AL NASHIRI HEARINGS – 5 AUGUST 2014 – MARGARET BAUMGARTNER (FT. MEADE)

Ft. Meade Parade Grounds

Ft. Meade Parade Grounds

NGOs in Attendance

Today, I made another effort to speak with those in attendance at the Theatre.  It wasn’t a large crowd.  There was one guy who kept to himself (he left at lunch), the lady who polices the door, the two contractors handling the feed, and the wife of one of the prosecuting attorneys.  I spent some time talking to the wife and found her very nice.  She will be lonely once the trial begins.  The attorneys will not be leaving the base until it is over.  She did not give many thoughts on the hearings other than they have been going on a long time.

The Hearings:  Death Penalty 

Defense filed a motion to compel the procedures on the manner in which the Government intends to put Mr. Nashiri to death if he is found guilty.  Judge Spath mentioned that the timing for this motion is a bit early because if the defendant is acquitted, then this becomes moot and there are other pressing matters to attend to.

Recently, there was an execution that took almost 2 hours to complete in Arizona.  There is debate as to whether this execution was “botched”, resulting in cruel and unusual punishment.  Defense wanted to make sure that Mr. Nashiri would not be put to death in a manner thrown together at the last minute or would be executed in an unreliable method.  Defense also wanted to know the proposed location of said execution.  Mr. Nashiri cannot be moved to U.S. soil (ruled on in a prior hearing that he cannot be moved to the U.S.) and Gitmo does not have the facilities in place to conduct an execution.  In defense counsel’s words, “things don’t run smoothly at Gitmo”.  Knowing the manner proposed for execution will help with qualification of the jurors, as argued by the defense.  For instance, a juror may believe in the death penalty if it is done by lethal injection, but have reservations about hanging a person.  Thus, it was stated, the ability to render a fair decision may be compromised by personal beliefs.

The prosecution argued that Federal law provides precedent for the timing of disclosure of death penalty procedures.  They cited several cases that ruled the disclosure is not until after conviction and a date is set for the sentence to be carried out.  Prosecution also argued that how a person is executed is not something to discuss with members of the court in voire dire, but is a legal question for the judge.  No ruling was handed down at this time.

I noticed during this particular motion that the defense kept talking in hypotheticals for events that are 10-15 years down the road.  I felt like they were intentionally delaying proceedings because not all of the arguments worked in were even relevant.  I further question why Judge Spath has not interrupted more often and asked them to make a point or tell them that they are getting off track from the issue.  It seems that a lot of leniency is given to the defense in this manner and it is really slowing the pace of the hearings.  One of the contractors commented to me that “every day their client is alive, is another win for them”.  Strategically, I think the defense continually reminds the court that a man is on trial for his life in order to keep the charges “real” instead of a sanitized, or intellectual, issue.  Thus, they try and work this in at every opportune moment.

The Hearings:  Funding for Defense Contractor

In a change of pace, the defense was asking for more funding for Mr. Assad.  Mr. Assad is an investigator who has been working with the defense team in Mr. Nashiri’s hometown of Mecca, Saudi Arabia.  Defense had asked the Convening Authority (who is in charge of funding the proceedings) for additional funds for more work from Mr. Assad.  This request was denied, leading Defense to file a Motion to Compel with the Commission.

Defense spent a significant amount of time detailing life in Saudi Arabia and that “things move slowly over there” to justify the extra 175 hours of funding.  Mr. Assad has already been paid for 396 hours of work and is approved for up to 400.  The most poignant statement in support of their argument is that Mr. Assad is Muslim.  In Saudi Arabia, only Muslims can go to Mecca.  As such, he is the only member on the defense team who can travel there to meet with Mr. Nashiri’s family.  Some of his family members cannot travel due to health or work, thus it is easier for someone to go to them.  He is also fluent in Arabic.

