I took a short trip to Washington yesterday to meet up with a friend I hadn’t seen in years. We ate at a place called Sushi Sono — I highly recommend it! The scenery was beautiful even though it was raining. It’s located right on Lake Kittamaqundi off of Patuxent Parkway. The food was delicious! I had a box lunch, which included chicken teriyaki with white rice, as well as California rolls with wasabi and soy sauce.
After a tour of the base, Kristi and I were able to tour the National Cryptologic Museum before returning home. What is cryptology? Merriam-Webster defines it as the scientific study or art of writing and solving codes. The (more…)
Al Nashiri hearing – Thursday, 28 May 2014
There was a lot of discussion in today’s hearing of the report from the Senate Select Committee on Intelligence’s (SSCI) about the entire Rendition, Detention and Interrogation Program. James Zender’s blog entry covered a lot of the substantive legal issues, so I will just over some of the moments that were particularly memorable.
New attorney added to Prosecution Team
A new attorney was added to the prosecution, which made the final count 12 attorneys for the prosecution and 5 (more…)
As the NGO group broke down the morning’s activities over Subway sandwiches, we were all surprised they got through three of the motions that morning. As we looked over the docket, we guessed that two more would be done that afternoon, and things would likely wrap up by Thursday. One motion in particular (AE 120D) was rumored to possibly take a whole day to argue. We expected a much slower pace in the afternoon. Not only were we dead wrong, but I think things could have gone even quicker.
Will al Nashiri come to court this afternoon?
As I took my lucky number 23 assigned seat, I was curious if al Nashiri was going to opt to show up for the afternoon session. At the outset of any round of hearings, he must be present for the judge to explain to him his right to be present, or not be present. Earlier, we got to hear him speak, in Arabic, that he understood that right. According to some of the observers who have been to a number of these hearings, the defendants will often opt out of coming back after the first mandatory session.
Within 3 minutes of sitting down, al Nashiri was escorted in and he took his place at the defense table.
As with the morning session, he spun around in his chair and casually looked across the gallery. As his gaze swept across the room we were in, I felt our eyes meet, for a passing moment. There appeared to be no ill will or flames of evil in his glance, just curiosity. After he made a similar check in the morning, I asked our escort if we were behind a one-way mirror. The answer was a resounding no, but he noted that the glass was sound proof. Judge Pohl entered shortly after our arrival and he quickly got things underway.
Motion AE 267B
The first motion of the afternoon was AE 267B, where the defense was moving to allow the defendant the option to choose whether he wanted a trial by a single judge or a trial by jury. I found this motion flawed on so many levels, and as the defense made their arguments, I found myself trying to reason why they would want this option. It was frustrating to me that I could not concentrate, because the Navy officer making the argument had the best form and delivery out of any of the eight various people who gave arguments. But substantively, I just could not grasp the logic of the motion or his points. The crux of their issue was with the fact that military commission trials have a jury of “members”, all of who are officers (typically higher ranking ones) in the armed forces. The convening authority selects a pool and they are sent down for voir dire. The defense argued this inherently built in unacceptable levels of bias, noting that nearly all the officers would be, like the Navy lawyer himself, a young commissioned officer when the Cole bombing happened. He noted that many of them may have known people on board or shaped strong opinions about the defendant at the time. The judge questioned whether the decision to opt out of a jury trial would come before or after voir dire. I was so caught up still trying to figure out why this motion was being made, I forgot to note the defendant’s answer. What really hung me up was that the whole point of voir dire and each parties’ ability to strike members is to eliminate bias. Claiming other measures needed to be taken seemed to short circuit this control for bias. Furthermore, a single person, instead of a group of twelve, would seem to be much more capable of bias. Finally, I could not even begin to understand why in a capital case, when a unanimous decision of all twelve members is required for the death penalty, the defense would even want the option of reducing that number of votes to one. “They must have a very high opinion of Judge Pohl,” I remembered thinking as the prosecution prepared to make their argument. I was eager to hear their side of the motion. At the conclusion of their argument, everything became completely clear. This motion was nothing more than a defense tactic to attempt to trip up the court and make the whole proceedings invalid. The MCA section 949m specifically states that a jury trial must be given. Furthermore, it notes a death penalty cannot be instituted except by unanimous consent of a twelve member jury. If the judge gives the defense the ability to opt out of this, it would directly contravene the statutory authority and Congress’ explicit intent, thus opening it up for an appeal and invalidation of the trial. Furthermore, the commission’s authority over cases has (according to the prosecution) five necessary parts, including a trial by jury. Allowing the defendant to opt out of a jury would undermine and invalidate the commission’s jurisdiction over the case. After the prosecution finished its argument, which was succinct and well articulated, it became clear to me that this was a defensive tactic to get the proceedings thrown out on a technicality later down the line. Regardless of where you stand on the validity of the commission to try the accused, I am happy the prosecution snuffed this trick out and will likely succeed in averting a technical dismissal. Nothing would be more annoying and a deterrent to some level of justice than the success of such a move. I am very glad we had two prosecutors with us on this trip, because afterwards I was asking them about such tactics. They confirmed that in their long years of experience, they have seen many, nearly identical, ploys made by defense teams. Since the prosecution was rather brief and did not even give a reply argument, Jude Pohl was able to move quickly to the next motion.
Motion AE 270
The next item was AE 270, which dealt with the defense’s request for remedies for the failure of the prosecution to give it evidence. This motion was pretty short, and along with the one that followed it, appeared to be the most easy, simple issues on the docket. They were the ones I was hoping to get at the outset to get me warmed up. The defense was concerned by the fact that certain evidence was produced to them recently that should have been produced earlier. A previous document (AE 045) gave notice to the court that all pertinent evidence was turned over to the defense. However, more evidence was recently found and the defense sought remedies to prove to the prosecution the court would not tolerate the dragging of its feet in releasing material. In perhaps a slight break in neutrality, Judge Pohl asked “And what remedy would you have me give you?” I definitely caught a sign of frustration in his voice. The defense did not seem to have a specific remedy in mind, or at least her answer was so convoluted I could not decipher it, but after this question, the defense council appeared to lose her place and stumbled to get back on track. The prosecution appeared to uncover another common defense tactic, and its arguments mirrored such a sentiment. As he noted, the prosecution has a continuing duty to find and produce discoverable material, and one cannot simply claim anything produced after a certain date is a violation. A continuing duty necessarily means they will be producing things all the time. However, this situation is certainly more unique than most, and while I am not sure the judge should issue remedies here, a regularly filed motion similar to this one may be a positive thing for the process. There is no doubt the various branches of the government are not in sync with what is happening here in GTMO. Some parts are actively against it and failing to cooperate. Some parts are trying to subversively control it. One part, the prosecution, is trying to make it happen. With the prosecution being pulled by so many different strings, it is certainly important to “hold their feet to the fire” as the defense said, to show that this court will not be toyed with or manipulated. While I would be shocked if the defense prevails on this motion, given the historical nature of the proceedings and prime setting for government conspiracy, this sort of motion is a healthy part of the process of justice.
