As the NGO group broke down the morning’s activities over Subway sandwiches, we were all surprised they got through three of the motions that morning. As we looked over the docket, we guessed that two more would be done that afternoon, and things would likely wrap up by Thursday. One motion in particular (AE 120D) was rumored to possibly take a whole day to argue. We expected a much slower pace in the afternoon. Not only were we dead wrong, but I think things could have gone even quicker.

Will al Nashiri come to court this afternoon?

As I took my lucky number 23 assigned seat, I was curious if al Nashiri was going to opt to show up for the afternoon session. At the outset of any round of hearings, he must be present for the judge to explain to him his right to be present, or not be present. Earlier, we got to hear him speak, in Arabic, that he understood that right. According to some of the observers who have been to a number of these hearings, the defendants will often opt out of coming back after the first mandatory session.

Within 3 minutes of sitting down, al Nashiri was escorted in and he took his place at the defense table.

As with the morning session, he spun around in his chair and casually looked across the gallery. As his gaze swept across the room we were in, I felt our eyes meet, for a passing moment. There appeared to be no ill will or flames of evil in his glance, just curiosity. After he made a similar check in the morning, I asked our escort if we were behind a one-way mirror. The answer was a resounding no, but he noted that the glass was sound proof. Judge Pohl entered shortly after our arrival and he quickly got things underway.

Motion AE 267B

The first motion of the afternoon was AE 267B, where the defense was moving to allow the defendant the option to choose whether he wanted a trial by a single judge or a trial by jury. I found this motion flawed on so many levels, and as the defense made their arguments, I found myself trying to reason why they would want this option. It was frustrating to me that I could not concentrate, because the Navy officer making the argument had the best form and delivery out of any of the eight various people who gave arguments. But substantively, I just could not grasp the logic of the motion or his points. The crux of their issue was with the fact that military commission trials have a jury of “members”, all of who are officers (typically higher ranking ones) in the armed forces. The convening authority selects a pool and they are sent down for voir dire. The defense argued this inherently built in unacceptable levels of bias, noting that nearly all the officers would be, like the Navy lawyer himself, a young commissioned officer when the Cole bombing happened. He noted that many of them may have known people on board or shaped strong opinions about the defendant at the time. The judge questioned whether the decision to opt out of a jury trial would come before or after voir dire. I was so caught up still trying to figure out why this motion was being made, I forgot to note the defendant’s answer. What really hung me up was that the whole point of voir dire and each parties’ ability to strike members is to eliminate bias. Claiming other measures needed to be taken seemed to short circuit this control for bias. Furthermore, a single person, instead of a group of twelve, would seem to be much more capable of bias. Finally, I could not even begin to understand why in a capital case, when a unanimous decision of all twelve members is required for the death penalty, the defense would even want the option of reducing that number of votes to one. “They must have a very high opinion of Judge Pohl,” I remembered thinking as the prosecution prepared to make their argument. I was eager to hear their side of the motion. At the conclusion of their argument, everything became completely clear. This motion was nothing more than a defense tactic to attempt to trip up the court and make the whole proceedings invalid. The MCA section 949m specifically states that a jury trial must be given. Furthermore, it notes a death penalty cannot be instituted except by unanimous consent of a twelve member jury. If the judge gives the defense the ability to opt out of this, it would directly contravene the statutory authority and Congress’ explicit intent, thus opening it up for an appeal and invalidation of the trial. Furthermore, the commission’s authority over cases has (according to the prosecution) five necessary parts, including a trial by jury. Allowing the defendant to opt out of a jury would undermine and invalidate the commission’s jurisdiction over the case. After the prosecution finished its argument, which was succinct and well articulated, it became clear to me that this was a defensive tactic to get the proceedings thrown out on a technicality later down the line. Regardless of where you stand on the validity of the commission to try the accused, I am happy the prosecution snuffed this trick out and will likely succeed in averting a technical dismissal. Nothing would be more annoying and a deterrent to some level of justice than the success of such a move. I am very glad we had two prosecutors with us on this trip, because afterwards I was asking them about such tactics. They confirmed that in their long years of experience, they have seen many, nearly identical, ploys made by defense teams. Since the prosecution was rather brief and did not even give a reply argument, Jude Pohl was able to move quickly to the next motion.

