Terrorism Trials: Military Commissions

Al-Nashiri Arraignment Coverage: Voir Dire and Arraignment

By Keith Gerver
Friday, November 11, 2011, 10:27 PM

Wednesday’s arraignment hearing of Abd al-Rahim al-Nashiri began about twenty minutes after 9 a.m., roughly two hours after most reporters arrived at the Ft. Meade, Maryland remote viewing location.  Before jumping into the details of the hearing, I want to note that attendance was surprisingly high at the Ft. Meade base theater.  Naturally, such attendance was mostly made up of reporters and Department of Defense employees. But the Office of the Secretary Defense Public Affairs Office representative on hand, Mr. David Oten, informed reporters later in the day that one Ph.D. student had contacted him about remotely attending the hearing and did, in fact, attend–this notwithstanding some reported claims that no members of the general public were in attendance. It is my understanding, in fact, that a few other members of the general public were in attendance as well. Given that they would not have learned of the event until the day before it took place—and Ft. Meade’s relatively isolated location—that even a few made the trip is encouraging. For future remote viewings, Ft. McNair might serve as a better site.

The hearing itself begins with Assistant Trial Counsel Commander Andrea Lockhart noting that the charges against al-Nashiri are capital in nature and that the Convening Authority has referred the charges to the commission for trial.  She identifies the various individuals present who have been detailed to the commission proceeding, including Military Judge Pohl, the members of the trial and defense counsel teams, the two court reporters, and the court security officer.  Judge Pohl then asks all members of the trial team representing the government to identify themselves, state by whom they were detailed to the commission, and their qualifications.  Commander Lockhart speaks first, followed by lead trial counsel, Mr. Anthony Mattivi of the Department of Justice, and then by Mr. Justin Sher of the Department of Defense.

Military Judge Pohl then states that—before discussing other preliminary matters—it is necessary to inquire into the accused’s need for a translator.  Pohl asks al-Nashiri, who is present and sitting next to his three defense counsel, if he speaks and understands English.  Al-Nashiri responds, in Arabic, that he cannot speak English.  Pohl asks if he needs a translator.  Al-Nashiri, smiling, responds in English, saying “Of course, yes.”  At this remark, the reporters and others attending the remote viewing laugh.  Pohl asks him what language speaks.  Al-Nashiri, again with a smile, says, in Arabic, “Arabic.”  Pohl inquires into whether al-Nashiri has a translator; al-Nashiri says yes.

Pohl next informs al-Nashiri of his counsel rights and names each member of his defense counsel team.  Al-Nashiri responds that he understands.  As Pohl asks more specific questions (for example, whether al-Nashiri understands that he may obtain military counsel of his choice), al-Nashiri appears relaxed, almost as if he is enjoying the experience.  When Pohl completes the line of questioning related to al-Nashiri’s counsel rights, he asks whether al-Nashiri  has any questions.  Al-Nashiri responds, “No, not exactly.  Not at present.”  Pohl then asks if al-Nashiri would like other counsel.  Al-Nashiri replies, in English,  “Hold on one minute.”  Richard Kammen, al-Nashiri’s learned defense counsel, responds that this issue would be raised at a later time.  Pohl, however, wants an answer now.  Al-Nashiri responds that “At this moment,” these lawyers are “doing the right job” and that, “in the future, Mr. Rick [Kammen]” will discuss the issue.  Pohl then states that when they meet again, al-Nashiri and his defense counsel will tell him.  Pohl then requests that al-Nashiri designate his lead defense counsel; al-Nashiri responds, “Mr. Rick.”  Pohl says, “Mr. Richard Kammen, I got it.”  Al-Nashiri then says, in Arabic, that he “does not pronounce names perfectly.”  Pohl responds, with a bit of smile, “Neither do I.”

At this point, al-Nashiri’s defense team identify themselves and provide their credentials.  Kammen, as learned defense counsel, also states his qualifications in death penalty cases.  He notes that he has appeared before the Sixth, Seventh, and Ninth Circuits, as well as the United States Supreme Court, and has appeared in federal court on 30 or more occasions as learned defense counsel in death penalty cases.  He notes that he has been involved in the American Civil Liberties Union’s John Adams Project.  Kammen adds that he is currently on contract with the Convening Authority and is paid by him.

