Case Coverage: Military Commissions

This Week at the Military Commissions, 11/3: Pretrial Proceedings Continue (Part I)

By Sarah Grant
Monday, November 13, 2017, 11:05 AM

Continuing with pretrial proceedings in United States v. al-Nashiri—which relates to the 2000 bombing of the USS Cole—military judge Col. Vance Spath called the commission to order Nov. 3 at 9:00 am. Defendant Abd al-Rahim al-Nashiri and his military judge advocate general, Navy Lt. Alaric Piette, were present for the defense. Defying an order from Judge Spath given earlier in the week, civilian defense attorneys Rick Kammen, Rosa Eliades, and Mary Spears, absent from proceedings since the chief defense counsel of the military commissions controversially released them Oct. 11, did not appear remotely via video teleconference. At the start of the session, Spath inquired whether the defense had made any progress in finding a new death penalty learned counsel to replace Kammen. Piette said he had not received any updates on the search, and Spath indicated he wanted to speak with the deputy chief defense counsel, Army Col. Wayne Aaron, in the coming days.

The commission then turned to the primary task for the session: the questioning of FBI Special Agent Stephen Gaudin, currently chief of the FBI office at the U.S. embassy in Abu Dhabi. The court summoned Gaudin as a witness in response to a prior defense motion to compel, related to a motion to suppress statements inculpating al-Nashiri made by convicted co-conspirator Jamal al-Badawi. The judge called Gaudin to the stand, at which point Piette noted for the record that the defense did not intend to participate due to lack of learned counsel. Spath remarked that an appellate court would later determine if Piette’s refusal to participate constituted a waiver of al-Nashiri’s rights, and that Gaudin had been forced to travel from Abu Dhabi because of the defense’s motion to compel.

In the interest of coming to a ruling on the pending motion to suppress, the judge intended to proceed with the questioning of Gaudin. Piette responded that Gaudin’s availability did not obligate the defense to call him as a witness. For present purposes, either the court or the government had to call him. Lead prosecutor Mark Miller agreed to call Gaudin as a government witness, but Piette objected on the grounds that the government had not requested him as a witness and the defense could not question him or take any other position without learned counsel present. Spath reiterated his position that al-Nashiri was only entitled to learned counsel to the “extent practicable” and that he would continue proceedings despite Kammen’s absence until an appellate court directed otherwise.

Now testifying as a witness for the prosecution, Gaudin recounted his history in the FBI, including assignments to the Joint Terrorism Task Force of the New York field office from the of summer 1997 to Nov. 2001, on the Osama bin Laden unit in the counterterrorism division at FBI headquarters from Nov. 2001 to Aug. 2002, at the U.S. embassy in Sanaa, Yemen from Aug. 2002 to early 2005, and back at the counterterrorism division from 2006 to 2009. Miller then turned his focus to Gaudin’s involvement in the investigation into the 1998 bombing of the U.S. embassy in Nairobi, Kenya. As part of that investigation, Gaudin tracked down, detained, and then questioned alleged co-conspirator Mohamed al-Owhali over a period of 14 days. During the interviews, according to Gaudin, al-Owhali spoke willingly about the embassy attack, his role in it, his history and training with al-Qaida, and his interactions with other members of al-Qaida in preparation for the attack. In particular, he mentioned a person he called “Bilal” who assisted him in obtaining the fraudulent Yemeni passport he used to enter Kenya to carry out the attack. Gaudin, having showed al-Owhali a photograph, confirmed Bilal to be the defendant, al-Nashiri. Al-Owhali also named another co-conspirator, “Khallad,” previously unknown to the FBI, who was heavily involved in planning for the attack. (Khallad was later determined to be Walid bin Attash, who is currently on trial in separate military commission proceedings relating to the 9/11 terrorist attacks.)

