al Nashiri Hearings begin – August 4th Morning – GITMO – Qifan Wang

al Nashiri, the alleged USS Cole attack mastermind, in the GTMO courtroom

My First GTMO Hearing

This is the very first hearing I’m participating in as an NGO Observer at GTMO. It is for the al Nashiri case against the person charged with being mastermind of the attack on the USS Cole in Yemen in 2000.

Moving to the GTMO Courtroom; Prosecutor Statement

We walked from our tents to the court. After strict security checks, the NGO team entered the gallery. The seats are assigned and we all sit on the left end of the room. It is said the families of the victims are on the left side. While we are waiting for the hearing, we learn that the Chief Prosecutor Brigadier General Mark Martins gave a statement yesterday afternoon. He made some brief remarks about the recent decision by the Court of Appeals for the DC Circuit, al Bahlul v. United States, upholding the conspiracy conviction and vacating the material support for terrorism and solicitation convictions. Also, he mentioned about the upcoming discussions about motions and orders around AE120AA. This is also among the main issues for this week’s hearings.

Inside the Court — The Hearings Begin

Before the hearing starts, the staff in the courtroom check with the interpreters whether the system works. The interpreters are obviously in another room, rather than being present in the courtroom. At about 9 a.m., the hearing starts on time. This is the first time that the Air Force Col. Judge Vance Spath appears for the week. The defendant, Mr. Al Nashiri is sitting in the courtroom, physically close to his learned counsel, Mr. Kammen. There is only one person sitting between them. I’m not sure who this person in the middle is, and suspect that he is the interpreter on the defense team. Mr. al Nashiri is wearing a white T shirt and looks in an ordinary condition. Sitting from the gallery I can only see his back at a distance. the camera does not often catch him in the face. In fact I do not get a clear look on him particularly. And the only words come from him is when he answering Judge Spath’s question about whether he understands all his rights as ‘yes’.

Questioning the Judge – Bias or Conflict?

The only issue the court deals with in the morning is ‘questioning the judge’. Judge Spath was recently assigned to the case, and the defense has a chance to ask questions about whether the judge is biased. For me this is a very interesting process since I have never seen, or even heard of this kind of procedure before. There is no such thing in civil law practice arena.

The government does not raise any question for the judge.

And the whole play in the morning is between Mr. Kammen and Judge Spath. Mr. Kammen asks a lot of questions, covering extensive topics. He focuses on the process and reason why Judge Spath was nominated, his prior knowledge and view about the current case, his prior and ongoing (if any) communication with Judge Pohl and other members involved in the case. Also, he raises some opinion questions. The view about death penalty (here is where the Witt case kicks in, in which Judge Spath served as the prosecutor and it was a death penalty case), the view about Islam and Muslims. Mr. Kammen expresses his concern that the judge’s personal view on certain issue will have impact on the way he interprets the law. I can see his logic from a subjective point of view. Meanwhile I doubt the effectiveness of these questions in this circumstance.

The answer from Judge Spath is professional. He makes emphasis of a minimum contact with the affiliated personnel, not having much prior knowledge about the case and the defendant(no more than news event). With regard to the opinion questions, his simple answer is usually ‘I don’t know’, or more common, ‘I follow the law’.

I think the more powerful point is the potential conflict incurred by Mr. Mixer, who is a defense attorney currently also working on the Witt appeal case. As the prosecutor of the Witt case, will Judge Spath have bias upon Mr. Mizer/the defense team if the Witt case get overturned? Judge Spath answers that he’ll not be impacted since he is used to being overturned.

The ruling is not hard to predict to some extent. It is very unlikely that Judge Spath would recuse himself. In the afternoon Judge Spath says that he could not see any actual bias. Like I said in the former part, the questioning process is very interesting to observe. I believe that it provides a vital opportunity for the defense (and government) to get a more close and thorough chance to gather direct information and make the assessment of potential bias or conflicts. Although the decision maker is still the judge himself, the process may give some clue of the main concern on the defense’s mind.

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