Pohl then asks if Kammen believes he has a conflict because he is paid by the Department of Defense.  Kammen says that he does not and that he is normally paid by the government in capital cases.  Pohl then swears in Kammen.

Al-Nashiri’s Right to Conflict-Free Counsel

Pohl next states that an issue arose in the previous 802 hearing that goes to the right to counsel.  He asks assistant defense counsel Michael Paradis whether he is also representing [Ali Hamza Ahmad Suliman] al-Bahlul in his appeal from his conviction before a military commission.  Paradis says that he is.  Pohl then notes that al-Bahlul is a named co-conspirator in this case, specifically charge V [violation of 10 U.S.C. 950t(29), Conspiracy].  Pohl notes that he would normally simply ask the accused whether he would like to waive this conflict, but states that it is his understanding that defense counsel wants to address the question of whether the conflict even exists.

Kammen states that he believes the concern is misplaced or at the very least, immature.  He notes that prior to detailing Paradis, the Office of Chief Defense Counsel thoroughly investigated whether a conflict exists.  Pohl then interrupts, asking “Isn’t the issue not necessarily what others think, but what the accused thinks?”  He expounds, saying that Kammen is basically telling him that the defense has done a factual inquiry of the two cases and does not see a conflict.  Kammen says this is correct.  Pohl, however, says that there is a conflict on the face of the charging document and that the only person who can waive that conflict is the accused.  Kammen agrees, if there is a conflict.  Pohl asks how a conflict couldn’t exist given the document itself.  Kammen cites Cuyler v. Sullivan, a U.S. Supreme Court case, as standing for the proposition that the inquiry is premature if the only connection is that the two people are listed on the charging document.

Kammen then turns to a second issue.  He notes that the conflict issue was not raised under the normal procedure used to raise conflict issues in a federal district court.  Kammen states that it was raised through informal channels.  He explains that the government must file a motion and allege a conflict with specificity.

Pohl states that this is absolutely correct.  He says that he himself was only aware because of an offhand remark made at the 802 conference.  He states that one or both sides should have raised the conflict issue.  He then says, “But we’re here” and that he understands there might not be a factual conflict involved.  Pohl then asks if there is anything that would prevent the government from bringing this charge [I presume Count V] against al-Bahlul.  Paradis responds, saying that it depends on how broadly this conspiracy is defined.  Pohl comes back, asking if al-Bahlul is in jeopardy and whether this charge was brought during al-Bahlul’s trial before commission.  Paradis states that he does not believe al-Bahlul is in jeopardy, but notes the breadth of the conspiracy charge against al-Bahlul.  Kammen then enters al-Bahlul’s charge sheet into the record.

Pohl says that he sees two issues.  First, al-Bahlul, under a current life sentence, could offer to cooperate in this case to obtain a lighter sentence.  Kammen says that is correct.  Second, al-Bahlul could pass confidential information to Paradis that could go to al-Nashiri.  Kammen says that he understands the concern, but does not want to use the word “conflict,” because he says it is a technical term.  Pohl then asks if Kammen believes it is Pohl’s responsibility, at a minimum, to bring this up with al-Nashiri.  Kammen says that Pohl should ask al-Nashiri whether he understands the potential for a conflict.  Kammen once again reiterates the “unorthodox” way in which this issue was raised.  Pohl agrees, saying that it was “irregular.”

Pohl then asks if trial counsel would like to be heard on this issue.  Anthony Mattivi approaches the podium.  He notes that he cannot verify whether the al-Bahlul charge sheet provided by the defense is the one that had been referred; he reserves his right to object until he sees both.  Mattivi then notes that if trial counsel made a mistake in raising the conflict issue, it was in trying to raise it informally.  He requests that the court make an inquiry, obtain a result, and then decide what to do at that point.

