Power Session Part I — 28 May 2014 (al Nashiri-view from GTMO)

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.

Motion AE266

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)

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