Motion AE 270

The next item was AE 270, which dealt with the defense’s request for remedies for the failure of the prosecution to give it evidence. This motion was pretty short, and along with the one that followed it, appeared to be the most easy, simple issues on the docket. They were the ones I was hoping to get at the outset to get me warmed up. The defense was concerned by the fact that certain evidence was produced to them recently that should have been produced earlier. A previous document (AE 045) gave notice to the court that all pertinent evidence was turned over to the defense. However, more evidence was recently found and the defense sought remedies to prove to the prosecution the court would not tolerate the dragging of its feet in releasing material. In perhaps a slight break in neutrality, Judge Pohl asked “And what remedy would you have me give you?” I definitely caught a sign of frustration in his voice. The defense did not seem to have a specific remedy in mind, or at least her answer was so convoluted I could not decipher it, but after this question, the defense council appeared to lose her place and stumbled to get back on track. The prosecution appeared to uncover another common defense tactic, and its arguments mirrored such a sentiment. As he noted, the prosecution has a continuing duty to find and produce discoverable material, and one cannot simply claim anything produced after a certain date is a violation. A continuing duty necessarily means they will be producing things all the time. However, this situation is certainly more unique than most, and while I am not sure the judge should issue remedies here, a regularly filed motion similar to this one may be a positive thing for the process. There is no doubt the various branches of the government are not in sync with what is happening here in GTMO. Some parts are actively against it and failing to cooperate. Some parts are trying to subversively control it. One part, the prosecution, is trying to make it happen. With the prosecution being pulled by so many different strings, it is certainly important to “hold their feet to the fire” as the defense said, to show that this court will not be toyed with or manipulated. While I would be shocked if the defense prevails on this motion, given the historical nature of the proceedings and prime setting for government conspiracy, this sort of motion is a healthy part of the process of justice.

Motion AE 272

Motion AE 272 served as the penultimate motion in this round of hearings. It was the only motion that was actually uncontested. The defense noted how the FBI had approached and caused members of the defense team in the 9-11 hearings to sign non-disclosure agreements, which represents possible illegal contact and possible conflict of interest problems. Supposedly, such contacts have also been made in this case, and the defense is seeking to have the court compel any defense team members to tell their team, or the court, if they have been contacted. The prosecution had almost no argument and agreed that such an order should be made. Furthermore, he was going to look into the possibility that such contact would represent a conflict of interest.

Motion AE 120D — The “big daddy” (request for reconsideration of AE 120C)

As the last motion came to quick resolution, all my fellow observers and I stared at the docket we were given. This leaves only AE 120D, the rumored big daddy of all the motions to be heard. Surely, the judge was not going to try to start it so late into the afternoon. But, without hesitation, he called the prosecution forward to address its motion.

General Martin — What were the underlying issues?

For the first time at the hearing, General Martin proceeded to the podium. He looked very impressive with his salt and pepper hair, very calming demeanor and speech pattern, and massive display of colors, medals, and badges on his uniform. His motion was a simple request for reconsideration of the judge’s previous order on AE 120C. At the outset of his argument, he asked to display things on the monitors, the only person to do so in the hearing. I was even more intrigued. What followed, was nothing short of a disappointment.

For the better part of the argument, I failed to grasp the underlying issues and what specifically he was looking to have done. It was made even more frustrating because his reputation is one of a very smart man, but his argument was either too smart for me, or fatally disjointed. Once the defense came up, I began to form a much better view of the issues. The order the prosecution was seeking to have reconsidered compelled the it to turn over, in discovery, information on the CIA’s RDI (Rendition, Detention, Interrogation) program. The prosecution argued that the order was too vague at parts in order to properly comply with it. Furthermore, it argued that a change in facts results in a need for the judge to reconsider the motion under the new set of facts.

The facts the prosecution relied on is the ability of the defense to now be able to show the defendant documents about events that happened to him. I think this basically means they are allowed to show him photos or documents related to his confinement or torture.

The defense countered that procedurally, in order to properly grant a motion to reconsider, there must be a change in facts or law from when the order was given. Here, they argue, no such law or fact is given. No new law was given, but the prosecution did mention in passing the fact that the defense has the ability to show things to the defendant. However, it seemed like this was not actually a new fact, and therefore, this motion fails on procedural grounds. Even if it was valid, the defense made an interesting point that part of the reason they needed (and he thinks they were given) access to the RDI program material was that they could not be effective counsel, as required by law, without it.

