Below the jump is a report from observer  Eric Carpenter, Professor of Law at Florida International University, on the commission hearings in the case of Al-Rahim al-Nashiri on November 5 and 6.

Other observer reports can be found in our Military Commissions category.

In a related development, this week’s scheduled oral argument before the Court of Military Commissions Review in al-Nashiri (discussed in TWIMJ) was postponed by order of the D.C. Circuit, which granted a stay in the case. Wells Bennett has the details in this post at Lawfare blog.  Thanks to Zee for helping draft this post while I had technical diffculties.

United States v. al-Nashiri

Article 949d Session, November 5-6, 2014

Al-Rahim al-Nashiri is accused of being the mastermind of the bombing of the USS Cole in 2000 that killed seventeen American service members as well as the attempted attack on the USS The Sullivans and the completed attack on the Limburg oil tanker.  This motions hearing lasted a day and a half.  On November 5, 2014, the Commission took up AE 181G, AE 205BB, AE 284 and 284L, AE 286B, AE 314 and 314C, AE 315 and 315B, AE 320, and AE 321A.  On November 6, 2014, the Commission took up AE 277 and AE 319.

The motions fell into three categories: attempts to reargue earlier motions; substantive motions; and attempts to shape upcoming motions.  While everyone – family members, prosecutors, defense counsel, and the military judge – expressed concern about how long it is taking to get this case to trial, this session did not seem to move the case forward very much.

Category 1: Rearguing Earlier Motions

This first category relates to the change in military judges.  In early July, 2014, COL Pohl excused himself from the case and detailed COL Spath as his replacement (AE 302).  When he left, COL Pohl still had not ruled on several motions that had been argued before him.  The defense filed a motion (AE 305) to reargue all of those pending motions before COL Spath.  COL Spath decided that he would rule on the pending motions after he reviewed the pleadings, the evidence previously submitted, and the oral arguments.  He said that he would not allow re-argument unless he had questions or needed clarification after conducting those reviews (AE 305D).

The defense filed a few motions to re-argue and the legal test that emerged resembled the basic tests for reconsideration of a previous ruling (remember, COL Pohl had not issued rulings on these motions).  Judge Spath stated that he would allow re-argument if either new facts arose or the law changed between the time of the original motions hearing but before he issued a ruling on those motions.  During the current proceedings, the parties would often stray into the merits of the underlying issue (and so, essentially, reargue it) although the narrow issue was whether the military judge would allow the defense to reargue the underlying issue.

AE 181G

In November, 2013, the defense filed a motion to dismiss the capital referral related to any charges where the accused would not be granted access to classified evidence (AE 181).  Since the original argument, the government had attempted to give the defense more access to classified evidence by using a “DISPLAY ONLY TO THE ACCUSED” marker.  The defense argued that this was a new fact that would require a new motions hearing, while also arguing that this solution still did not solve the underlying problem and expressing concerns that the marker was not legal and so the government might later seek sanction against them for mishandling that material.

The military judge told the defense that it was a stretch to think the government would tell them to rely on this marker (see AE 281 and associated pleadings) and then prosecute them or remove them from the case because they did.   The military judge also asked the defense how these actions by the government could be construed as a new fact related to that earlier motion.  Here, the government was just trying to improve the accused’s access to classified material  The military judge commented that this seems to fit the adage, “No good deed goes unpunished.”  From the colloquy, it appears that the military judge will deny the defense request to reopen the earlier motion.

AE 205BB

In January, 2014, the defense filed a motion to abate the proceeding until the accused received adequate medical care (AE 205).  There, the defense argued that that the accused suffers from PTSD and depression because he was tortured by the CIA.  The basic legal test was whether the government had shown deliberate indifference to the accused’s medical needs.  That motion now has a long tail of pleadings associated with it (the military judge’s ruling on this motion to reargue will likely be EE).  In AE 205BB, the defense sought to re-argue the underlying issue and to have a new evidentiary hearing.  The defense based this request on a new fact (the President’s recent statement that “We tortured some folks”) and recent case (Hatim v. Obama, 2014 WL 3765701 (D.C.  Cir. 2014)).