Pohl then turns to al-Nashiri and asks if he knows about the conflict.  Al-Nashiri replies, in English, “Yes.”  Pohl follows-up, asking if he knows that al-Bahlul is a co-conspirator.  Al-Nashiri says, in English, “One minute” and he confers with his counsel.   He then says “Yes.”  Pohl states that if there is something al-Nashiri does not understand, he should take his time.  Al-Nashiri responds, in Arabic, that he understands, but there are times when he needs to speak to his counsel.  Pohl then describes how there is a potential appearance that Paradis might have divided loyalty.  He asks if al-Nashiri understands.  Al-Nashiri states that he understands that there is another case and that he has no problem with that.  Pohl follows-up, asking if al-Nashiri understands that a lawyer normally shouldn’t represent more than one client arising out of the same incident and that he must consent to such a situation.  Al-Nashiri says yes.  Pohl asks if al-Nashiri has discussed the matter with his counsel.  Al-Nashiri responds that he has.  Pohl once again highlights the divided loyalty problem.  Al-Nashiri says that he understands very well and then confers with his lawyers.  Pohl then informs al-Nashiri that he is entitled to a conflict-free lawyer; al-Nashiri replies, “I understand.”  Pohl asks al-Nashiri if he understands his right.  Al-Nashiri confers with his lawyers, says “I’m sorry,” in English, to Military Judge Pohl, and then says in Arabic, that he understands.  Pohl then asks if al-Nashiri has made his own personal decision to keep his counsel, Paradis.  Al-Nashiri says yes.  Pohl then announces that al-Nashiri has waived his right to conflict-free counsel.

Voir Dire of Military Judge Pohl

At this point, Military Judge Pohl states that he is unaware of any grounds to challenge him, but asks if either party wishes to do so or to question him.  Lockhart states that trial counsel does not; Kammen says that he has some questions.

First, Kammen states that al-Nashiri would like to know if Pohl can outline the materials he has read that relate to al-Nashiri’s case.  Before Pohl answers, the court reporter experiences a technical problem.  Pohl orders a recess in place for five minutes.

After Pohl calls the commission back to order, Kammen repeats his question.  Pohl begins by noting that he was the original trial judge when charges against al-Nashiri were first referred in 2008.  He adds that other than the incident [involving the USS Cole] itself, his only knowledge is based on the pleadings.  Indeed, he notes that he was unaware of any connection between al-Nashiri and the attempting bombing of the USS The Sullivans or the bombing of the French tanker, MV Limburg, prior to reading the pleadings.  He notes that in the first iteration of the case (that is, in 2008), he only had the charge sheet.

Kammen then states that al-Nashiri would like to know if Pohl thinks he is guilty.  Pohl responds, almost reflexively, no, and that he presumes al-Nashiri is innocent until proven guilty.  Kammen presses, saying “I understand,” almost as if he believes that Pohl is giving a canned answer.  Pohl, however, reiterates that al-Nashiri is presumed innocent and that “of course” he does not think he is guilty.

Kammen then asks if Pohl has ever engaged the Convening Authority in conversation.  Pohl states that he does not even know what the Convening Authority looks like and has never spoken to him.  Kammen asks if Pohl has had any communications with the prosecution, including General Martins, outside of the courtroom.  Pohl replies that he has had no ex parte communications regarding this case with any individual.

Kammen’s next asks what Pohl sees his role to be.  Pohl states that he is there to ensure a fair trial.  Kammen asks if Pohl sees any difference given the military commission context.  Interestingly, Pohl notes that the only difference might be because of “gaps” that may not exist in a more developed system, mentioning how this is a hybrid between the Article III system and the military justice system.  He notes that it is a unique system, but judges are called upon to make tough calls.

Kammen picks up on the “gaps” comment and asks Pohl what his philosophy would be when he makes calls to fill those gaps.  Pohl states that he would not speculate, but, with the assistance of counsel, he would look at the applicable precedents, engage in analogy, and then make a professional judgment.  He makes clear at this point that he is not saying that there are gaps in the system, but rather that it is unique.

