After the NGO Observers had a quick lunch in the NGO Lounge, we returned to the courtroom for the continuation of the case against al Nashiri, an alleged mastermind of the USS Cole attack off the coast of Yemen that killed 17 U.S. Sailors and injured dozens more.
Judge fails to recuse himself.
Unsurprisingly, the first thing in the afternoon is Judge Spath’s denying the motion of recusal.
How many judges are on the case? Who is in charge?
The court move to motion AE305 dealing with another very strange situation.
Chief Judge Pohl presided over the al Nashiri case from its beginning, until last month when he detailed a successor, Judge Spath, to handle the case.
But Judge Pohl reserved his authority regarding some al Nashiri motions. The result is at this specific time, there are two military judges in charge.
The defense makes a textual interpretation of the Military Commission Act, which consistently use the singular form (‘a military judge’ and then ‘the military judge’). The defense wants Judge Spath to reconsider some prior motions Judge Pohl had ruled upon.
On the other side, the government does not have much trouble with that. The government is arguing that there is no actual overlap between the authority of Judge Pohl and Judge Spath.
Judge Spath asked whether he can issue order in contradiction with Judge Pohl’s former rulings. The answer would be yes. Then it just becomes more confusing since what would be the actual point for Judge Pohl to preserve this authority? The defense labels the potential impact on the court as ‘unlawful influence’, while the government rebuts as there is no prejudice shown.
It is somehow difficult for me to comment on this motion and these arguments. Just like lots of other motions or procedures, this is a unique situation and it’s foreseeably hard to find any reference or precedents. I agree that if any new fact or law occurred, a motion for reconsideration would be the proper tool to ‘re-open’ a former motion which Judge Pohl had already ruled upon. While this does not solve the potential impact of Judge Pohl’s preserving authority. The government argued there is no supervisory relationship. But does it have to be supervisory for the original Judge Pohl to influence the current judge? I think it is much more complicated.
The next two motions, AE120S and AE120BB, all deal with the discovery.
With regard to the discovery Judge Pohl had ordered in AE120C (related to the treatment of Mr. al Nashiri during detention by CIA in several locations), the defense is requesting an index, indicating what is what and what is where. Further, defense also requests a timeline by the government to hand in those discovery.
At this point, defense mentions about the disparity in resource between the government and the defense team. With such limited resource, with due diligence the defense is not able to locate the information at issue within all discovery the government has handed to them. Defense is concerned about the actual compliance of AE120C by the government, since still some of the discoveries are unavailable to them due to classification and other unknown reasons. Both the index and the timetable, in their view, would help ensuring the discovery order.
On the other hand the government argues that there is no legal provision requiring such an index. For the timetable the government emphasis that they will assure the compliance of AE120C, and an update would provided by September 9. With regard to the resource issue, the government (Gen. Martins is arguing for this motion) mentioned that the standard ‘equitable resource’ shall be assessed as a proper allocation in accordance with the prosecution and defense functions.
More discovery – Providing summaries of discovery, rather than discovery itself
Another complaint from the defense is that the government intends to provide the summaries of the discovery to the defense, rather than the discovery itself. It might be problematic since under Rule 505, the military judge is not able to reconsider the summary, even if they contain mistakes or inconsistencies. The government argues that the military judge serves as a controlling role in dealing with those classified information.
My thought on resources question
I do not have any first-hand knowledge about how much resource has been provided to the defense, and for the government. For the numbers of attorneys appearing in the courtroom they are quite similar. While it is also true that this cannot be evaluated by quantity. Especially for discovering classified information, I can perceive that the defense is pushing against not only the adverse party, but also the whole bureaucratic system. In any sense, in September we may get a better roadmap from the government. And at that time we could see how it goes.
Defense complains about changing security policies at GTMO
The very last thing at the end of the day is also worth noticing. Mr. Kammen (defense counsel) complained about the constantly changing security policy in the facility. He and another attorney have been rejected because of cuff links and earrings. He requests that a written policy should be made and get them noticed. The court made a note about it. Obviously, this issue just adds some pepper on the defense’s perception of Guantanamo Bay, a ‘trust-free zone’, for Mr. al Nashiri, and for the defense team. And this perception has been mentioned several times during Mr. Kammen’s submissions.
Classified hearing; Court adjourns
After this the court moves on to 505 session, which is a close session.