly.

Judge Spath then moves on to some housekeeping matters. First, he grants AE279, the defense’s motion to compel funding for an additional 175 hours for a cultural consultant, Mr. Assed. He then finds that for AE284, some discovery information the defense had referenced in AE284D, is relevant and material. For AE284C, Judge Spath grants the motion to close the hearing in accordance with MCRE 505(h) and RMC 806. The parties accordingly will argue the unclassified portion of AE284--- a bid to arrange a Skype call between Al-Nashiri and his parents---in open court, and then proceed to a closed hearing for the remainder.

Judge Spath then turns briefly to the motion to recuse, which he is still in the process of writing. He states that at this point, there have been no additional relevant filings in the Witt appeal---in which he served as prosecutor, and in which Al-Nashiri attorney CDR Brian Mizer now plays a role on appeal---and he then forbids the parties to submit any new filings from that case to him from here on out. This is to avoid him having to see, and form opinions on, any new developments in Witt. While he states there is no concern any filings could affect his impartiality in Al-Nashiri's case, he's keen to taken added measures in the abundance of caution.

Judge Spath then moves on to our big event for the morning: defense motions AE287 through AE292, to dismiss based on tu quoque---an estoppel-like doctrine.  In short, the idea is that war crimes prosecution is off the table, if the prosecuting power engages in precisely the conduct which it seeks to hold criminal.

Before arguments begin in earnest, prosecutor Justin Sher airs the government’s objections to the introduction of the defense’s video (showing the OSS depiction of a plan to disguise US Naval vessels as fishing boats) on two grounds. First Sher argues that the video is not relevant because it simply shows the government “testing and considering a plan,” without evidence that the plan in fact was ever implemented. The prosecutor then challenges the video’s authenticity, noting that it hails from a website with no association with the government, that it is not self-authenticating, and that there is no way to know if it has been modified or edited.  "Just because it is on the Internet doesn’t make it true," he says.

Capt. Daphne Jackson rises for the defense, insisting that the United States is engaged in hypocrisy of the highest order. It now wants to criminalize conduct that is not a war crime under international or domestic law, a fact which the video establishes by showing the United States itself engaged in disguise operations akin to those in which Al-Nashiri allegedly engaged. The defense attorney casts her client in a better moral light to boot, observing that Al-Nashiri’s underlying conduct is not actually perfidious because any deceptions he engaged in were not unlawful, and moreover, that his conduct constituted “acceptable ruses.” According to Jackson, the acts of concealing hostile intent, failing to wear a uniform, or failing to carry a weapon openly do not constitute unlawful deception, and the government is conflating acts that cause a belligerent to lose his protected status with acts that are actually criminal. She does acknowledge that both sides agree that feigning civilian status falls into a different category, but limits that crime to wearing protected emblems, waving a white flag, or hiding in a crowd of civilians.

Jackson cites two historical examples of parties concealing hostile intent, thus demonstrating that it is not a crime, but accepted practice. The Chinese Navy made use of a concealed warship, retrofitted to look like a fishing vessel, during a skirmish with the Vietnamese Navy; then there's our previously discussed video, depicting the US Navy’s plan to use concealed warships in naval operations. (It appears from the transcript that the court watches the video at this point.)

A little skepticism from the bench: without conceding that the doctrine applies, Judge Spath tries to determine how the US government could be considered to have acted in a “comparable capacity,” particularly if Al-Nashiri was an unprivileged belligerent. Though Jackson briefly argues that the USS Cole was a lawful war target, she quickly moves on and argues that tu quoque does not require a showing that the two sides engaged in identical conduct.  Instead the doctrine is raised here in order to demonstrate “what are war crimes that are firmly rooted in international law.” Jackson cites Kupreškić (ICTY) and Dönitz (Nuremberg) to support this interpretation and ultimately states that tu quoque must be an absolute bar to prosecution because the underlying conduct not only isn’t a war crime, but is the actual practice of the US.

Sher’s turn again. He focuses on the comparable capacity line of reasoning, arguing that Al-Nashiri is an unprivileged enemy belligerent and is thus not the same as a United States sailor. He states that other tribunals “have rejected the [tu quoque] theory outright because one’s moral culpability . . . is not contingent on the acts of another,” and dismisses the entire doctrine as inconsistent with the “obligation” of humanitarian law “to uphold the key tenets of the law regardless of the conduct of enemy combatants.”

After Jackson quickly reiterates her points, the court concludes arguments on this subject and takes a recess.