As for the new fact, the military judge asked the defense how he was supposed to use the President’s statement and the defense response was that the President had access to all of the available information and he came to the conclusion that “some folks,” to include the accused, had been tortured.  The defense continued that the doctors at GTMO have access to similar information (or should have access to it), should recognize that the accused had been tortured, and so should provide him appropriate medical care for the medical issues related to that torture.  The government argued that the President’s statement was not a new fact and that the military judge had a complete factual record from which to make a ruling.

As for the new law, the issue arose because the government mentioned Hatim in passing during an earlier hearing.  In the defense pleading, the defense stated that Hatim was not applicable to the current case and wanted oral argument about that in front of the military judge; however, at the hearing, the defense argued that the Hatim was potentially persuasive authority – and so should be able to argue that before the military judge.  The court in Hatim analyzed other decisions related to prison conditions at GTMO using a similar, deferential test, and the military judge indicated that he thought this case might be useful when solving the current problem.

In addition, in the earlier proceedings, COL Pohl limited the testimony of two medical witnesses.  The defense also raised that issue, essentially asking for reconsideration of COL Pohl’s earlier rulings.  The military judge questioned the defense on this, asking them whether the information that COL Pohl kept out would be useful in determining the ultimate issue of deliberate indifference.

The military judge also made a comment that it could be possible that the government had shown deliberate indifference to the accused’s medical issues in the past, but no long was.  In that case, he wondered aloud what might be the appropriate remedy.  That comment suggests that he needs clarification on the underlying issue and so might grant the motion to re-argue and might seek more evidence.

Category 2:  Substantive Motions

AE 284 and 284L

In June, 2014, the defense filed a motion (AE 284) to allow the accused to Skype with his elderly parents.  The defense originally argued that this communication was needed to help treat the accused’s PTSD.  The legal test was whether the government had shown deliberate indifference to this medical need.  In earlier hearings, medical witnesses testified that the communication would be helpful for treating the accused’s PTSD but no one testified that the communication was necessary.

This original motion generated a significant amount of pleadings.  In  the interim period, the Department of Defense issued a directive on the treatment of detainees (DoDD 2310.01E) which included a provision that stated, where practicable, detainees should be allowed to exchange letters or have phone calls or teleconferences with immediate family members.  The commander at GTMO then determined that it would not be practicable to allow high-value detainees (HVDs), like the accused, to have phone calls or to Skype.  This decision generated the defense’s latest pleading, AE 284L.

At the start of this hearing, the defense made a surprising announcement: the accused had just told them that the day before, someone in the detention facility told the accused that he would be allowed to make a time-delayed phone call to his parents.  This caught everyone by surprise, to include the government.  (The government was ready to argue that making this phone call was impracticable.)

The military judge continued with the proceeding and indicated that the defense would not prevail on the first theory – that the government showed deliberate indifference to the accused’s medical needs by denying him the chance to Skype.  He indicated that this was because the medical witnesses did not testify that the communication was necessary for treatment – they only testified that it would be helpful.

The military judge did say that he would hold an evidentiary hearing on the second, new theory:  that the commander’s decision that it was impracticable for HVDs to make these communications was “unreasonable” (the military judge used that language, rather than language like “arbitrary or capricious”).  The military judge told the government that they would have to produce someone with knowledge about the decision as well as the person who told the accused that he would be allowed to make a phone call.

The next day, the government told the military judge that the accused would be allowed to make a phone call, probably by the end of the year, once some technical issues were worked out.  Both parties agreed that the motion could be held in abeyance.

The whole thing was pretty bizarre.  The day before the very hearing where the prosecution was going to oppose the defense request, someone from the government told the accused that he was going to get to communicate with his parents.  And that was not a mistake – he was actually going to be able to communicate with his parents.  At the very least, it appeared that the prosecution team and the camp commander were not communicating.


