Al Nashiri Hearings – 4 August 2014 – Margaret Baumgartner (Ft. Meade)

Logistics: Getting onto the Ft. Meade Base

It was really easy to get onto base.  Make sure that you veer off to the right at the main gate to the vehicle inspection station if you don’t have a DoD sticker.  If you mess up and go straight, they are nice and just send you off a quick side ramp to the inspection station.  Allow plenty of time for DC traffic if you are coming from town.  It was terrible, even at 6 am.  There are a couple of Starbucks within a short drive of the main gate off base.  I’m a coffee nut and need my java in the mornings, so of course, I would figure out where the locations are.

Logistics:  Post Theatre

There is parking at the Post Theatre (the Ft. Meade website said to park at Smallwood Hall and walk over, but it’s a distance in heels).  I was an hour early.  I had plenty of time to talk with the contractors working the Satellite feed.  They are really friendly once they were confident I wasn’t a member of the media out to mis-quote them.

Tidbits from the Contractors

Apparently, the Court Room at GTMO is the most hi-tech in the world.  I also learned that Mr. Kammen (defense counsel for al Nashiri) wears a kangaroo pin on his lapel as a protest to the court.  A kangaroo court, for those unfamiliar with the term, is “a mock court in which the principles of law and justice are disregarded”, according to Merriam-Webster.  Upon close inspection, I could see the pin on the screen, but I couldn’t ascertain the exact shape of said pin due to the feed quality.

The Hearings:  Motion to Recuse

Mr. Kammen spent the first 2 hours questioning the new Judge Spath.  Judge Pohl recently stepped down, however there was debate over whether he recused himself or he un-detailed himself.  If Judge Pohl recused himself, then he would be unable to participate further in the matter.  If Judge Pohl un-detailed himself, he can re-detail himself later and then there would be two Judges on the case.  At issue in the statutes was whether they were written for one judge or not.  A determination was not officially made, though Judge Spath did comment that it was not a recusal by Judge Pohl in stepping aside as there was no bias, prejudice, etc.  Judge Pohl just has a busy schedule.

I was impressed with how Judge Spath responded to the questioning.  His answers were honest.  If he didn’t know the answer, he would say “I don’t know the answer”.  Mr. Kammen asked a lot of hypotheticals of Judge Spath.  Judge Spath would not answer what-ifs and maintained that evidence was key and being biased was not an issue.  The Airman Witt case was brought up consistently.  In Airman Witt’s case, Judge Spath was a prosecuting attorney.  The case was back in 2005 and involved the death penalty.  At issue was whether Judge Spath was pro death penalty due to being a prosecuting attorney.  Judge Spath maintained that everything he did working on the case was strategic and not personal.  The defense attorney from the Witt case may also appear on behalf of Mr. Nashiri in the future.  There was a concern that Judge Spath would be biased against him due to the Witt attorney challenging Judge Spath’s actions in the Witt case.

After recess, Judge Spath came back and denied the Motion for Recusal.  I agree with his decision as I believe that the defense did not overcome the presumption that a judge is impartial.  Everything that was presented was speculative and that is not enough to overcome the standard.  There was no proof of any of the factors normally considered such as relationship to one of the parties, no bias shown, and no prejudice.

The Hearings:  Defense Requests for Discovery from Prosecution

Another issue that played out in the hearings was the balance of discovery with national security.  Defense maintained that the Prosecution was not turning over all of the discovery it was ordered to by Judge Pohl.  Prosecution cited “national security” as the rationale for redacted and missing documents and that they were classified.  However, they were trying to be as compliant as they could given the nature of the documents.

A question that came to my mind (we do this a lot in patent litigation) is:  Why can’t the attorneys for the defense be given the clearance necessary to view the classified documents, so long as they do not share the information with their client, and use this information to aid in their case?  How is this any different from me viewing trade secrets or critical company documents and using these to advise my co-workers of decisions without spilling the contents?  How can the defense properly defend their client if they cannot even view documents that could make or break his case?  Further, the defense has JAG counsel on his team.  I’m fairly sure one of them would have the security clearance to look at the documents and advise the civilian representatives on courses of action.

The Hearings:  Prosecution Has More Resources Than Defense

The other issue that I noticed, and was also brought up during a recess by others in attendance, is the disparity of rank and numbers in the courtroom between the parties.  The prosecution has a General on their team.  The highest rank I observed on the defense’s team was a Major.  It also seems that the Prosecution has more resources at their disposal in regards to workers on the case.  This was discussed much between the two parties with the judge.  In fact, one side or the other was slipping in their opinion on this issue at every chance they had.  The Defense is trying to get parity with the Prosecution.  Of course, no exact comparisons were shown, so I cannot make an informed decision on my stance regarding this.

Adjournment Until Tomorrow

We were dismissed around 4 pm for a recess, upon which classified 505 hearings would take place after the recess.  Open sessions resume tomorrow morning at 9 am.

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