Plaintiff argued that stating slowness of process is not enough of an argument.  Need to hear relevance and necessity.  Judge Spath asked the defense if Mr. Assad was providing with results they needed.  The defense responded yes.  Mr. Assad is meeting with Mr. Nashiri’s family and in a capital case, mitigation comes directly from the family.

I believe the Judge will rule to release the funds that were previously denied by the Convening Authority.  He made a remark that “because the Convening Authority wants this to be a capital case, then they need to be prepared to spend the money associated with one”.  Further, I believe that the defense has a strong point in showing necessity of retaining Mr. Assad and that he is necessary to building their case.

One of the prosecution commented that they are stewards of tax dollars and shouldn’t just give a blank check to the defense.  Judge Spath promptly put this attorney’s foot in his mouth by reminding everyone of the private plane flown in on to Cuba and the costs associated with convening there.  I think I was the only one who burst out laughing.  Good one, Judge Spath.

The Hearings: “Trust-Free”

Mr. Kammen was discussing how Gitmo is “trust free”.  Even though they (defense counsel) have the necessary clearances, they are not trusted with information that is relevant to their case.  I noticed that Mr. Kammen’s lapel pin was missing today.  He has been upset that they are not allowed to have their earrings or cuff links on when in Court (arguing also as lack of trust and unfairness).

I presume these rules are in the interest of safety to avoid anything that could be used to harm or pick locks, etc., by Mr. Nashiri.  I was speaking with one of my brothers at lunch and asked him the means for attaching the ribbons to the JAG officers’ uniforms (all the flashy colors on the left breast).  He informed me that pins are used.  Knowing that, I feel that Mr. Kammen is not exaggerating in stating that the codes are constantly changing and they don’t know where they stand.  How is a long pin (equivalent to a safety pin) any different from the post of an earring or a cuff link, for that matter?

The Hearings:  Constitutional Issues

Several motions were filed for dismissal of the case on grounds of the violation of Constitutional Rights.  Among those clauses mentioned was freedom of religion, ex post facto, supremacy, and equal protection.

In regards to freedom of religion, it was alleged that the Act authorizing the Commission is targeting members of al Qaeda.  Defense based their argument on the assumption that all members of al Qaeda are exclusively Muslim.  Plaintiff presented an analysis of applying strict scrutiny to the statute (which I fondly remember from Constitutional Law class) and made a strong showing that 1) the statue is facially neutral in that the words Muslim or Islam are mentioned, and 2) the statute does not restrict religion (talk about how it is practiced) but goes to the laws of war.  The definition of “unprivileged enemy belligerent” was read.  While it includes “a member of al Qaeda” in the definition, it is not targeted and includes other terms and can be applied elsewhere.  The case of Korematsu was discussed (Japanese internment camps during WWII in the US) and I do not believe that the Defense was able to make a strong enough presentation of evidence contrary to the prosecutions case.

In regards to equal protection and supremacy, the Yemeni Agreement was discussed.  This is a treaty that was signed between the U.S. and Yemen that an accused should be treated correctly and receive the fullest protection of the law.  Supremacy clause arguments were also made since the treaty was made by the President.  Thus, the Commission cannot override the US Constitution and the Yemeni Agreement because they are the highest law in the land.  Whether or not the Yemeni Agreement applies was moot to the prosecution in that they argued “fullest protection” and “equal protection” are accorded to an unprivileged enemy belligerent who violates the rules of war.  The prosecution also used the “unprivileged enemy belligerent” definition to argue against violation of the ex post facto clause of the U.S. Constitution.

No rulings were made on these and in all, I do not think there were strong showings from the defense as to their allegations.  Granted, they do not have a robust body of law to draw from as the Commission does not have 100+ years of case law like the Supreme Court.

Adjournment for the Day

Sessions resume tomorrow morning and they hope to finish up tomorrow evening for the week. I’ve been giving a lot of detail on the proceedings themselves.  Once they are finished for the week, I plan to go back and assess the bigger picture.  In the meantime, enjoy this snapshot of the Ft. Meade Parade grounds (above)!

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