Motion AE 272
Motion AE 272 served as the penultimate motion in this round of hearings. It was the only motion that was actually uncontested. The defense noted how the FBI had approached and caused members of the defense team in the 9-11 hearings to sign non-disclosure agreements, which represents possible illegal contact and possible conflict of interest problems. Supposedly, such contacts have also been made in this case, and the defense is seeking to have the court compel any defense team members to tell their team, or the court, if they have been contacted. The prosecution had almost no argument and agreed that such an order should be made. Furthermore, he was going to look into the possibility that such contact would represent a conflict of interest.
Motion AE 120D — The “big daddy” (request for reconsideration of AE 120C)
As the last motion came to quick resolution, all my fellow observers and I stared at the docket we were given. This leaves only AE 120D, the rumored big daddy of all the motions to be heard. Surely, the judge was not going to try to start it so late into the afternoon. But, without hesitation, he called the prosecution forward to address its motion.
General Martin — What were the underlying issues?
For the first time at the hearing, General Martin proceeded to the podium. He looked very impressive with his salt and pepper hair, very calming demeanor and speech pattern, and massive display of colors, medals, and badges on his uniform. His motion was a simple request for reconsideration of the judge’s previous order on AE 120C. At the outset of his argument, he asked to display things on the monitors, the only person to do so in the hearing. I was even more intrigued. What followed, was nothing short of a disappointment.
For the better part of the argument, I failed to grasp the underlying issues and what specifically he was looking to have done. It was made even more frustrating because his reputation is one of a very smart man, but his argument was either too smart for me, or fatally disjointed. Once the defense came up, I began to form a much better view of the issues. The order the prosecution was seeking to have reconsidered compelled the it to turn over, in discovery, information on the CIA’s RDI (Rendition, Detention, Interrogation) program. The prosecution argued that the order was too vague at parts in order to properly comply with it. Furthermore, it argued that a change in facts results in a need for the judge to reconsider the motion under the new set of facts.
The facts the prosecution relied on is the ability of the defense to now be able to show the defendant documents about events that happened to him. I think this basically means they are allowed to show him photos or documents related to his confinement or torture.
The defense countered that procedurally, in order to properly grant a motion to reconsider, there must be a change in facts or law from when the order was given. Here, they argue, no such law or fact is given. No new law was given, but the prosecution did mention in passing the fact that the defense has the ability to show things to the defendant. However, it seemed like this was not actually a new fact, and therefore, this motion fails on procedural grounds. Even if it was valid, the defense made an interesting point that part of the reason they needed (and he thinks they were given) access to the RDI program material was that they could not be effective counsel, as required by law, without it.
Stripping away the material now, would mean they could not make an effective defense. After a very long-winded argument and reply, I ultimately think the defense will prevail on this motion. Discussing this motion afterwards with my colleagues, I noted my disappointment in the General’s argument. However, they noted something I had not considered in that he had a terrible argument to begin with (they noted the apparent procedural flaw), and this can certainly reflect on how the argument is given. One person noted he was the one who likely gave this argument because his status might lend extra weight to the issue.
End of the hearing for Observers.
At almost exactly 4:30pm on the first day, our experience in the courtroom came to a close. We all could not believe it was over. We thought there were many occasions when the judge would end the arguments for the day, but he kept powering through, taking only a 15 minute recess in the middle. Despite our expectations of a longer hearing, things could have been even shorter. One of the most distinct differences I noticed in the commission proceedings compared to regular courts was the lack of a timing mechanism. There were no green-yellow-red lights or countdown timer. Attorney’s were given free rein to talk as long as they wish, which is never a good thing I would think. Ultimately, that proved true only in the final motion, where the defense seemed to massively overstate, restate, and reiterate points. We all laughed afterwards that there were at least four or five times we thought he was going to end it, only to ramble on about something else.
Judge Pohl – Strategies?
One of our escorts made a very good point noting that he thinks Judge Pohl recognizes the historical nature of this proceeding, and the fact that it is likely to be appealed until the cows come home. He thinks the compilation of as complete of a record as possible can only serve to help such situations. Through this lens, I can certainly agree. However, after reviewing all the attorneys’ arguments in my mind, I noted how the lack of a time limit appeared to hurt them because on at least three separate occasions, I noted that the attorney was very redundant. Ultimately, I think the lack of some time limit makes for much more disorganized and loose arguments. Having a time limit allows you to focus on what’s important and organize it in a way that effectively makes those points. After watching a day of hearings, my immediate reaction as to what to change would be to institute time limits, even if they are more than would be typically necessary.
Meeting with General Martin
After the hearing, we were lucky enough to schedule a sit down with General Martin almost immediately after the hearing. We filed into the media room where we sat in a nice little circle for a round table discussion with him. For nearly two hours, we were able to ask him questions. I particularly enjoyed the handful of questions he took from our prosecutors because it really helped to harmonize the military commission process with the typical court process. They noted to him multiple different procedures, rights, tactics, and issues that the sides addressed that are mirrored almost exactly in domestic courts. His reputation for intelligence was confirmed as he easily cited to both the military commission and domestic rules that mirrored one another, and noted the differences in terms and usage.
He came off as someone who had a deep understanding of the system, a recognition for its flaws, an openness on how to make it better, but ultimately, a zealous belief that it is the best system currently for these trials. I was particularly stuck by his entertainment, and out loud thinking, of better solutions to people’s perceived flaws in the system being used to try al Nashiri.
He referred a couple times to the Nuremberg Trials and Yugoslavia and Rwanda tribunals.
I was eager to ask him to what extant he looks to those trials for guidance or indications of how to proceed in a military tribunal, which one day will likely hold the same historical significance. However, he was focused on the other side of the room and then had to leave. Two hours was a generous amount of time, and I was glad he took the time for us.
Dinner at Caribbean Jerk House
After he left, we piled into the vans for a trip to the Caribbean Jerk House for a late dinner. I am pretty sure the two guys running the place did not care what we ordered They grabbed something from the bins, cut it up and served it to us. Despite half of our orders being wrong, we were all so hungry, we were going to mimic Judge Pohl and have a power session on some jerk flavored chicken and ribs.
It’s a great honor and privilege to be part of the MCOP team both as an Advisory Council Member and a participant in Commission observations. The thing about once-in-a-lifetime opportunities–they only come once! Having done work in the fair trial section of human rights and international humanitarian law both locally and abroad, this opportunity is very fitting for my professional and academic interests. What’s more: the other individuals involved in the project are equally or more knowledgeable in the field and have great backgrounds to compliment the mission.