Stripping away the material now, would mean they could not make an effective defense. After a very long-winded argument and reply, I ultimately think the defense will prevail on this motion. Discussing this motion afterwards with my colleagues, I noted my disappointment in the General’s argument. However, they noted something I had not considered in that he had a terrible argument to begin with (they noted the apparent procedural flaw), and this can certainly reflect on how the argument is given. One person noted he was the one who likely gave this argument because his status might lend extra weight to the issue.

End of the hearing for Observers.

At almost exactly 4:30pm on the first day, our experience in the courtroom came to a close. We all could not believe it was over. We thought there were many occasions when the judge would end the arguments for the day, but he kept powering through, taking only a 15 minute recess in the middle. Despite our expectations of a longer hearing, things could have been even shorter. One of the most distinct differences I noticed in the commission proceedings compared to regular courts was the lack of a timing mechanism. There were no green-yellow-red lights or countdown timer. Attorney’s were given free rein to talk as long as they wish, which is never a good thing I would think. Ultimately, that proved true only in the final motion, where the defense seemed to massively overstate, restate, and reiterate points. We all laughed afterwards that there were at least four or five times we thought he was going to end it, only to ramble on about something else.

Judge Pohl – Strategies?

One of our escorts made a very good point noting that he thinks Judge Pohl recognizes the historical nature of this proceeding, and the fact that it is likely to be appealed until the cows come home. He thinks the compilation of as complete of a record as possible can only serve to help such situations. Through this lens, I can certainly agree. However, after reviewing all the attorneys’ arguments in my mind, I noted how the lack of a time limit appeared to hurt them because on at least three separate occasions, I noted that the attorney was very redundant. Ultimately, I think the lack of some time limit makes for much more disorganized and loose arguments. Having a time limit allows you to focus on what’s important and organize it in a way that effectively makes those points. After watching a day of hearings, my immediate reaction as to what to change would be to institute time limits, even if they are more than would be typically necessary.

Meeting with General Martin

After the hearing, we were lucky enough to schedule a sit down with General Martin almost immediately after the hearing. We filed into the media room where we sat in a nice little circle for a round table discussion with him. For nearly two hours, we were able to ask him questions. I particularly enjoyed the handful of questions he took from our prosecutors because it really helped to harmonize the military commission process with the typical court process. They noted to him multiple different procedures, rights, tactics, and issues that the sides addressed that are mirrored almost exactly in domestic courts. His reputation for intelligence was confirmed as he easily cited to both the military commission and domestic rules that mirrored one another, and noted the differences in terms and usage.

He came off as someone who had a deep understanding of the system, a recognition for its flaws, an openness on how to make it better, but ultimately, a zealous belief that it is the best system currently for these trials. I was particularly stuck by his entertainment, and out loud thinking, of better solutions to people’s perceived flaws in the system being used to try al Nashiri.

He referred a couple times to the Nuremberg Trials and Yugoslavia and Rwanda tribunals.

I was eager to ask him to what extant he looks to those trials for guidance or indications of how to proceed in a military tribunal, which one day will likely hold the same historical significance. However, he was focused on the other side of the room and then had to leave. Two hours was a generous amount of time, and I was glad he took the time for us.

Dinner at Caribbean Jerk House

After he left, we piled into the vans for a trip to the Caribbean Jerk House for a late dinner. I am pretty sure the two guys running the place did not care what we ordered They grabbed something from the bins, cut it up and served it to us. Despite half of our orders being wrong, we were all so hungry, we were going to mimic Judge Pohl and have a power session on some jerk flavored chicken and ribs.

First Day of my round of the al Nashir hearings – 28 May 2014

I just finished the first day of al Nashiri hearings down here in Guantanamo Bay, and it was a power packed session. Over the course of three days, they had scheduled seven separate motions, as well as a couple closed sessions for discussions related to top secret material.

I was looking forward to a couple of the lighter, easier motions to get me started, followed by some of the more contentious and complex ones to come later in the week. However, they were able to power through all seven motions today, leaving only one closed hearing in the morning. As things currently stand, my time witnessing history has come to a close, and it took only five hours. But, boy were they a loaded five hours, and it all started with a bang…

Rise and shine – Guantanamo Bay style interrupted by an explosion!

The first motion of the day was scheduled at 9am, but was to be conducted in a closed session due to security concerns. This meant we got to “sleep in” until 8am, when the trumpets blared over the loud speakers the National Anthem. Everyone was certainly happy for a few extra minutes of shut eye after arriving promptly at Andrews Airforce Base by 6am the day before.