The next substantive motion was a defense motion to withdraw the capital instruction because there would be no military necessity in executing the accused (AE 286B).  The defense argument was that the four common law preconditions for military commissions, described by Winthrop and discussed by the Supreme Court in Hamdan I, stand for the proposition that military commissions can only be used by an army that is in the field, that captures an unlawful enemy belligerent, and that then delivers swift punishment.

Here, the defense argued, the time delay from capture to trial was so long that death could not be a necessary punishment.  The government and the military judge pointed out that Winthrop’s four conditions only apply when there is no other statutory guidance and for these commissions, we have statutory guidance.  The military judge also commented that those four conditions apply to the legitimacy of commissions at the macro level, not to the individual commission’s decision at the micro level.  He also noted that everything the defense just argued would be highly relevant during the extenuation and mitigation case.

While the military judge clearly forecast that he would rule against this motion, he did make a couple of interesting side comments.  He mentioned that there might be other motions where taking death off the table might make sense, like motions related to the accused’s conditions of confinement or pretrial punishment (where torture would fall into one or the other).  The judge stopped there, but the basic argument is that any remedy awarded for pretrial punishment or unusually harsh confinement conditions must be meaningful.   The usual remedy for these issues is sentencing credit, but for life and death sentences, sentencing credit has no meaning.  Therefore, another remedy (like converting a life sentence to a term of years, or a death sentence to a life sentence) might be required.

AE 277

The defense filed a request for an MRI in June, 2014 (AE 277). The defense theory is that the accused suffered brain damage as a result of the torture he received by the CIA and the defense wants an MRI to see if that imaging will reveal brain damage.   The defense also advanced a theory in its pleadings that the MRI was needed for medical care but did not focus on that during the oral argument (the government focused exclusively on that theory).

The defense styled the request under the production rules found in R.M.C. 703.  This rule requires production at trial of evidence that is necessary, relevant, and noncumulative.  However, the request probably should have been made as a request for expert assistance, where the expert would create this evidence for the defense and which the defense may or may not use at trial or even have disclose to the government (see R.M.C. 701(g)(4)).

The government argued that the defense had not met its burden to show facts that satisfied the necessity requirement, using a hybrid of production rules and expert assistant rules.   The military judge responded that he had access to facts within ex parte briefs and suggested that these facts would satisfy the defense’s burden.

The military judge made it pretty clear that he would grant this relief, noting that defense teams in capital cases have a duty to investigate plausible leads and citing instances where appellate courts have found ineffective assistance of counsel when the defense counsel did not pursue similar issues.  The military judge pushed the government on those points, stating that he wanted to make sure that the Commission did this right the first time but the government would not concede the point.

AE 320

The last substantive motion was a defense request to halt the process of authenticating the transcripts of previous hearings (AE 320).  Administrators in the Office of the Convening Authority sent notices to the defense that it was going to authenticate the transcripts for the period that COL Pohl was the presiding judge.  The administrators said that they were going to start this process this October.

The defense told the military judge that they could not stop what they were doing to focus on these transcripts, particularly with the current appellate activity in the case.  The government told the military judge that they had been continuously inviting the defense to authenticate the transcripts over the last few years but that the defense had not taken them up on those invitations.  The military judge asked the government if the government ever gave the defense official, formal notice that they needed to authenticate any of those transcripts and the government said that it had not.  The military judge then asked if there was any reason that these transcripts needed to be done now, noting that COL Pohl was going to be available for the foreseeable future.

The military judge then transitioned into a general discussion about the bad relationship between the two parties.  He said that this was an issue that he should not have to get involved with.  He encouraged both parties to work in good faith to resolve problems like these and cited examples where both sides could have taken small steps to solve small problems.  He indicated that he would not issue an order on this motion and that he expected the parties to work this out.