The prosecutor, Miller, then brought the witness forward to the USS Cole bombing in Oct. 2000. Gaudin testified that al-Owhali had provided general information during his 1998 interrogation about a planned future attack on a U.S. naval vessel in the port of Aden—the Cole attack fulfilled that prophecy. In 2002, Gaudin was posted to Sanaa when al-Qaida members attacked French civilian tanker MV Limburg off the coast of Yemen. During the ensuing investigation, Gaudin received notice from FBI agents in Afghanistan that they had an al-Qaida operative named Ahmed al-Darbi in custody and that he was providing information about the Yemen attacks. During those interrogations, al-Darbi identified al-Nashiri from a picture and told FBI agents that al-Nashiri’s cell was responsible for conducting a number of land-based and sea-based attacks in Yemen. (In 2014, Al-Darbi pled guilty to planning the Limburg attack and agreed to assist with al-Nashiri’s prosecution in exchange for a reduced sentence. He is scheduled to testify in pre-trial matters in the coming days.) In 2004, Gaudin assisted with the Yemeni prosecution of several other individuals involved in the attack. Al-Nashiri, whom the U.S. was holding at a black site, was tried in absentia. Gaudin testified that, during the course of the Yemeni trial, he did not review any statements made by al-Nashiri to law enforcement authorities.

In 2007, after al-Nashiri, Khallad, and a number of other detainees were transferred to Guantánamo Bay, Gaudin and a team of FBI agents from the counterterrorism division deployed to the detention facility to re-interview the detainees in an effort to obtain voluntary statements on which to build triable criminal cases. Because of his experience investigating the Nairobi bombing and the attacks in Yemen, Gaudin was assigned to al-Nashiri and Khallad. He interviewed the former for several days in 2007, and the latter on three separate occasions, for several days each, during 2007 and 2008. During all of these interviews, Gaudin testified, the FBI agents ensured the detainees understood their rights and repeatedly stressed that cooperation was entirely voluntary; the detainees could choose not to talk at all, or to stop talking at any point, and no negative inference would be drawn. Effective Arabic translators were present at all times, and both Khallad and al-Nashiri seemed in good health and did not complain about their treatment at Guantánamo.

In Gaudin’s interviews with Khallad, the two discussed the Cole bombing as well as the larger al-Qaida plan that included the embassy bombings and 9/11 terrorist attacks. Khallad implicated al-Nashiri as playing a leadership role in the “boats operation” targeting U.S. ships in Yemeni ports. Miller asked if Gaudin’s questioning of Khallad was informed by any statements obtained through any agency’s prior interrogation of al-Nashiri, and Gaudin said no. (This question reflects the government’s interest in establishing that the FBI’s questioning was not tainted by reliance on information that may have been obtained through torture.) Gaudin next interviewed al-Nashiri over the course of several days about his involvement in al-Qaida and in the Cole attack specifically, again without reviewing prior statements. The FBI agent relied instead on his familiarity with al-Nashiri from the Nairobi embassy and Cole investigations. Gaudin subsequently reinterviewed Khallad in Oct. 2007 to confirm his statements from the first interview.

A month later, in Nov. 2007, Gaudin flew to Sanaa to interview Jamal al-Badawi. Al-Badawi had earlier been convicted in Yemen for participating in the USS Cole attack, had escaped Yemeni prison, and been recaptured approximately a year later. He had previously given a statement to FBI agents in 2001 when he was first arrested in connection with the Cole bombing. The primary goal of the new interrogation was to obtain recent information on al-Qaida operatives, allegedly part of al-Nashiri’s cell, that conducted a series of attacks in Yemen during the summer of 2007. The secondary purpose was to see if al-Badawi would agree to plead guilty in the Southern District of New York for his role in the Cole bombing and cooperate with the government in the prosecution of co-conspirators. Gaudin and two other agents, using a translator, interviewed al-Badawi ten separate times between Nov. 4 and Nov. 20. (Al-Badawi’s statements are the subject of the defense motion to suppress.)