We assembled at 8:30am outside our tents, and started walking with our escorts over very shortly thereafter. The two minute walk to the courthouse was interrupted by a massive explosion.

The shock wave shook the ground and pounded our chests with the force greater than any fireworks show I have ever witnessed. Our escort, whom I was walking next to, was wide eyed and looking around at the military personnel for explanations. They too were confused. We continued into the courthouse checkpoint very leery of what to expect.

The guards conducting the security check immediately asked us what was going on. Having seen a large plume of white smoke arising down by the water line, I told them about it. They all had very concerned looks on their faces, but continued to shuffle us through the security checkpoint. Once we were in the waiting room to go into the court, the guards there were all talking about what happened.

Our escort and I were able to find out that supposedly there was some unexploded ordinance that was being control detonated. That was reassuring. Nothing says perfect timing like a huge explosion ten minutes before an alleged terrorist is brought into a courtroom. Suddenly, two smaller booms rocked the lobby. Everyone looked around, first at the guards, and then the guards at each other. Despite the fact that they were wearing wires (like you see secret service guys wearing), they had no clue what these explosions were. But, it was time to get into our assigned seats, so they showed us into the viewing room.

In the Guantanmo courtroom

Each person attending the viewing has an assigned seat. I was number 23, the third row back, and seated three seats from the left end. I was looking directly at the defense side. Not even a minute after sitting down, the detainee guard unit brought in al Nashiri. He sat directly in front of me.

Court was called to session and the prosecution had an addition to their team that was made known at the outset. A civilian attorney was joining them. The defense took the opportunity to reiterate to the court its outstanding motion and belief that the defense is at a distinct resource disadvantage. They noted how the new addition was the twelfth member of the prosecution, while the defense is stuck at five, and the judge is dragging his feet on allowing a sixth.

With these preliminary issues noted in the record, the judge turned to the first motion: AE 206.

Motion AE 206 (and more explosions rocking the courtroom)

The first motion of the day was from the defense.

This motion is looking to compel the prosecution to produce a Senate Select Committee on Intelligence report on the CIA RDI (Rendition, Detention, Interrogation) program. This motion was one of the more interesting ones because it implicated a number of issues. First, the prosecution has an ongoing duty to disclose evidence to the defense, and this report contained a number of details regarding al Nashiri’s treatment while confined. The defense argued the report contained a number of items, which would be extremely valuable to their defense, and the prosecution’s failure to produce the report warranted an order to compel.

As a preliminary matter, Judge Pohl asked if he was even capable of compelling the Senate to produce such a document.

I was surprised that the defense did not spend more time on their answer, beyond a mere “yes”. The judge seemed quite concerned he would not be able to compel a separate branch of government to produce such a document, but neither the prosecution nor defense, when asked directly by the judge, elaborated on authority or law, which pointed to his ability to compel disclosure.

Despite my novice nature in this arena, I would have certainly prepared authority to back up that very likely question. Moving forward, the defense focused on the probative value of the RDI report to their case and why the full report, and not just an executive summary, was needed.

In the middle of his argument, the room literally shook with another explosion. No one even flinched. The CCTV feed was even shaking considerably. I wonder if those at the Fort Meade location even knew what rocked the camera.

The defense counsel finished his argument shortly after this fourth explosion.

His presentation was the most spirited and aggressive advocacy we saw all day, hands down. His colorful language included terms like “fantastical treatment” and his demeanor was more like a basketball coach pleading his case before a referee who just called a terrible foul. Due to the issue of the topic, discovery of an item highly relevant to the defense, I can understand the advocacy/frustration in his argument. I wonder if his enthusiasm will change when he has to argue al Nashiri did not kill 17 sailors.

The prosecution’s attorney on this issue was the polar opposite. She was extremely tight, very formal, and hardly ever showed emotion, although there were times you could see she wanted to maybe raise her voice or use more pointed language. The government argued it has been seeking all material to the best of its ability and that the underlying information that the report was based on has already been given to the defense. I found this to be an interesting point since the report’s sources would seem more important than the report itself. However, I found it even more interesting that the prosecution overtly dodged the judge’s direct question on whether they have asked the Senate for the report.