Kammen then turns to the issue of the death penalty and asks Pohl how he feels about it.  Pohl, somewhat sharply, responds “What difference does it make?’  Kammen states that it might influence his legal rulings.  Pohl responds with his own question, asking whether his views on the death penalty could be a basis for a challenge or disqualification.  Before Kammen can responds, Pohl states that he will not let his personal opinion in.  He will apply the law and follow it to the best of his professional ability.  Kammen then asks Pohl where he falls on a scale of 1 to 7, with 1 being opposition to the death penalty, and 7 being of the view that the death penalty should be imposed in any case of intentional murder.  Pohl responds that 7 is not in accordance with the law and so he is not a 7.  He then states that he will not answer any more questions related to the death penalty.

Kammen asks if Pohl has any feelings on delay in a death penalty case.  Pohl says he has no feelings on delay.

Kammen then states that we do not yet know the evidence in this case, as there has been no discovery.  He asks Pohl to assume the worst case conviction; assume that al-Nashiri had a role in the Embassy bombing and that he is a member of al-Qaeda.  Could a death sentence be anything but fair?  Pohl responds that sentencing is to be done by the panel members, not him.  He adds that his personal views are a) irrelevant and b) he is not the sentencing authority.

Kammen turns to the issue of mitigation and notes that Pohl will have a role in deciding that question.  He asks Pohl, “What does the term mitigation mean to you?” and what his view of the law is in that area.  Pohl responds frankly that this question is getting ahead of his research for the case.  He states that the defense will present any evidence it labels as mitigating; opposing counsel will raise any objections if they have any.  Pohl notes that the commission will come to this issue later.

Kammen then takes up the torture issue.  He asks Pohl, “What does torture mean to you?’  Pohl responds that it will be defined as in statutes and regulations.  Kammen responds, “Which statute?”  Pohl, tersely, says “The ones you tell me to apply.”  Kammen asks if Pohl believes al-Nashiri was tortured, would he consider that mitigating evidence that would justify a sentence less than death?  Pohl asks Kammen if he believes it is mitigating.  Kammen says that he does.  Pohl then says that Kammen should introduce that evidence as mitigating evidence.  Kammen next discusses the non-prosecution of high officials, lawyers, doctors, and psychiatrists for torture. He asks if Pohl believes their non-prosecution or lack of punishment could constitute mitigating evidence.  Pohl says he would give the same answer as before.

Kammen then changes gears slightly and notes that under the Convention Against Torture, if an individual learns that someone has engaged in torture, there is a duty to refer those allegations to the appropriate authorities for prosecution.  He asks Pohl how he feels about that responsibility.  Pohl state that he does not give advisory opinions.  Kammen asks if Pohl has any thought as to who would be the appropriate authorities.  Pohl says “No,” then clarifies that the “no” was a response to whether he has given the issue any thought.  Kammen follows-up, asking how Pohl feels about his duty to report allegations to appropriate international bodies if he does not believe U.S. authorities would respond to their obligations under the treaty.  Pohl says he has no thoughts on the matter.

Kammen asks if Pohl believes the United States, by having engaged in torture, has lost the moral authority to impose the death penalty.  Pohl states that he will not give his personal opinion.

Kammen then discusses the likelihood that this case will involve “less traditional” forms of evidence, such as circumstantial evidence.  Pohl objects to the characterization of circumstantial evidence as “less traditional” and notes that he must simply determine if the prosecution meets it burden in introducing evidence.  Kammen clarifies a bit and focuses on the “hearsay within hearsay within hearsay” problem and how it could be used in this death penalty case.  Pohl responds that if the evidence is admissible, then it is admissible.  He will follow the rules.  He states that if multi-level hearsay is permitted, then he will permit it.  He notes that he “gets” that he may have to engage in a 403 balancing in some situations.

Kammen then asks Pohl how he sees his responsibility if the rules, as applied, produce an unreliable result.  Pohl states that this is a value judgment and personal opinion.  He explains that he will not impose his beliefs, but rather his judgment.

Kammen turns to Pohl’s role in ensuring a neutral jury.  Pohl sees the voir dire process as the means to ensure a neutral jury.  Kammen then asks if he is correct in stating that in a traditional court-martial, there can be a guilty verdict based on a 2/3 vote of the panel members.  Pohl states that is correct, but does not understand how it is relevant.  Kammen explains that this was very important to al-Nashiri.  Pohl states that in a typical court martial, if there is less than 2/3, then there is an acquittal.  Kammen says that al-Nashiri wants to know why it is different in this case.  Pohl states that it is different because this is a death penalty case and “the numbers are different.”