Leading up to my hoped arrival for the Al-Nashiri trial on Friday, May 30, 2014, I was wrestling with the Military Commission Act of 2009 and the wealth of other sources relating to the facts of the USS Cole bombing and the procedure of the Military Commissions. This was well buttressed by the briefing with Richard Kammen, Indiana attorney and Capital Defense specialist counsel for the Defendant. I was quite curious to see how everything would play out, and the extent to which the trials may have been for “show” as many critics have alleged.
Well, the Friday, and the Thursday, hearings were canceled because Judge Pohl concluded seven motions yesterday. This means that the observation I was scheduled for is no more. Others who were already there looking to observe Wednesday through Friday were/are similarly inconvenienced, as well as one MCOP participant who was en route to observe Thursday/Friday. We can imagine many other individuals–journalists, lawyers, other NGO representatives, being inconvenienced by what we might speculate as a “rushing” through of the docket. This is a display of the uncertainty of the Commission, the application of the Commission’s procedural law, and how the pace is heavily set by the presiding judge. Personally, I am having trouble deciding what my reaction to this is. I want to represent the MCOP in a way that works well with my other obligations, want to play my role, generally, as a human rights advocate by reporting to the world both the pros and cons of the Commission’s procedure, but then again I understand this whole thing is much bigger than me. Ultimately, I can only hope justice was properly served for both the Prosecution and Defendant in this hyper-drive rush through the motions this week. I’m looking forward to what materializes now that this weeks trials have concluded.
First Day of my round of the al Nashir hearings – 28 May 2014
I just finished the first day of al Nashiri hearings down here in Guantanamo Bay, and it was a power packed session. Over the course of three days, they had scheduled seven separate motions, as well as a couple closed sessions for discussions related to top secret material.
I was looking forward to a couple of the lighter, easier motions to get me started, followed by some of the more contentious and complex ones to come later in the week. However, they were able to power through all seven motions today, leaving only one closed hearing in the morning. As things currently stand, my time witnessing history has come to a close, and it took only five hours. But, boy were they a loaded five hours, and it all started with a bang…
Rise and shine – Guantanamo Bay style interrupted by an explosion!
The first motion of the day was scheduled at 9am, but was to be conducted in a closed session due to security concerns. This meant we got to “sleep in” until 8am, when the trumpets blared over the loud speakers the National Anthem. Everyone was certainly happy for a few extra minutes of shut eye after arriving promptly at Andrews Airforce Base by 6am the day before.
We assembled at 8:30am outside our tents, and started walking with our escorts over very shortly thereafter. The two minute walk to the courthouse was interrupted by a massive explosion.
The shock wave shook the ground and pounded our chests with the force greater than any fireworks show I have ever witnessed. Our escort, whom I was walking next to, was wide eyed and looking around at the military personnel for explanations. They too were confused. We continued into the courthouse checkpoint very leery of what to expect.
The guards conducting the security check immediately asked us what was going on. Having seen a large plume of white smoke arising down by the water line, I told them about it. They all had very concerned looks on their faces, but continued to shuffle us through the security checkpoint. Once we were in the waiting room to go into the court, the guards there were all talking about what happened.
Our escort and I were able to find out that supposedly there was some unexploded ordinance that was being control detonated. That was reassuring. Nothing says perfect timing like a huge explosion ten minutes before an alleged terrorist is brought into a courtroom. Suddenly, two smaller booms rocked the lobby. Everyone looked around, first at the guards, and then the guards at each other. Despite the fact that they were wearing wires (like you see secret service guys wearing), they had no clue what these explosions were. But, it was time to get into our assigned seats, so they showed us into the viewing room.
In the Guantanmo courtroom
Each person attending the viewing has an assigned seat. I was number 23, the third row back, and seated three seats from the left end. I was looking directly at the defense side. Not even a minute after sitting down, the detainee guard unit brought in al Nashiri. He sat directly in front of me.
Court was called to session and the prosecution had an addition to their team that was made known at the outset. A civilian attorney was joining them. The defense took the opportunity to reiterate to the court its outstanding motion and belief that the defense is at a distinct resource disadvantage. They noted how the new addition was the twelfth member of the prosecution, while the defense is stuck at five, and the judge is dragging his feet on allowing a sixth.
With these preliminary issues noted in the record, the judge turned to the first motion: AE 206.
Motion AE 206 (and more explosions rocking the courtroom)
The first motion of the day was from the defense.
This motion is looking to compel the prosecution to produce a Senate Select Committee on Intelligence report on the CIA RDI (Rendition, Detention, Interrogation) program. This motion was one of the more interesting ones because it implicated a number of issues. First, the prosecution has an ongoing duty to disclose evidence to the defense, and this report contained a number of details regarding al Nashiri’s treatment while confined. The defense argued the report contained a number of items, which would be extremely valuable to their defense, and the prosecution’s failure to produce the report warranted an order to compel.
As a preliminary matter, Judge Pohl asked if he was even capable of compelling the Senate to produce such a document.
I was surprised that the defense did not spend more time on their answer, beyond a mere “yes”. The judge seemed quite concerned he would not be able to compel a separate branch of government to produce such a document, but neither the prosecution nor defense, when asked directly by the judge, elaborated on authority or law, which pointed to his ability to compel disclosure.
Despite my novice nature in this arena, I would have certainly prepared authority to back up that very likely question. Moving forward, the defense focused on the probative value of the RDI report to their case and why the full report, and not just an executive summary, was needed.
In the middle of his argument, the room literally shook with another explosion. No one even flinched. The CCTV feed was even shaking considerably. I wonder if those at the Fort Meade location even knew what rocked the camera.
The defense counsel finished his argument shortly after this fourth explosion.
His presentation was the most spirited and aggressive advocacy we saw all day, hands down. His colorful language included terms like “fantastical treatment” and his demeanor was more like a basketball coach pleading his case before a referee who just called a terrible foul. Due to the issue of the topic, discovery of an item highly relevant to the defense, I can understand the advocacy/frustration in his argument. I wonder if his enthusiasm will change when he has to argue al Nashiri did not kill 17 sailors.
The prosecution’s attorney on this issue was the polar opposite. She was extremely tight, very formal, and hardly ever showed emotion, although there were times you could see she wanted to maybe raise her voice or use more pointed language. The government argued it has been seeking all material to the best of its ability and that the underlying information that the report was based on has already been given to the defense. I found this to be an interesting point since the report’s sources would seem more important than the report itself. However, I found it even more interesting that the prosecution overtly dodged the judge’s direct question on whether they have asked the Senate for the report.
In terms of good faith in trying to produce discoverable material, it seems a “yes” answer is highly desirable, but her utter lack of acknowledgement of the question and very political answer gave a very strong impression that they have not even asked for the report yet. Even if the report does not contain something the defense already has access to, this answer made the government look bad. This could be why in the middle of her answer, General Martin himself, the Chief Prosecutor, called the attorney over to the table. He conferred with her for a moment and she returned to give the court a future date, June 20th, on which the prosecution will know in more detail when and if the report will be available.
