Power Session Part II – 28 May 2014 (al Nashiri-view from GTMO)

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.

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