With that question, Kammen concludes.  Pohl asks if Kammen wishes to make a challenge.  Kammen responds that he does not.

Safeguarding Classified Information

Pohl then asks trial and defense counsel whether they understand their duties to safeguard classified information.  Both sides reply that they do.

802 Conference Issues

Pohl states that he would like to address two issues that arose in the earlier 802 conference before getting to the arraignment.  The first was a security issue involving physical restraints.  He notes that the defense did not want al-Nashiri to be physically restrained during the proceeding.  The defense responds that this was correct.  Pohl notes for the record that al-Nashiri is not currently restrained.  Pohl states that this may continue until there is a change.

Pohl then addresses al-Nashiri, noting that he is wearing a prison uniform.  Al-Nashiri responds “Yes.”  Pohl asks if al-Nashiri understands that he may wear civilian clothes.  Al-Nashiri says yes.  Pohl then states that some may view his wearing a prison uniform negatively.   Al-Nashiri says that he intends to wear his prison uniform.

Pohl then turns to the second 802 conference issue, which involved protective orders.  He states that the government had asked for two protective orders.  He notes that the government had asked him to sign the orders prior to arraignment but that the defense objected to the orders.  Pohl would like to hear the government’s response to the objection before he gives his order.  He notes that, because the orders are not signed, the government does not believe it can make its section III disclosures of the accused’s statements prior to arraignment as required by rule.  Military Judge Pohl states that a “lot of statements” come up after arraignment and that he intends to finish the protective orders next week.  He intends to go ahead with the arraignment and asks if there is any objection to proceeding with arraignment with the understanding that the defense will receive the statements of the accused next week.  Kammen states that there is no objection.

Pohl then states that the “accused will now be arraigned.”  But, before the arraignment can begin, Kammen interjects, stating that there was one more issue discussed at the 802 hearing. Pohl asks if Kammen is referring to the issue related to the closed-circuit TV.  Kammen says no, he is referring to “the 505 issue.”  Pohl asks “which 505 issue?”  Kammen says that the defense filed notice because the government says that al-Nashiri’s statements are classified TS/SCI and that the Court has waived that in the courtroom.  Pohl says that they will jump to this issue after arraignment [Note: this issue was not addressed again during the hearing.]

As for the remote feed issue, Pohl notes that there were some concerns, but he reiterates that the order was for today and only today.  He reminds the parties that he said earlier that he does not give advisory opinions, but states that he is about to do so.  He says that he will probably approve future remote viewings but wants the government to provide the criteria that it will use to determine who may attend.  After he sees the procedure and obtains input from the defense, Pohl states that he will probably give blanket approval for all future proceedings.  Pohl makes clear that it is his view that anyone authorized to be in either location—Ft. Meade or Norfolk—should be able to sit in on remote viewings, space permitting.  He says that it was his concern that there was some kind of “DoD/PAO screening.” [Note, it is my understanding that there was no such screening for the general public—if an individual approached the Ft. Meade main gate, displayed a driver’s license, and informed security that he or she would like to attend the hearing, then that individual was permitted to proceed to the base theater.]

Al-Nashiri’s Arraignment

At this point, Military Judge Pohl states that the accused will be arraigned.  Commander Lockhart stands and describes the charges in general terms.  Pohl asks if the defense would like the charges to be read.  Kammen responds that the defense does not.  Pohl states that the reading of the charges may be omitted.  He tells defense counsel and al-Nashiri to rise and then asks al-Nashiri how he pleads, reminding him that any motions he has under Rule for Military Commissions 905(b) must be made prior to the entry of pleas.  He informs al-Nashiri that counsel will speak for him.  Kammen states that al-Nashiri reserves his pleas and motions.  Pohl grants the reservation of pleas and motions.

With that, the arraignment was concluded.  Three motions were also heard on Wednesday; they will be the subject of a later post.