This was pretty much how they left the discussion of motion AE 206.
Motion AE 013N
The next motion was AE 013N, which asked the judge for permission to release secret information to the DC Circuit for use in a habeas case filed there on behalf of al Nashiri. The habeas case was filed in order to assert the commission did not have jurisdiction over the matters at hand. Due to Protective Order #1, issued by the judge, no information is to be released without his prior consent. Therefore, the defense was merely looking to obtain his consent before having it sent to the DC judge. However, the information the defense sought to be transferred was related to al Nashiri’s confinement, which the judged questioned whether it was even probative and necessary for the DC Circuit’s habeas determination.
Defense acknowledged it was not directly related, but may serve to indirectly help his decision and that furthermore, it should be released to the DC Circuit now, in case he needs it, instead of having to come back later with this same motion if he asks for it. The prosecution noted Protective Order #1 specifically laid out the procedure for procuring release of secret information and that the current situation has not met those steps yet.
While the prosecution was making his arguments, two more explosions echoed throughout the courtroom. As with the other one that happened while court was in session, no one even paused. The prosecutor, this time a Marine JAG officer, made a very compelling case, and of the seven motions heard, I feel this is one of the two that were obviously won by one of the sides. Protective Order #1 appears to clearly articulate the procedure for getting transfer. It is to occur upon the need of the secret information, followed by an appropriate motion to compel its transfer. Here, the DC Circuit has not indicated the evidence would be necessary or relevant, and thus the transfer of the material now would seem like a waste, especially if they never use it. Given the secret nature of the evidence, the burden and cost of transferring something that is not even utilized seems excessive, and I would not be surprised to see Judge Pohl rule this motion is premature.
The final motion of the shortened open morning session was AE 266, which was certainly the most uncomfortable of the motions discussed. I say this because the viewing room is populated by NGO observers, media, victims’ family members, and any base personnel that wishes to watch. I cannot even imagine what it must be like for the victims’ family members to come down and look the accused killer of their loved one in the eyes. Furthermore, I do not imagine they harbor a very kind view towards those tasked with defending him. This motion compounded these feelings when the defense team made direct mention to them.
The motion sought for the judge to disclose any inappropriate communications he may have had with government agencies (i.e. the FBI, CIA, or other secretive organization that might have a hand in a government control of this commission conspiracy) as well as communications he may have had with victims’ family members.
The defense noted the unique situation of the GTMO hearings; all the media, NGOs, defense teams, prosecution teams, court administrators, and victims’ family members fly down on one plane and live in relative close proximity. This means that inadvertently, Judge Pohl could have contact with one of the victims’ family members. As the defense attempted to delicately articulate how such contact would be inappropriate (and it would, per the 2009 MCA), I could not help but look over at the members sitting across from me. They were both hurt and shocked that they were being dragged into this, and possibly used as a technical excuse to let the accused walk from the commission.
While as a lawyer I understand the purpose and legitimate point of the argument, no matter how nicely he attempted to put it, it came off as cold and disrespectful, and it certainly made for an uncomfortable 5-7 minutes. None-the-less, prosecution was quick to note that it was not at all opposed to the judge disclosing all ex parte communications that would be cause for concern, and noted it does not believe any such actions have occurred.
The prosecution also focused on stating exactly where the line is between appropriate ex parte communications, which are outlined in the MCA, and those that are forbidden, also outlined in the MCA. At the conclusion, I feel like the judge did the best thing in noting he would make a written statement noting that no inappropriate ex parte communications have been made to a government agency. He then explained that while he may have said “good morning” to a victims’ family member at some point in a terminal, that he takes every precaution to avoid inappropriate contact and that so far, none have been made.
End of the morning session
This concluded the morning session of motions and the court adjourned for a little over an hour for lunch. As I checked out of the courtroom, I wondered if the afternoon would hold any more uncomfortable situations, one sided arguments, or explosive interruptions. Since it is getting pretty late right now, I will add the afternoon’s motions tomorrow in another post (Power Session Part II)
I started today with a feeling of excitement and nervousness. After communicating with the other MCOP participants, I realized that I would be the only representative from IU McKinney at the hearing today. What a responsibility! At the end of the day, I also realized that the judge had cleared his docket for the week. In other words, today was the only day this week that hearings were going to be held that were not classified.
I have decided to split up my post for today in two separate posts: one with my personal observations and unique experiences, and a second post that deals with the substantive legal issues that were covered in the hearing.
I have never been on an active military base, and had no idea what to expect. My taxi driver told me that it sometimes takes awhile to get cleared to access the base, especially with persons who enter by taxi. When we pulled up to the gate, my driver had to turn off the engine, open all the doors, and show both his license and mine to the guards. After a thorough inspection, I was allowed to come in. Success!
I pulled up to the Post Theatre, and came into the darkened room only to notice that I was the only participant present. I am the typical type A law student, so I made sure that I was over thirty minutes early, which gave me plenty of time to get settled and prepare for the day. The individuals overlooking the observation informed me that no cellphones, laptops, iPads, or anything else capable of recording is allowed into the theatre. For some reason, I had not anticipated this and slightly panicked because, as a law student hooked on electronics, I was intending on taking notes of the trial on my iPad the entire time. Thankfully, one of the leaders had an extra pad of paper. We have her to thank for my reporting to you all!
I was informed that they had received word that the trial was going to be closed until 10am, meaning that there would be no streaming due to the sensitive nature of the material being heard. Fortunately, the leaders streamed Good Morning America, so I was able to watch Matt Lauer and friends while I was waiting for the trial to begin.
Around 10:45am, Judge Pole appeared on our screen and the hearing was called to order. Before hearing any substantive legal issues, Judge Pole informed Al-Nashiri of his rights as a defendant, such as the right to appear at any and all trials he wished to observe and, at the same time, choose to not appear at any of the hearings without any prejudice towards his case.
I was struck when I first saw Al-Nashiri. I do not know what I was consciously or subconsciously expecting to observe, but I was surprised to notice that he looked like an average man that you would see walking down any street in New York or Indianapolis. When you search for images of Al-Nashiri, the man that appears looks very different than the man that I saw today. Today, Al-Nashiri was dressed all in white and was clean shaven with a full head of dark hair. He looked younger than I expected; I found myself stunned at the idea of him planning this horrific terror attack at such a young age. To be frank, I almost forgot that the hearing I was witnessing was one that was so crucial to national security. It wasn’t until the defense counsel referred to his client as “a potential terrorist and a potential member of Al Qaeda” that I was thrust back into the reality that I was watching a hearing relating to the prosecution of a man accused of acts of terror against our US military and who is an alleged member of the most infamous terrorist group in the world. Al Nashiri was leaning back in his chair, yawning, and looking sort of nonchalant about what was happening around him. It was not the reaction that I would have expected from a man who was on trial for his life.
