A Student’s Perspective on the USS Cole Trial- Kristi McMains- May 28, 2014 (Part 2)

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 for the defense. The defense counsel seemed especially irritated by this fact; he spoke of the “obvious gross disparity” between the prosecution and defense.

I noticed that the defense tried to play up this fact throughout his argument and kept focusing on the uniqueness of the situation. It was a very interesting legal technique, and not one that I am sure was particularly effective. The message between the lines seemed to imply that Al Nashiri was not getting a fair trial.

He constantly mentioned the “unusual attorney-client relationship” and how that automatically hindered their case because it would be difficult to confirm any of the stories that Al Nashiri shared with his attorneys.

He then said that the prosecution’s response to the request for production of the SSCI Report was a “cruel joke.” His argument kept going towards the “unfairness” of the trial and how Al Nashiri isn’t getting equal treatment.

I found that by continually repeating this point, part of the power behind his argument was lost. I would almost cringe when he would bring anything up that was in an effort to discredit the prosecution or even the Judge himself.

Defense suggestion of possible improper influence?

The defense counsel went so far as to suggest, “not to accuse”, that maybe there have been improper influences on the prosecution and the judge. They talked about how if the judge had any outside conversations with any agency or any victim’s family, that he need to come forward.

Earlier in the trial, the defense counsel had asked Judge Pohl to recuse himself, or take himself off the bench because, for some reason, he would not be able to make fair decisions. A recusal motion is rarely granted, and oftentimes has a negative effect because not only is that judge still presiding, but now you have practically told him that you are not confident in his abilities to stay impartial. Not a great way to make an ally.

Knowing that background, I was shocked to hear the defense counsel suggest that Judge Pohl had some sort of improper conversations with the families or a government agency. The attorney was definitely not winning himself any favors by this accusation, and Judge Pohl made sure to set the record straight by insisting that he has had no improper communications.

Judge ordered prosecution to turn over evidence to the defense

At the last hearing, the Judge ordered the prosecution to turn over a significant amount of evidence. The prosecution then filed a motion to reconsider, and that motion was being argued in the court.

A motion to reconsider is not supposed to be granted (or even filed) unless new information or facts have come into play that would change the Judge’s mind. One of the main arguments revolved around the validity and existence of these new facts. The defense counsel’s main assertion was that the entire motion was pretext; the prosecution was upset with the decision and was now taking up precious judicial resources to ask the Judge to reconsider.

Showboat techniques?

I mentioned earlier about the showboat techniques that the defense counsel had been using, and noticed them again during this section of the argument. After practically insulting the judge by accusing him of improper communications, the attorney went on to praise Judge Pohl for his “courageous and brave decision” of ordering these documents to be turned over. According to the defense counsel, no decision of this magnitude or importance has been made “since Watergate” and, if the decision were to stand, Judge Pohl would go down in history for his brave actions and “willingness to seek justice.”

I’m not sure what everyone else thought of his strategy, but I personally found it to be difficult to take seriously. It was almost too sugary and stood in stark contrast to the accusations that he made earlier about Judge Pohl.

My view as a hearing observer

As a hearing observer, I found it frustrating that rulings were not being made as the motions were being argued. I almost felt like I was watching a television show, and on the season finale a massive storyline ended in a cliffhanger. I found myself going back over everyone’s arguments for each issue and trying to predict what the resulting decisions would be.

al Nashiri

Al Nashiri sat quietly throughout the entire process. He was wearing headphones that broadcasted the events of the day into his translated language. I am immensely curious as to what his reactions to the arguments were. Nothing on his face gave any suggestion as to what he could be feeling. I wondered if he even understood what was happening around him.

Ft. Meade v. Guantanamo Bay?

I feel very lucky that I was able to listen to these motions. Even though I was not in Guantanamo listening in person, I still felt as though I was an active member of the audience. I was able to follow along with the complicated legal arguments and observe the atmosphere of the courtroom. I am even more excited to travel back out to Ft. Meade for the 9/11 hearings. There will be four defendants being tried at the same time and, according to one of the gentlemen who helps organize MCOP at Ft. Meade, the resulting hearings are usually more captivating and dramatic.

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