Terrorism Trials: Military Commissions

Procedural Orders in Al-Nashiri

By Wells Bennett
Tuesday, December 11, 2012, 11:56 AM

Last week, Judge James Pohl handed down five orders in the military commission case of United States v. Al-Nashiri---the capital case arising from, among other things, the attack on the USS Cole.  

The rulings concern mostly minor issues of procedure and evidence.  Two of them (AE 112c and 113b) conclude, respectively, that the defense's motions to "end presumptive classification" and to compel the disclosure of government security protocols are moot, in light of the government's recent amendments to its proposed order to protect national security information.  (The court has yet to adopt or to modify the amended proposal.) In two other orders (AE 130b and 123b) the court resolves the defense's motions to compel the production of the Government's Victim-Witness Assistance Program director; and to compel the production of a witness whom Al-Nashiri's lawyers wish to appoint as a defense victim liason.  In short, Judge Pohl  grants the former but denies the latter.

The fifth order (AE99f) is perhaps the most significant---though it treads no new ground.  In keeping with his approach during the last commission session (and with that employed in the 9/11 case), Judge Pohl concludes that Al-Nashiri holds a right to absent himself from pretrial sessions, provided he makes a legally sufficient waiver:

c. The procedural rules concerning an accused's presence at a session of the Commission make it clear an accused may waive the right to be present, and a Commission proceeding may
continue in the absence of the accused following a military judge's determination the accused knowingly, intelligently, and voluntarily has waived the right to be present.
d. It is apparent Congress, when it passed the M.C.A. 2009, and DoD, when it wrote the M.M.C., knew that the accused in these cases are in a detained status and are under the control of
the Government outside the courtroom. In this regard, the clear statutory language that the right accrues to the accused is more authoritative than the jumbled text of the M.M.C.
e. The Commission advised the accused in this case of his right to be present at all sessions and of his option to waive voluntarily his right to be present at certain sessions. The
accused, with advice of counsel, understands his right to be present and his option, under certain circumstances, to voluntarily waive the right.