One thing that I can say with 100% certainty is that these men, men who are accused of war crimes that are heinous to the average citizen, are receiving their right of zealous advocacy through effective counsel. The attorneys for Al Nashiri argued just as efficiently and effectively as they would for any other client. I found myself wondering if I would be able to do the same if I were placed in their shoes. The lawyer in me wants to scream a resounding “Yes”, that I would be able to respect the legal system and the rights of these individuals to have a fair trial that adequately and fully provides them the opportunity to be innocent until proven guilty. On the other hand, there is a part of me that wonders if my advocacy would be hindered in any way because of the pre-conceived notions that are inherent in a case of this political magnitude. It was apparent from my observation today that equality, fairness, and justice were not only sought, but achieved in this military commission.
There were only a few other people in Post Theatre with me observing this hearing. I spoke with two individuals, one from the ACLU and another from the Human Rights Campaign and both of these individuals have had prior experiences observing military commissions and they had both been to Guantanamo multiple times. They were each so nonchalant about their travels that it blew my mind. I wanted to hear all about their experiences, but they were insistent that it was just like any other business trip. I’m hoping James can shine some light on this- I would be ecstatic to have any opportunity to travel to Guantanamo Bay and be in the location where some of these military commissions that are so crucial to our nation’s security occur. I’m not sure it would be an experience that I could ever see as ordinary.
I was fortunate enough to tag along with the ACLU representative for lunch. I thought that lunch was going to be brought into the theatre, but instead we were dismissed for an hour an a half to do whatever we liked. We ended by stopping by a weekly farmer’s market on base and stopping at a Subway. The lunch area reminded me of a mall food court with many different types of food and stores shoved into a small area.
The rest of the afternoon flew by. The other observers knew the docket schedule and were surprised at how quickly Judge Pole and the attorneys were going through the motions that were contested. When we ended around 4:30pm, Judge Pole announced that the rest of the hearings would be classified and therefore closed to the public. Today was the only hearing that was available for streaming. It was a bummer for our other MCOP members who were either en route to the base or already in Maryland. Despite their travels, they were unable to view any part of the hearing.
As I was waiting for Whitney, a fellow MCOP participant, I called my father to tell him about the day and what I had observed. I have always lived life with a “No guts, no glory” attitude, and as a result have been able to meet people and have experiences that I would not have been able to have if I hadn’t had the courage to ask. I told my dad that it was unfortunate that I was only going to be on the base for one day and had not had a sufficient chance to explore what else it has to offer. He suggested, perhaps in a joking manner, that I should find the Commander of the entire base and ask for a tour. I just happened to be standing across from the Garrison Headquarters, where the Commander and Command Sergeant Major’s offices are located. I meandered over to their offices and walked up the steps of the grand building. I confidently walked through the front door only to come to a stop with a “Oh no, I’m not supposed to be here” moment. I immediately turned to walk right back out the door when I bumped into two very important looking men.
It is not everyday that you casually bump into the Commander and Command Sergeant Major of an active military base, but that is exactly what happened to me. I recognized their photos as they were hanging in Post Theatre as a way to inform everyone who was in charge. They were very cordial to me, but looking into their eyes, I could tell that they were very serious men. I told them that I was a law student here to observe the USS Cole trial and that I was interested in learning more about Ft. Meade. To my excitement and surprise, they asked for my business card and said that they would pass along my information to their head JAG officer who may be able to give me a tour tomorrow. I gave them Whitney’s information too, and we are both excited about the opportunity to have a sort of backstage tour to Ft. Meade.
I loved being at Ft. Meade to observe this hearing. I am sad that my fellow MCOP participants were unable to make it to the Al Nashiri hearing, but I am excited, as I know they are, to have the opportunity to travel out to Ft. Meade again in June to observe hearings related to 9/11. I am very grateful for this opportunity and feel as though I have been privy to something that very few people will ever get to experience in their lifetime.
The Post Theatre
The Garrison Headquarters, home of Commander Foley’s and Command Sergeant Major Latter’s offices
Detour en route to Ft. Meade!
Well, today didn’t turn out exactly as I had planned. I was scheduled to be at Ft. Meade tonight getting ready for the USS Cole hearings tomorrow and Friday.
I left Indianapolis today around 11:00 after a quick visit to the office to get a few last minute things wrapped up. I swung by the law school on my way out of town to pick up the HUGE briefing binder for the program. Just as a side note, my huge thanks for the group that put these together. I was reviewing my electronic version all weekend in preparation for the trip and it was extremely thorough and helpful. After picking up the binder I headed out of town on my 9 hour trip to Ft. Meade.
Generally the road trip was pretty uneventful and I was anticipating getting into my hotel near Ft. Meade around 9:00 PM. I made pretty good time and around 6:00 decided to stop in Morgantown WV for dinner and to check e-mails etc. During this break I learned from Kristi, who was the only one of the 4 of us who was able to attend today’s hearings, that there had been a bit of a change of plans. Apparently things went so smoothly and quickly today that they didn’t need the other two days for the open hearings, and the only things left to cover were classified so they would not be open to the public. Grrrreat. So after a few frantic calls, emails and texts we confirmed that basically we were done for the week (before I got started).
At this point, being 6+ hours from Indy at 7:00 PM I wasn’t too pleased. Fortunately for me, I grew up in Pittsburgh and my parents still live there so I ended up backtracking about an hour and a half to my parents home in Pittsburgh for the night. At least I got to spend some unexpected time with them and I have an unexpected day on Friday to get some more work done at the office.
My next trip to Ft. Meade – June hearings in the 9-11 case (Khalid Shaik Mohammed)
While I am disappointed my first Ft. Meade mission got scrubbed at the last minute, I am still looking forward to the June 9-11 hearings, involving several men accused of masterminding the attacks on the World Trade Center and the Pentagon in September 2001.
This does make me think though of all the logistics involved with this and even in today’s digital society, why there are only a few limited sites to watch the hearings. It sure would have been easier if I could have just flipped on C-Span and watched from the comfort of my living room. I’m sure my very patient wife would have also appreciated me being home and able to simply watch it on TV as well.
All I can say is that I am hopeful that the June 9-11 hearings will turn out better for me!
Military commissions have a lot in common with what we know as a regular trial that takes place in the US Court system. What differentiates a military commission is that a military commission is a court of law traditionally used to try law of war and related offenses. An alien unprivileged enemy belligerent who has engaged in hostilities, or who has purposefully and materially supported hostilities against the United States, its coalition partners or was a part of al Qaeda, is subject to trial by military commission under the Military Commissions Act of 2009.
I have read the brief of the Amici Curiae prepared by retired military admirals and generals in support of the defense council who is in opposition to the military commission as the forum to try this case. An amici curiae opinion is an opinion on the case or an issue in the case that is written from an interested third party who is not directly involved in the litigation. There are two points in this brief that particularly struck me: that the attack on the USS Cole occurred at a time where there was no “war”, and secondly that allowing this “retroactive” dating of when a time of war existed would lead to endangerment of American soldiers lives were they to be tried in a military court abroad. I find that these two issues are inherently linked to one another, and I must respectfully, yet strongly, disagree with the assertions from the defense.
