Terrorism Trials & Investigations

Friday at the Military Commissions: Al Nashiri

By Matt Danzer
Sunday, March 1, 2015, 10:29 PM

Last Friday's sessions in the Al Nashiri military commission case were quick. The first came quite early in the morning to resolve an outstanding issue from Thursday's closed session: whether the defense can interview Navy TJAG Nanette DeRenzi for purposes of the defense's pending unlawful influence motion. (The latter, recall, concerns a recent Defense Department order, that requires commission judges to reside at Guantanamo.)  The interview was scheduled for 9:30 AM, so the first session began at 8:30 AM.

Before arguments on interviewing DeRenzi, Judge Spath provided a brief recap of Thursday's closed session, in which he ordered that the defense be allowed to interview the two other service TJAGs in anticipation of testimony. The parties also agreed on the burden of proof for the unlawful influence motion: If the defense raises some evidence of unlawful influence, the burden will then shift to the government to disprove it beyond a reasonable doubt. The defense will be allowed to put on its case for unlawful influence until the government believes that the defense has shown "some evidence" or the defense has finished providing evidence.

The defense explained that the question is whether the convening authority has exerted unlawful influence on the TJAGs through the Deputy Secretary of Defense. If this is the case, there is also a due process problem because the judges have essentially been isolated. In response, the prosecution clarified that in contrast to the Army and Air Force TJAGs, DeRenzi "has not done or said anything that may affect this commission." Whereas Army TJAG Flora Darpino communicated by email with the convening authority and Air Force TJAG Christopher Burne is Judge Spath's supervisor, any potential unlawful influence by DeRenzi is "hypothetical" and "prospective" and so she is not relevant or necessary for an unlawful influence determination.

Judge Spath pointed out that Change 1 could have impacted the pool of detailed commission judges from all the services and the TJAGs have probably spoken to one another about Change 1. He also expressed some incredulity that the government would object to allowing the defense to interview DeRenzi, saying, "I just don't understand why we're not making an effort to dispel every part of the appearance of unlawful influence on the judiciary in a case that is garnering more and more attention." The judge further questioned why the government has not conceded that the defense has shown some evidence of unlawful influence.

In a final effort to avoid an interview of DeRenzi, the government argued that if she is not yet relevant, the military commissions rules give no reason why the defense should be allowed to interview her. Judge Spath shut this argument down, however, explaining that "sometimes we have got to let common sense help us interpret those rules." With that, he ordered that the defense be allowed to interview DeRenzi to for potential testimony.

When the commission returned from the recess, Judge Spath explained that the Deputy Secretary of Defense had rescinded Change 1. The two questions then are whether the unlawful influence motion is moot and, if not, whether the commission still needs witness testimony from the TJAGs. The defense argued that the issue is not moot and the commission should send a "clear signal" that this action was unlawful influence in anticipation of potential Change 2, 3, 4, or 10. Even if it was not actual unlawful influence, there is also the concern that Change 1 was "a shot across the bow" of the commissions and creates the "appearance of unlawful influence." The defense also noted that DeRenzi would testify that she was going to go along with Change 1 before it was rescinded, which goes to the defense's due process argument. The government explained that the facts underlying the unlawful influence motion are gone and so the issue is moot. Further, the TJAGs in interviews indicated that they had not yet determined how they would respond to Change 1, so there is no point in having them testify.

Judge Spath decided that he did not need the TJAGs to testify given what he knows about their thinking from Vaugh Ary's testimony, Darpino's email, and accounts from the defense and prosecution of comments from the TJAG interviews. However, the unlawful influence motion is not moot and the defense has carried its burden of "some evidence of unlawful influence." Judge Spath recessed the commission with the intention of resuming in the afternoon either to hear the government's evidence or, if the government has no additional evidence, then the beginning of arguments on the motion. (As of this posting, the concluding transcripts for Friday afternoon were not available.)