Military Commissions

June 13 Session #5: Final Words on Spiral Notebooks, and A Postponement

By Wells Bennett
Thursday, June 13, 2013, 5:43 PM

Recess is done.  Does Richard Kammen want to be heard further on monitoring?  You bet he does.

What we’ve seen here is “plausible deniability,” Kammen says.  Nobody ever tells anybody what’s going on: everyone forgets to, Welsh, Bogdan’s subordinates, and so forth.  Here’s what we want, monitoring-wise.  The defense seeks a specific order to the relevant officials that they are not to monitor attorney-client communications.  But there’s more: the defense wants to be able to check to ensure compliance.  Nothing formal, just the ability to inspect, say, during a lawyer-client visit to Echo II.  As always, the military judge doesn’t want to monitor detention operations closely.  And guess what: CDR Lockhart objects to an order that proscribes an activity that isn’t even taking place.  And there’s a lot besides monitoring that isn’t happening at GTMO.  It’s a bad policy, your honor.  She urges the motion’s denial.  As for compliance, she’s loath to have defense counsel poking around places other than those rooms in which they meet with clients.  Kammen rises in reply, to emphasize that room inspection won’t happen without a court order.

What about notebooks?  Not too much further there from the defense lawyer.  He intones:  You feel some obligation to defer to the camp, Kammen addresses the military judge.  Isn’t that the law, asks the court.  Sure, there’s a presumption in its favor, answers Kammen, one that disappears when---as here---the camp rule is irrational.  He adds that his and his team’s integrity is beyond reproach.  That’s what makes this so offensive.  Kammen then moves to predictability: we need some stability in this regime.  And---to address the court’s prior concern---you have the authority to order the relief we seek.  And we think you should.

Ruge rises and adds two cents for the prosecution.  They both concern case law---which turns on a violation of the defense’s rights, and the reasonableness of security policy.  And offensiveness?  This cuts both ways, in the prosecutor’s view.  What about the security of camp personnel?  That weighty responsibility belongs to Bogdan, and supports denying the defense’s motion.  Kammen reiterates that his team has, and always will, comply with safety policies.  But when those are unreasonable, then they’ll seek relief from the court.

Next up is AE153.  That’s the defense’s motion to postpone the August, September, and October hearings, in light of conflicts.  The matter was first raised in an 802 conference last October, Kammen notes---no argument about late timing here.  The conflict is a homicide trial beginning on August 5, in Indiana; that case’s third.  The past two trials have occupied roughly ninety days.  Thus Kammen’s request for a three-month delay in the schedule.

Prosecutors don’t want to go along with Kammen’s request; so says Andrea Lockhart.  Kammen took on his representation in the Indiana matter only after agreeing to represent Al-Nashiri.  This is a death case, as the defense so often emphasizes.  But, Lockhart says, the other matter is not, and Kammen hasn’t sought a continuance there.  The court is visibly skeptical, given the evident alternative: Kammen obviously will have to seek a continuance in the Indiana case at some stage.  Perhaps sensing the skepticism, Lockhart describes her fallback position, namely a postponement of August proceedings and tailored adjustments to the other hearings’ schedules.  Relatedly, she underscores the necessity of deadlines to the forward progress in Al-Nashiri’s case.  So if you’re going to postpone, only do so with the addition of some hard do-by dates.  Worst case, for her, is a broad continuance with no scheduling or deadlines put in place.

Kammen rises and is offended: when he undertook to defend Al-Nashiri, in 2008, the matter was suspended by the Obama administration.  So no delay can be attributed to him, much less to any scheduling mishaps.  In any event, the lawyer says his Indiana matter is the only one likely to pose a scheduling conflict such as this, and adds that the August 5 trial is firmly set by the judge.

Judge Pohl: I’m granting your motion, Mr. Kammen, as to the August session only.  As for the other two hearings, the September date and October dates likely will remain, subject to further tweaking which is apparently yet to come.

And now for some secret things. The court makes several findings as to AE92, a classified motion. (Rule 505(h) sessions were held as to that motion earlier this week.)  It will be necessary, Judge Pohl declares, to exclude Al-Nashiri from hearing on that motion, for national security reasons.  But, he cautions, there is no blanket ruling here about Al-Nashiri’s rights, so far as they are implicated by AE142.  The court here notes in particular that Al-Nashiri himself is not the source of the classified material at issue in AE92.  The upshot: excluded now may not mean “always excluded.”  But we’ll have to wait for a decision on AE142, to see when, if ever, the accused might be allowed at a classified discussion.

Kammen objects to Al-Nashiri’s exclusion, and conveys his client’s strong protests as well.  He doesn’t want to be excluded from any proceeding that could be used to kill him.  Such procedure violates all manner of international and domestic law sources, which Kammen ticks off.  Prosecutor Johanna Baltes naturally sees things a different way.  The defense’s reading of the classified information rules is simply wrong.  And the commission’s decision, just now, is entirely consistent with federal and military law.  And it turns out we won’t hear from Al-Nashiri after all: the court denies Kammen’s request to have his client offer input on the record.

And thus the day comes to a close.  We’re in recess.  [UPDATE 8:23 p.m.: tomorrow's session will be entirely closed, a development that will bring our coverage of the week's hearing to an end.]