“Terrorism” as it is known today is a fairly new concept. I asked my parents if they were worried about “terrorists” and “terror attacks” when they were growing up, and their answers both surprised and saddened me. According to them, a “terrorist”, as they used the term growing up, was an unruly child, one whose actions were unpredictable and wild. Today, kids as young as grade school know a “terrorist” to be someone who has the intent to scare and potentially harm a large group of people. Frankly, the events of 9/11 had to change the definition of terrorism and, subsequently, the rules and regulations that are linked to this concept.
I would argue that we are in a theatre of war whenever we are attacked in connection with an act of terror. The USS Cole attack was undeniably an terrorist attack, one designed to be targeted directly at some of our sailors stationed abroad. Although the President and Congress had not specifically declared a war, in my mind there is no question that attacking a US military ship with a bomb constitutes an act of war. It is for this reason that I disagree with the defense and their arguments that the military commission is inappropriate because it did not occur in a time of war.
The second point that struck me was the assertion that allowing this trial to be held in a military commission would put our own soldiers at risk for trials abroad. One of the greatest qualities of our nation is that we want to treat everyone in a dignified and respectful manner. We are cognizant of the consequences of our actions and want to do our best to secure our soldiers’ safety and security. However, what fails to be mentioned is that not all countries are following the American example. If an American was captured by al Qaeda, the American would not receive increased protection because if his nationality. Rather, the chances that he will be treated with brutality are immensely high.
In their briefing, the defense council described some instances during the second world war and the reign of Hitler. At that time, the American military made sure that German prisoners were treated to the same rations as American soldiers. General Dwight D. Eisenhower said that he did “not want to give Hitler the excuse or justification for treating our soldiers more harshly than he was already doing.” Sadly, the circumstances are not comparable to the situation that is at hand today. Our current conflict is not against a unified armed force that is led by a single commander; we are against individuals who are united under a common enemy, America.
A military commission is a way to let these individuals, who have been accused of war crimes against the United States and our compatriots, a chance to be treated with a level of respect and humanity that would likely not be reciprocated if the roles were reversed. Trying these cases in American federal courts would hinder the administrations of justice because the nature of the beast of war and terror. A military commission affords these individuals a fair trial, complete with zealous advocacy and opportunity. It is the correct forum for this case and is sufficient in ensuring that justice will be administered.
After a series of flight delays, and a delightful conversation on the BWI airport shuttle with a man who looked like George W. Bush, I am happy to report that I have finally arrived in Ft. Meade! I’m anxiously awaiting hearing observations tomorrow and Friday. Kristi is going to brief me about today’s events over dinner tonight.
For future Ft. Meade go-ers:
Car Rental – I advise renting a car instead of relying on taxi service. Although all cabs must charge the same rate for travel in this area, the charge is quite pricey. Additionally, another observer, Kristi, arrived yesterday and had a horrendous time trying to get a cab to show up at the hotel. Renting the car was quick and easy. I called from BWI and took the airport shuttle to the rental car pick-up. Furthermore, I found it easy to navigate from the airport to the hotel.
Hotel – Although I just arrived today, I intended on staying at the Ramada Inn Hanover. Kristi checked in to that hotel yesterday and said the service was and room were abysmal. We have since switched to the Courtyard Marriott located at 2700 Hercules Road Annapolis Junction. Thus far, no complaints. I will detail any abnormalities should they arise.
Hotel Update 5/30/14 – We had a great stay at the Marriott! It had a bistro open of breakfast and dinner. The food was delicious! There was a not-so-delightful chirp of the smoke alarm at 5 a.m. An attendant came in and yanked it off the wall so we could sleep. Good thing there wasn’t a fire! But, it was only a minor inconvenience and the staff was pleasant and apologized for it. The cost for the room (2 queen beds) was approximately $150/night, but with a roommate, it was affordable and much nicer and safer than economizing at the Ramada.
Greetings from IND! I’m currently sitting on the tarmac. The captain said we are delayed . . . but doesn’t know for how long. We’ve already been sitting for 45 minutes. I thought I’d try to make good use of the time, so I’m writing you now. Once I get to Maryland and into my hotel, I will try to write again.
I’m honored to be joining three other IU McKinney affiliates this week at Ft. Meade for the al-Nashiri hearings! I spent much of the weekend familiarizing myself with Military Tribunal procedure. I’m looking forward to seeing it in action the next three days. I will take note of everything I observe and report back to all of you. Looking forward to meeting and working with all of you.
Update 5/30/14 – If you plan to fly, avoid US Airways as if it were the plague. The cost of my ticket for roundtrip Indianapolis to Baltimore with 1 stop in Philadelphia was a reasonable $315. However, inclement weather in Philadelphia made travel impossible the night of 5/27/14. Instead of delaying prior to boarding, they proceeded to board. So, we are all seated and buckled. The captain then tells us all that we have to wait for at least 45 minutes on the tarmac before we get any information from the control tower about weather in Philly. Not bad, right? I can wait another 45 minutes. Yes, well, 45 minutes comes and goes. The captain informs us that we are delayed indefinitely. What does that mean? I guess I won’t be making that connecting flight, but even worse, we are still sitting on the tarmac. The captain informs us that we will be going back to a gate to deboard. However, that didn’t happen for another 1 1/2 hours. Apparently, there were no open gates at the airport? I guess once you taxi away from the gate you advance to a point of no return. I sat on that plane for over 2 hours, and after they let us off, was unable to get a later flight out. I was forced to settle for a fight the next morning. I know it’s not the fault of the staff when weather delays or cancels flights, but they could have at least acted like they cared. I found the staff unfriendly and unapologetic.
The woes do not end there. I arrived in Ft. Meade only to learn our mission was scrubbed, I tried to alter my flight departure date from Saturday 5/31/14 to Thursday 5/29/14, but the cost to change the date was $200 + $25 reservation service fee + $125 for the new ticket. Absolutely ridiculous! Instead of throwing money at that absurdity, I spent $180 on a new one-way ticket from Baltimore to Indianapolis with one stop in Chicago from United. I will never fly US Airways again. If you feel you must travel through that airline, be sure to add extra travel insurance or confirm the fees for changes that may come up in your travels before purchasing a ticket. I’m thinking that driving from Indy to Baltimore may be a favorable alternative.
As I was researching the background to this case, it occurred to me that this attack must have triggered a switch in the mentality of our armed forces. America has always been seen as a dynamic military world power; our nation would be called in and the battles would ensue, almost all of which ended in our victory. We, America, were the party that always went to the battlefield, rather than the party having to defend an attack on the home front.
