Arrival after hearings closed to Observers!

I arrived at Ft. Meade last Wednesday afternoon, and was therefore, unable to attend the only day of the al-Nashiri USS Cole hearing open to the NGO observers last week. The Judge decided to hold the rest of the hearings for the week in closed session.

Although I am disappointed that I was unable to observe the hearing, I am more than obliged to provide my thoughts on the hearing after reading the transcripts. I have now had the opportunity to read the three separate transcripts covering the al-Nashiri hearing as well as the perspectives of two student observers who attended/watched the hearing. Overall, I found that our opinions were similar regardless of the method of observation. The frustrating part is not knowing how the judge will rule on the motions. As of the time of this writing, the judge’s rulings have not been made public. The following are the notes I took while reading through the transcripts.

The 3 separate transcripts for hearings from this day can be found at this link:  Wednesday, 28 May 2014 Daily Transcript

Transcript First Segment  — 10:52 AM – 12:11 PM (28 May 2014)

The hearing commenced with the defense arguing a “grotesque disparity” between the resources available to the prosecution team and the limited resources available to the defense. The prosecution has approximately 12 lawyers on the team, and the defense has a mere five.

Motion — AE 206

Judge Pohl moved on to the first of seven motions — AE 206. This is a defense motion to order the production of the entire Senate Select Committee on Intelligence’s report into the CIA’s Rendition, Detention and Interrogation program. The defense argued that the entire report, not just the executive summary of the report, is material to the defense because it may contain prior statements of the accused and potential outrageous government conduct. Even though the defense would be unable to disclose any information deemed confidential to the accused, the defense argued that the information would put what the accused says into perspective. The prosecution, in its rebut, argued that this is not how discovery works in these tribunals. First, the government receives. Second, the government reviews. Only then does the government provide information that is relevant and material for the preparation of the defense. The prosecution also argued that the experiences of others should never be discoverable, thus only al-Nashiri’s experiences would be relevant to the defense.

My thoughts — This motion involved aspects of military tribunals that are vastly different from Article III courts. It is obvious why the government wants to shield suspected terrorists from confidential, top-secret information, but it is also understandable why this vetting process severely limits the capability to form a succinct and concrete defense.

Motion — 013N

Next, the defense moved to release information to another court, more specifically, the U.S. District Court of Columbia. The defense argued that this military commission lacks jurisdiction to try al-Nashiri because the U.S. was not involved in hostilities at the time of the attack. The prosecution argued that the court itself, rather than the defense, needed to ask for the release.

Motion — 266

The defense then moved the court to disclose any and all ex parte communications between government agencies and the parties involved. All the parties travel together to these hearings held in GTMO. The victim family members sit near the front of the plane, the trial judiciary is in the middle, and everyone else is in the back. The concern is that there is plenty of opportunity to coerce or attempt to coerce or influence the commission. The prosecution did not oppose this motion. The judge said that he was unaware of any ex parte communications.

Transcript Second Segment — 1:34 PM – 2:25 PM (28 May 2014)

Motion — 267B

I don’t think I would’ve understood this motion had I not read Mr. Zender’s blog post. Apparently, this motion was a mere tactic by the defense to get the case thrown out on procedural grounds at a later time. The defense argued that the case should be tried by a judge only, with no jury. However, the military code requires a 12 member jury trial for all capital offenses. Since al-Nashiri is charged with capital offenses, a 12 member jury is required.

Motion — 270

The judge had ordered that anytime the prosecution gave discovery after September 2013, the prosecution must give notice of that discovery. The defense, in its motion, argued that the prosecution had not done so and sought remedies under 701(1) and 701(3). The defense argued that the purpose of the judge’s order was to “hold the government’s feet to the fire.” The prosecution argued that it just recently came into possession, but the defense argued that the documents and other evidence had been in their possession since 2008. The defense wanted to know why discovery had been delayed so long because late information could impact the case. For instance, the information could include mitigating information such as the accused’s letters about his confinement.

Transcript Third Segment — 2:42 PM – 4:27 PM (28 May 2014)

Motion — 272

The defense moved the court to order any member of the defense team to come forward if they had been contacted by the FBI, any other government official, and signed a nondisclosure agreement. Apparently this had happened in the 9/11 hearings and the defense did not want the same repeated in this case.

My thoughts — At first, I was confused by this motion because it seemed like the prosecution would move for the defense team to come forward rather than the defense team moving against itself. However, it made sense when the defense explained that the court order would have proper weight as opposed to the defense merely asking people to come forward.

Motion — 120 (unclassified part)

This is the government’s motion for reconsideration. The judge had ruled that the prosecution must provide the defense with discovery relevant, material, and necessary concerning (a) the chronology of identifying where the accused was held between his date of capture and September 2006; (b) the description of how the accused was transported; and (c) & (d) the identities of medical personnel, examining and treating physicians, and psychologists, etc. . .

The defense argued that motions for reconsideration require new facts, and the prosecution offered no new facts, just a means for the judge to backtrack on his prior order.

Conclusion

Although I was unable to observe the hearing, I conclude that reading the transcripts gave me similar insights to the process that others had viewing the hearing. However, I cannot fully account for the intangibles that I missed by merely reading the dialogue. I was unable to see or hear the accused speak, observe the families of the victims, or feel the emotion of zealous advocates. I hope I can soon return to Ft. Meade and/or take a trip to GTMO someday to experience what I have missed.