Early Arrival at the Ft. Meade Military Base Venue
I arrived this morning promptly at 7:45. I did not want to be late. I never want to be late in the first place, but seeing as how I was now on a military base, I felt that the importance of punctuality was increased even more. I even neatly made my bed and folded the towels at the army hotel on base before I left for the proceedings!
I sat alone for a good hour in the broadcast room (I will call it the lecture hall because that is exactly what it reminds me of: a college lecture hall!) waiting for others to arrive and wondering if I was in the right place. I spent the time alone to once again go over the briefing book.
Others finally show up!
At 8:45 six people arrived at once. One of the blog posts from last week had said that the media are transported to Smallwood Hall all at once so I figured that they were a part of the media.
Two of the young men that were among the group are bloggers for a think tank in Washington. They both asked me if I was with the commission. They thought that I was because of the large briefing book that I had by my side. Kudos to you Professor George Edwards, Mr. Jeff Medding, Ms. Qifan Wang, and Ms. Kristen Brockett! The binder obviously looks very professional and everyone looked at McKinney Law as an expert in these proceedings! So the binder has proven itself to be useful for more than briefing us on the proceedings!
Show Time — 9:00 a.m.!
The proceedings began promptly at 9 o’clock. The defense counsel for defendant al Nashiri, Mr. Kammen first offered an apology to the judge. Apparently the defense had made a clerical error the previous day and was unaware of oneof the judge’s orders. Army Col. James Pohl, the judge, graciously accepted the apology. He simply stated that those are “the reasons for erasers on pencils!”
After the brief formalities were exchanged, the judge began by notifying Nashiri of his right to be present, his right to not be present, and his right to be present for only a portion of the proceedings, the last option being available as long as he and his defense team notify the commission with advanced warning. Through the use of his interpreter, Nashiri acknowledged and said that he understood this advisement. I have to wonder whether he actually needs a translator. He has been in custody for 12 years. He has no doubt been able to pick up on some English since his arrest, the question is how much.
The Motions Begin — Request for Judge to Recuse Himself.
The first matter of business by the defense was to raise the motion for self-recusal by the judge. This motion had already been denied previously but the defense refiled this motion after new evidence had arisen. This evidence was a letter by the entity prosecuting Nashiri to Judge Pohl, asking him to essentially come out of retirement for this case. Allegedly, the letter stated that Judge Pohl would be a good judge for the prosecution team. As you can imagine, the self-recusal motion by the defense was not granted! Mr. Kammen also filed two additional requests for self-recusal essentially arguing that Judge Pohl was not experienced enough for this high-profile case, that his interactions with defense officials before his reappointments created conflicts of interest, the general circumstances surrounding his appointment, and others. Here again, these were all denied.
Mr. Kammen continues further arguing that Susan Crawford (Vice Adm. Bruce MacDonald’s predecessor) did not have the authority to appoint Judge Pohl in the first place. Mr. Kammen argued that the 2006 Military Commissions act was not clear on the appointing authorities given to the Vice Admiral.
The prosecution side rebuts and argues that recusal is not necessary. She even goes so far as to say that recusal would be inappropriate. She argued that this motion was more of an attack on the entire system, as opposed to a motion on this specific ruling. When Mr. Kammen retook the lectern he did not deny this point. Part of the motions for recusal and the challenge to the appointing power of the Vice Admiral also serves to challenge the commission system. The long oratory by Mr. Kammen did not seem to affect the extremely quick denial of the motion.
We recessed for 15 minutes. At this time, lunch orders were taken. There were simple salads with chicken, hamburgers, and slices of pizza. I opted for the salad with chicken and a bottle of water. A couple of hours later at noon they would bring our lunch into the lecture hall.
Afternoon — More Motions
The afternoon was filled with more motions, almost all of them going against the defense. One motion that was stood out was a motion to have the judge determine whether the defendant has a right to the Constitution’s Sixth Amendment to confrontation. The prosecution also wanted to know whether there is a right to confrontation in military commissions. Both sides were in favor of having an order given so they could best allocate their resources for the rest of the proceedings and subsequent trial. The defense argued that if the right to confrontation is not given, then that may open the door to double or even triple hearsay.
The proceedings continue tomorrow morning at 0900. Again, being on a military base, I am trying not to stick out like a sore thumb, so I am even using military time.
Cheers, it should be another full day of motions tomorrow!