The USS Cole bombing was one of the most shocking times that our military has been directly targeted and attacked successfully. September 11 brought the realization that American citizens may have a risk on our own soil, but the USS Cole attack brought the realization that our military is now at a heightened risk when they are abroad.
The USS Cole bombing occurred on October 12, 2000 in Yemen. The Cole was fueling when the sailors saw a small boat approaching, the attackers were waving to the soldiers as the boat pulled up next to the Cole, and subsequently exploded from the hundreds of pounds of explosives that were packed into the tiny fishing vessel.
That attack killed 17 sailors and wounded 39 more. It tore a 40 by 40 foot hole into the side of this $1 billion ship. Al Qaeda has hailed the attack on the USS Cole as one of its greatest military strikes. Just 11 months before 9/11, we just started to experience war on the home front unlike any we had seen before.
I am especially drawn to this case. When I worked in Washington, D.C., I was fortunate enough to experience one of the most touching and impactful moments of my entire life.
When our service men and women return from battle, they are typically welcomed home with family members holding signs, arms wide with hugs, a feeling of honor, pride and respect is ever present. However, many of our men and women who are deployed are unable to return with the rest of their troop and experience the overwhelming welcome because they were injured and too ill or hurt to travel back with the rest of their unit. These men and women are honored at the Pentagon with a Wounded Warrior march.
I can still remember the feelings and emotions that came over me when I watched these men and women experience their long, overdue welcome home in the halls of the Pentagon. Every single person employed at the Pentagon, from the janitor to the highest ranking general, lined the hallways and clapped and cheered for these heroes. Some were outwardly hurt, missing limbs, in wheelchairs, burns, but some of the individuals’ wounds were not accessible to the naked eye. I have never felt such pride, respect, and admiration for our armed forces as I did during that ceremony. This moment has impacted me tremendously and to this day I will always try to thank a service man or woman for the enormous sacrifice that they have made for this Nation, and as a result, for me.
It is for this reason that I am drawn to the USS Cole case. Our men and women on that battleship had no idea that their safety would be put at risk by suicide bombers. The bomb hit right outside the mess hall, which led to the high number of lives lost. It took 14 months and $250 million to repair the damage that this one, tiny fishing boat did to the USS Cole, one of the most technologically advanced military vessels in the world.
I am delighted to be chosen to travel to Ft. Meade, Maryland in order to observe the hearing of Al Nashiri and his involvement in the bombing of the USS Cole. This is truly a once in a lifetime experience and as a third-year law student who has an equal fascination with law, policy, national security and human rights, there is no greater opportunity than this.
I remember sitting in my sixth grade math classroom after a break in ISTEP testing on Tuesday, September 11, 2001. Our school guidance counselor came in, gestured for our teacher and proceeded to have a heated whispered conversation. Our teacher then told us that the school was canceling ISTEP for the day, and started showing us a funny video online. We were all confused. A few minutes later, I was in the hallway when one of the social studies teachers ran by with tears in her eyes. It was not until the lunch period when a fellow student announced to our table that, “The United States had just been bombed.” I can still remember the feeling that washed over me at that moment. I felt as though everything slowed down, and a panic came upon me like none I had experienced before. I eventually learned the truth about what happened that day. In fact, sealed up in a shoebox in my parents attic, I took every copy of any newspaper I could find from September 12, 2001, and taped it in the box with a sign on it that says, “Not to be opened until 2021.”
That day changed my life. It changed the nature of our country as a whole. America had arguably not been attacked on home soil since near the birth of our nation. Pearl Harbor was the only other attack that was similar to this one, but it happened far off our coast, not in one of the biggest cities in our nation. One of the main reasons that I chose to attend law school is the fascination that I have always held for the law and our nation’s security. After 9/11, I started becoming more attuned to the emotions that other countries and citizens of those countries had towards America. I became fascinated with everything relating to national security and the law, whether it be news stories, novels, or speaking with everyone and anyone I could who had different experiences dealing in this unique brand of international affairs.
I had the wonderful opportunity to work out in Washington, D.C. for a summer as a Congressional aide to our now Indiana Governor Mike Pence. I learned to give tours of the Capitol where I talked about the plaque that sits on the far end of the rotunda honoring Flight 93 and the crewmembers and passengers who stepped up and saved the Capitol from being struck by the last plane. I toured the Pentagon and saw exactly where the plane struck the ground, bounced up, then slid into the side of the building where some of our nation’s most protected meetings occur. One thing that particularly struck me about the Pentagon was that the section where the plane hit was under construction; the number of people in that section was a fraction of the normal workforce and from that, lives were spared. Through my studies of aviation law I was able to learn about that day from the men and women working in the air traffic control tower here in Indianapolis. Our city became one of the main hubs for grounding planes, and these individuals had the task of grounding the second largest number of planes of any airport in the nation. They spoke of how they were frantically searching the radars for the hijacked planes and how eerie it was when their radar only showed around twelve planes that were strictly being monitored or flown by members of our armed forces.
That day helped solidify my future in law. The American justice system fascinates me in the sense that even these men, who have been recommended for prosecution for war crimes, get fair and honest trials. The USS Cole attack predated 9/11 by only eleven months; it was the first real glimpse into the mass casualty mindset that these individuals have against Americans and our way of life. Having the unique opportunity to observe the trial of the alleged mastermind of the attack will be enlightening and exciting.
I am also eager to observe the military commission process and how it differs from litigation in the US courts. I currently work at the trial law firm of Cline Farrell Christie & Lee and have already learned an incredible amount about our trial system here at home. I hope to highlight some of the commonalities and differences amongst the two in my postings and also explore why and if the military commission is appropriate for the issue at hand.
I leave in two days for my trip to Maryland. I have packed my bags, loaded my iPad with the incredible briefing binder that was put together by the leaders of this program, and am looking forward to my time at the base!
In what can only be described as a whirlwind couple of days, I was fortunate enough to have earned a nomination by the MCOP to represent it during the next round of hearings at the end of this month. After Professor Edwards notified me that I was the one selected, I tried my best to keep my emotions in check. The Pentagon still needed to confirm my spot.
Thankfully, I was not in limbo for long. The following morning I received the confirmation from them, along with the requisite documents to make it final. I was so excited to be (more…)
Today’s hearing starts at approximately the same time as yesterday. Again, the court staff checks with the interpreter during preparation.
The first thing in the morning is Judge Spath commenting on AE305. He agrees that he would be the one ruling on the open motions. While he is going to do it on existing records, without extra hearings, unless the records are not enough to give a ruling. Then he mentions that the defense may file motions for reconsideration if there is any new fact occurrs. Next he comments on the resource issue discussed yesterday. Since there is no motion for that particularly, Judge Spath notices the defense that if they fail to get assistance from the Convening Authority, they may file motions to request in the court and the court would issue orders if necessary.
