Today’s hearing starts at approximately the same time as yesterday. Again, the court staff checks with the interpreter during preparation.

Judge’s Comments

The first thing in the morning is Judge Spath commenting on AE305. He agrees that he would be the one ruling on the open motions. While he is going to do it on existing records, without extra hearings, unless the records are not enough to give a ruling. Then he mentions that the defense may file motions for reconsideration if there is any new fact occurrs. Next he comments on the resource issue discussed yesterday. Since there is no motion for that particularly, Judge Spath notices the defense that if they fail to get assistance from the Convening Authority, they may file motions to request in the court and the court would issue orders if necessary.

AE278 – Protocol for the Procedure of Execution

Then we move on to AE278, the defense’s motion to compel the Secretary of Defense to  publish protocol for the procedure of execution. Recognizing the case is still in constructive/evidentiary phase, Mr. Kammen focuses on the impact of protocol upon the jury. He mentions that the jurors are military members, and ‘killing people is part of the bill’ for them. Thus it is highly possible that the way of execution, rather than execution itself would be determinative to the jurors’ decision. If the way is cruel, the jurors may consider that ‘this is not the right way since we are not in battlefield’. Besides, Mr. Kammen argues that it is not rare that the rules are changing all the time. He mentions the security policy regarding cuff links again. Thus to get a settled protocol in writing, a court order would be necessary. On the other side, the government argues that the protocol is a matter of law, and not a mitigation element (not unique to the defendant). Thus it is not appropriate to talk about it to the commission members. Also, if the defendant is found guilty and subject to execution, that would be years later. It is not ripe to discuss this issue at this point. The discussion for this motion does not last long. 

AE279 – Additional Funding for Mitigation Investigator

Next motion is AE279, resource again. The defense is requesting additional funding for a mitigation investigator Mr. Assed to continue his work in Saudi Arabia, communicating with Mr. al Nashiri’s family and neighborhood. As the only person speaks Arabic and is Muslim (only Muslims can travel in Mecca, the home city of Mr. al Nashiri), Mr. Assed’s participation is essential for the mitigation investigation. The defense establishes their argument based on the cultural background, the language barrier, the social atmosphere in Saudi Arabia and argues that the additional 175 hours of work is necessary. Dealing with the fact that Mr. Assed has already been working on this issue for 400 hours, defense mentions that it’s not enough to a large extent due to the lack of proper resource. For example, their request for a female interpreter has been denied, thus they have to go on the trip without one, and later make another travel in order to fulfill the purpose. The government argues that it’s already 400 hours spent on one single person, and the resource provided to the mitigation team is considerable. Besides, the specifities provided by the defense is not enough to articulate the actual needs. It is noticeable that Judge Spath interrupts the government’s counsel several times, mentioning that this is related to the direct communication with defendant’s family. I think that Judge Spath is more with the defense for this motion. At the very end, he comments that since it’s a capital case, there will be more cost incurred. If the government chooses to go for it, those costs have to be accepted. I would not be surprised that Judge Spath rules for the defense. Again, I’m not able to assess the allocation of resource from a comprehensive point of view. But that female interpreter example is impressive. At least in that circumstance, it is indeed a difficult situation the defense is facing.

Classified Information

The next two motions, AE280 and AE281 all deal with classified information. In AE280, the defense is requesting the government to provide more specific markings in the classified document summaries, indicating what is classified and what is not, rather than marking the whole document as classified. The government argues that there is no legal authority to impose this duty, either in the DoD Mannual or in the Executive Order. And as a practical matter, if there is any inconsistency regarding the classification level between the summaries and the subsequent materials, a lot of more litigations will be followed. In AE281, the defense is requesting a guidance of how to handle those classified information to the defendant, Mr. al Nashiri himself. The defense concerns that without a clear and stable secrecy policy dealing with Mr. al Nashiri getting access to the classified information, it is practically difficult to predict what kind of behavior would be considered as leaking information. For example, what if Mr. al Nashiri goes back to his cell and tell other people about the information? In fact, no documents or agreement is for him to sign relating with his security clearance. The government argues that it has been confirmed that Mr. al Nashiri can use the summaries, and other materials. There should be no worries from the defense.

I could see that it’s a matter of trust at issue here again. The defense feels insecure and untrusted, that the government may use any behavior to preclude an defense attorney, to continue detaining Mr. al Nashiri and to impose negative impact upon the defense. Thus they are trying to get as much clear policy or guideline as possible, to ensure that they are complying with everything. In my view this concern is not unreasonable in circumstance. While the production for such document or policy is determined by the OCA, which is not subject to the direction from the government. Thus it is another thing we never know whether the defendant can get or not.

AE283 – Admissibility of Evidence

In the afternoon, the first motion is AE283. The government is requesting a hearing to determine the admissibility of photograph and video taken near the site of bombing as evidence. The defense is not objecting for such hearing, while emphasis that the government must establish solid ground for the admissibility. Being less complex, the discussion of this motion does not last long.

Yemen Friendship Agreement

Next, the court moves on to AE285 and AE306. These two motions are filed by the defense, arguing that applying MCA to Mr. al Nashiri (holding dual citizenship of Saudi Arabia and Yemen) violates the Yemen Friendship Agreement. Under the agreement, Mr. al Nashiri as a citizen of Yemen shall enjoy the full protection of laws and authorities of United States, according to the defense. The Yemen Friendship Agreement is a treaty and shall be the law of the land under the Supremacy Clause of the Constitution. And the Congress cannot pass law (MCA in this circumstance) to alter or limit it. Also, United States is exercising de facto control of Guantanamo Bay, thus the Constitution applies geographically. As for MCA, it limits several fundamental rights and only applies to non citizens. Thus, applying MCA to the defendant constitutes a violation of the Agreement. Judge Spath raises the question that is the Agreement made with a consideration, or applicable to the enemy combatants. In my view this is a question of whether there has been a fundamental change of circumstance which may invalidate the treaty in certain circumstance. Defense counsel argues that the Agreement is reaffirmed in 2004, and if then the President want to change or limit it, he should have done so. The government cites several prior motions and argues that this issue has been discussed. And the law controlling and protecting Mr. al Nashiri is MCA. Besides, the Agreement itself, as an international treaty, does not create private right, or private cause of action.

In fact I have been expecting more robust arguments for this motion. While the defense to some extent focuses on the different treatment Mr. al Nashiri is receiving, rather than bouncing back to the treaty law rebuttal the government made. Noticeably, this motion is one of those the defense trying to make constitutional challenges and get rid of MCA as a whole, followed by AE295 and AE296 – 301.

Constitutional Arguments

AE295 challenges MCA’s constitutionality base on its selective targets towards Muslim. The government rebuts that it is not the case.  MCA deals with those who violate the law of war. And it’s not targeting any religion particularly. Thus it is facially neutral. AE296 – 301 raises the ex post facto argument that the statute of limitation, which is five years, provided by Article 43 of the Uniform Code of Military Justice has passed, thus all the charges against Mr. al Nashiri shall be dropped. The government argues that MCA does not provide a statute of limitation, and the provision of UCMJ does not automatically apply. In addition, having no statute of limitation is consistent to the international criminal law practice.

These two sets of motions, especially the ex post facto arguments, are significantly shorter than I have expected.  These questions touch the basis of legacy/constitutionality of the MCA, as the controlling legal instrument here. Ironically, these motions seem to be less developed comparing with others. Maybe it is just acknowledged that these motions are less likely to work in the Military Commission anyway.

The court recesses. Tomorrow morning would be the end of this weeks’ hearings.