By Gaudin’s account, al-Badawi voluntarily submitted to questioning by the agents, was repeatedly explained his rights, chose to waive his right to an attorney, was in good health, and was unrestrained within the interview room. A Yemeni Political Security Organization officer was present throughout the interviews, but did not ask questions. The FBI agent asked al-Badawi about his recent activities and his interactions with al-Nashiri and Khallad, but did not rely on statements al-Nashiri had given prior to his transfer to Guantánamo. Discussing planning for the Cole attack, al-Badawi described being tasked by Khallad to surveil and spot ships, particularly U.S. military ships, along the Yemeni coast to Hudaydah while al-Nashiri’s team had the same responsibility for Hudaydah down to Aden. Al-Badawi referred to al-Nashiri during the interviews as “Bilal” and identified him in a photograph that FBI agents showed him. Gaudin then confirmed that the person in the photograph whom al-Owhali and al-Badawi identified was al-Nashiri, describing for the record the defendant’s current appearance as he sat in the courtroom.

The prosecutor then moved to admit the FBI report of the al-Badawi interviews, written by one of the other agents present, into the record. Spath asked Piette if the defense had any objection to the court considering the document, and the judge advocate general said the defense took no position. With that, the questioning of Gaudin concluded. Spath suggested, given the current situation with the defense team, that Gaudin would likely need to return at some point in the future to be cross-examined. The judge also indicated that he intended to continue moving through the motion to suppress, in addition to other matters he deemed well within the competency of Piette to handle alone, including cross-examination of al-Darbi.

Spath next asked the parties what they thought he should do about the three civilian defense attorneys who refused to appear, contemplating future contempt proceedings pending a decision from the convening authority or an appellate court on the lawfulness of Spath’s exercise of contempt power over Baker. Piette took the opportunity to further explain his reasoning for refusing to actively participate. He stated that it was not an intentional trial strategy but rather a reasonable response to a situation that the government created, thereby leaving the defense team to face an intractable dilemma. He distinguished between the current situation and that in Strickland v. Washington, referring to the attorneys in Strickland as “qualified lawyers making [what] appear to me . . . to be bad decisions that they are qualified to make.” Piette, in contrast, is “an unqualified lawyer with no choice.” He does not fulfill the statutory criteria for a learned death penalty counsel, and “it’s not a trial strategy to go forward with unqualified or underqualified counsel.”

Spath conceded that Piette was not qualified as learned death penalty counsel but expressed frustration with Brig. Gen. Baker’s and the civilian defense attorneys’ continuing defiance of Spath’s authority. Spath reiterated his view that Piette was qualified to handle matters not closely related to the capital aspect of the case. Kammen’s decision to withdraw from the proceedings held up a process in which many other competing interests, including those of the public and the victims, were at play. Spath was merely trying to advance the “efficient, fair administration of justice” and no superior court had yet overruled his decision to proceed despite the absence of learned counsel.

Miller responded forcefully for the prosecution, calling the defense team’s actions “a scorched-earth strategy to obstruct the proceedings by any means, however frivolous, however cynical.” He continued:

This strategy is aimed at one thing and one thing only, and that is blocking the cross-examination of al Darbi, who the court knows, from listening to the testimony he provided, devastating direct and corroborated evidence as to the involvement of this defendant in the Boats Operations. What they are seeking to do is to run out the clock . . . having run out of these excuses, these connivances, frivolous motions, with the knowing assistance of General Baker. They then determined they would invoke the nuclear option. They would simply refuse to play. They then colluded and came forth with this contrived ethics opinion from a professor who on record has been opposed to the military commissions.”

After a brief interruption of the video feed caused by the security classification button being pushed, Miller resumed his denunciation of the defense team’s “contempt, disobedience and disrespect” and urged the judge not to allow “this misconduct, this strategy to disrupt these proceedings” to stand.

Piette rebutted the prosecutor’s accusations, describing the defense as “attorneys who care about their client, who care about their jobs, who care about justice, who aren’t going to be willing to just give up those things to simply avoid cross-examination of a witness” whose testimony on direct “certainly established no elements that would prove [al-Nashiri] was guilty.”

The judge concluded the session by laying out his plan for the following week, with examination of al-Darbi on Tuesday followed by testimony from FBI agent Robert McFadden and witnesses related to Appellate Exhibit 207. The commission adjourned until Nov. 7 at 9:00 am. Check in later this week for a summary of subsequent proceedings.