AE278 – Protocol for the Procedure of Execution
Then we move on to AE278, the defense’s motion to compel the Secretary of Defense to publish protocol for the procedure of execution. Recognizing the case is still in constructive/evidentiary phase, Mr. Kammen focuses on the impact of protocol upon the jury. He mentions that the jurors are military members, and ‘killing people is part of the bill’ for them. Thus it is highly possible that the way of execution, rather than execution itself would be determinative to the jurors’ decision. If the way is cruel, the jurors may consider that ‘this is not the right way since we are not in battlefield’. Besides, Mr. Kammen argues that it is not rare that the rules are changing all the time. He mentions the security policy regarding cuff links again. Thus to get a settled protocol in writing, a court order would be necessary. On the other side, the government argues that the protocol is a matter of law, and not a mitigation element (not unique to the defendant). Thus it is not appropriate to talk about it to the commission members. Also, if the defendant is found guilty and subject to execution, that would be years later. It is not ripe to discuss this issue at this point. The discussion for this motion does not last long.
AE279 – Additional Funding for Mitigation Investigator
Next motion is AE279, resource again. The defense is requesting additional funding for a mitigation investigator Mr. Assed to continue his work in Saudi Arabia, communicating with Mr. al Nashiri’s family and neighborhood. As the only person speaks Arabic and is Muslim (only Muslims can travel in Mecca, the home city of Mr. al Nashiri), Mr. Assed’s participation is essential for the mitigation investigation. The defense establishes their argument based on the cultural background, the language barrier, the social atmosphere in Saudi Arabia and argues that the additional 175 hours of work is necessary. Dealing with the fact that Mr. Assed has already been working on this issue for 400 hours, defense mentions that it’s not enough to a large extent due to the lack of proper resource. For example, their request for a female interpreter has been denied, thus they have to go on the trip without one, and later make another travel in order to fulfill the purpose. The government argues that it’s already 400 hours spent on one single person, and the resource provided to the mitigation team is considerable. Besides, the specifities provided by the defense is not enough to articulate the actual needs. It is noticeable that Judge Spath interrupts the government’s counsel several times, mentioning that this is related to the direct communication with defendant’s family. I think that Judge Spath is more with the defense for this motion. At the very end, he comments that since it’s a capital case, there will be more cost incurred. If the government chooses to go for it, those costs have to be accepted. I would not be surprised that Judge Spath rules for the defense. Again, I’m not able to assess the allocation of resource from a comprehensive point of view. But that female interpreter example is impressive. At least in that circumstance, it is indeed a difficult situation the defense is facing.
The next two motions, AE280 and AE281 all deal with classified information. In AE280, the defense is requesting the government to provide more specific markings in the classified document summaries, indicating what is classified and what is not, rather than marking the whole document as classified. The government argues that there is no legal authority to impose this duty, either in the DoD Mannual or in the Executive Order. And as a practical matter, if there is any inconsistency regarding the classification level between the summaries and the subsequent materials, a lot of more litigations will be followed. In AE281, the defense is requesting a guidance of how to handle those classified information to the defendant, Mr. al Nashiri himself. The defense concerns that without a clear and stable secrecy policy dealing with Mr. al Nashiri getting access to the classified information, it is practically difficult to predict what kind of behavior would be considered as leaking information. For example, what if Mr. al Nashiri goes back to his cell and tell other people about the information? In fact, no documents or agreement is for him to sign relating with his security clearance. The government argues that it has been confirmed that Mr. al Nashiri can use the summaries, and other materials. There should be no worries from the defense.
I could see that it’s a matter of trust at issue here again. The defense feels insecure and untrusted, that the government may use any behavior to preclude an defense attorney, to continue detaining Mr. al Nashiri and to impose negative impact upon the defense. Thus they are trying to get as much clear policy or guideline as possible, to ensure that they are complying with everything. In my view this concern is not unreasonable in circumstance. While the production for such document or policy is determined by the OCA, which is not subject to the direction from the government. Thus it is another thing we never know whether the defendant can get or not.
AE283 – Admissibility of Evidence
In the afternoon, the first motion is AE283. The government is requesting a hearing to determine the admissibility of photograph and video taken near the site of bombing as evidence. The defense is not objecting for such hearing, while emphasis that the government must establish solid ground for the admissibility. Being less complex, the discussion of this motion does not last long.
Yemen Friendship Agreement
Next, the court moves on to AE285 and AE306. These two motions are filed by the defense, arguing that applying MCA to Mr. al Nashiri (holding dual citizenship of Saudi Arabia and Yemen) violates the Yemen Friendship Agreement. Under the agreement, Mr. al Nashiri as a citizen of Yemen shall enjoy the full protection of laws and authorities of United States, according to the defense. The Yemen Friendship Agreement is a treaty and shall be the law of the land under the Supremacy Clause of the Constitution. And the Congress cannot pass law (MCA in this circumstance) to alter or limit it. Also, United States is exercising de facto control of Guantanamo Bay, thus the Constitution applies geographically. As for MCA, it limits several fundamental rights and only applies to non citizens. Thus, applying MCA to the defendant constitutes a violation of the Agreement. Judge Spath raises the question that is the Agreement made with a consideration, or applicable to the enemy combatants. In my view this is a question of whether there has been a fundamental change of circumstance which may invalidate the treaty in certain circumstance. Defense counsel argues that the Agreement is reaffirmed in 2004, and if then the President want to change or limit it, he should have done so. The government cites several prior motions and argues that this issue has been discussed. And the law controlling and protecting Mr. al Nashiri is MCA. Besides, the Agreement itself, as an international treaty, does not create private right, or private cause of action.
In fact I have been expecting more robust arguments for this motion. While the defense to some extent focuses on the different treatment Mr. al Nashiri is receiving, rather than bouncing back to the treaty law rebuttal the government made. Noticeably, this motion is one of those the defense trying to make constitutional challenges and get rid of MCA as a whole, followed by AE295 and AE296 – 301.
AE295 challenges MCA’s constitutionality base on its selective targets towards Muslim. The government rebuts that it is not the case. MCA deals with those who violate the law of war. And it’s not targeting any religion particularly. Thus it is facially neutral. AE296 – 301 raises the ex post facto argument that the statute of limitation, which is five years, provided by Article 43 of the Uniform Code of Military Justice has passed, thus all the charges against Mr. al Nashiri shall be dropped. The government argues that MCA does not provide a statute of limitation, and the provision of UCMJ does not automatically apply. In addition, having no statute of limitation is consistent to the international criminal law practice.
These two sets of motions, especially the ex post facto arguments, are significantly shorter than I have expected. These questions touch the basis of legacy/constitutionality of the MCA, as the controlling legal instrument here. Ironically, these motions seem to be less developed comparing with others. Maybe it is just acknowledged that these motions are less likely to work in the Military Commission anyway.
The court recesses. Tomorrow morning would be the end of this weeks’ hearings.