In terms of good faith in trying to produce discoverable material, it seems a “yes” answer is highly desirable, but her utter lack of acknowledgement of the question and very political answer gave a very strong impression that they have not even asked for the report yet. Even if the report does not contain something the defense already has access to, this answer made the government look bad. This could be why in the middle of her answer, General Martin himself, the Chief Prosecutor, called the attorney over to the table. He conferred with her for a moment and she returned to give the court a future date, June 20^th, on which the prosecution will know in more detail when and if the report will be available.

This was pretty much how they left the discussion of motion AE 206.

Motion AE 013N

The next motion was AE 013N, which asked the judge for permission to release secret information to the DC Circuit for use in a habeas case filed there on behalf of al Nashiri. The habeas case was filed in order to assert the commission did not have jurisdiction over the matters at hand. Due to Protective Order #1, issued by the judge, no information is to be released without his prior consent. Therefore, the defense was merely looking to obtain his consent before having it sent to the DC judge. However, the information the defense sought to be transferred was related to al Nashiri’s confinement, which the judged questioned whether it was even probative and necessary for the DC Circuit’s habeas determination.

Defense acknowledged it was not directly related, but may serve to indirectly help his decision and that furthermore, it should be released to the DC Circuit now, in case he needs it, instead of having to come back later with this same motion if he asks for it. The prosecution noted Protective Order #1 specifically laid out the procedure for procuring release of secret information and that the current situation has not met those steps yet.

While the prosecution was making his arguments, two more explosions echoed throughout the courtroom. As with the other one that happened while court was in session, no one even paused. The prosecutor, this time a Marine JAG officer, made a very compelling case, and of the seven motions heard, I feel this is one of the two that were obviously won by one of the sides. Protective Order #1 appears to clearly articulate the procedure for getting transfer. It is to occur upon the need of the secret information, followed by an appropriate motion to compel its transfer. Here, the DC Circuit has not indicated the evidence would be necessary or relevant, and thus the transfer of the material now would seem like a waste, especially if they never use it. Given the secret nature of the evidence, the burden and cost of transferring something that is not even utilized seems excessive, and I would not be surprised to see Judge Pohl rule this motion is premature.

Motion AE266

The final motion of the shortened open morning session was AE 266, which was certainly the most uncomfortable of the motions discussed. I say this because the viewing room is populated by NGO observers, media, victims’ family members, and any base personnel that wishes to watch. I cannot even imagine what it must be like for the victims’ family members to come down and look the accused killer of their loved one in the eyes. Furthermore, I do not imagine they harbor a very kind view towards those tasked with defending him. This motion compounded these feelings when the defense team made direct mention to them.

The motion sought for the judge to disclose any inappropriate communications he may have had with government agencies (i.e. the FBI, CIA, or other secretive organization that might have a hand in a government control of this commission conspiracy) as well as communications he may have had with victims’ family members.

The defense noted the unique situation of the GTMO hearings; all the media, NGOs, defense teams, prosecution teams, court administrators, and victims’ family members fly down on one plane and live in relative close proximity. This means that inadvertently, Judge Pohl could have contact with one of the victims’ family members. As the defense attempted to delicately articulate how such contact would be inappropriate (and it would, per the 2009 MCA), I could not help but look over at the members sitting across from me. They were both hurt and shocked that they were being dragged into this, and possibly used as a technical excuse to let the accused walk from the commission.

While as a lawyer I understand the purpose and legitimate point of the argument, no matter how nicely he attempted to put it, it came off as cold and disrespectful, and it certainly made for an uncomfortable 5-7 minutes. None-the-less, prosecution was quick to note that it was not at all opposed to the judge disclosing all ex parte communications that would be cause for concern, and noted it does not believe any such actions have occurred.

The prosecution also focused on stating exactly where the line is between appropriate ex parte communications, which are outlined in the MCA, and those that are forbidden, also outlined in the MCA. At the conclusion, I feel like the judge did the best thing in noting he would make a written statement noting that no inappropriate ex parte communications have been made to a government agency. He then explained that while he may have said “good morning” to a victims’ family member at some point in a terminal, that he takes every precaution to avoid inappropriate contact and that so far, none have been made.

End of the morning session

This concluded the morning session of motions and the court adjourned for a little over an hour for lunch. As I checked out of the courtroom, I wondered if the afternoon would hold any more uncomfortable situations, one sided arguments, or explosive interruptions. Since it is getting pretty late right now, I will add the afternoon’s motions tomorrow in another post (Power Session Part II)