Category 3: Shaping Upcoming Motions

AE 314, 314C, 315, 315C

In AE 314, the defense moved to suppress the accused’s statements to federal law enforcement agents and to agents at his Combatant Status Review Tribunal (CSRT).  The defense theory was that the government did not present the accused to a magistrate in a reasonable period of time after he was arrested or detained on a federal crime.  In AE 315, the defense moved to dismiss the accused’s statements because he was not given Miranda warnings.  In AE 314C/315B, the defense requested production of certain witnesses for the evidentiary hearing.  That issue – production – was argued at this hearing.  After the military judge rules on this, the parties will still likely argue on the underlying issues at a later hearing.

The defense argued that it needed to present evidence through these witnesses because the motions were mixed questions of law and fact.  Toward the presentment issue, the defense theory appeared to be that there were some periods when the accused was being detained for a federal crime, like those periods when he gave those statements.  According to the defense, if he was being held for federal law enforcement purposes, then he would be entitled to presentment.  Therefore, the defense needed to call witnesses to prove why the federal government had detained the accused.

The government argued that this was purely a legal issue.  According to the government, presentment only applies when either a person is detained on a federal crime (and here the accused was only detained on military authority from the time he was captured until he was charged) or a person is charged with a federal crime (and here the accused was not charged until 2011, when he then received the benefit of the presentment provisions found in the Military Commissions Act).  According to the government, no facts are necessary to solve this problem so no witnesses are required.

The military judge asked the defense what the witnesses could say that would help him solve the problem.  The defense said that they would help the military judge decide whether the federal government tried to circumvent the rights that would normally attach if the accused had been tried in an Article III court.

On the presentment issue, the government’s purpose does appear important.  If the accused was detained for a federal crime at some point prior to 2011 (and in particular, at the time the statements were taken), then presentment rights might attach.   And if the federal law enforcement agents should have been driving the accused to a magistrate rather than interrogating him, then those statements might be excludable.  (The statements he gave to the CSRT would be a further stretch).  If, however, the accused was held only for military purposes, then presentment would not attach.  Why he was being held seems to be a factual issue.

The arguments were framed the same way with the Miranda issue, with the military judge asking the defense whether Miranda applied to interrogations of unlawful enemy belligerents and the defense replying that Miranda did, depending on the government’s purpose when asking those questions.  Again, purpose would be a factual issue.  For both issues, if the military judge decides that the government’s purpose for detention or for questioning does not matter for presentment or Miranda, then he can solve this problem without additional evidence.

In the original pleadings, the defense did not present the voluntariness of the statements as a discrete issue – the issues were whether presentment rights and Miranda apply.  Subsequent pleadings related to AE 314 and 315 did reference voluntariness but that issue was not brought up in this hearing, other than the military judge making comments that some of what the defense was arguing could be argued in future motion to contest the voluntariness of the statements under 10 U.S.C. § 948r.

AE 319

The government provided notice that it intends to introduce 72 hearsay statements (AE 166, 166A).  The defense then filed a motion to exclude those statements (AE 319).  The military judge limited the scope of this hearing to the mechanics of that upcoming motions hearing – one that both parties acknowledged would be four to six weeks long.  At this future hearing, the parties will litigate whether the government has satisfied the 10 U.S.C. § 949a(3)(D) hearsay requirements for each of these 72 statements.  In many ways, this will be a rehearsal for the real trial.

According to the defense counsel, these hearsay statements are central to the government’s case.  In general, the statements were taken by FBI agents from Yemeni citizens in 2000 and 2001.

The government provided notice that it planned to call seven witnesses.  The defense requested the production of over forty witnesses, including the seven that the government intended to call.  The government denied the defense request for all but those seven.  The military judge asked the parties go back and relook the defense list and find some reasonable places to agree.  He then told the defense to file a motion to compel production of witnesses if the defense needed to.  The military judge indicated that he would like to take that issue up at one of the next hearings, with the expectation that the evidentiary hearing would occur in February.

The defense told the military judge that it still needed to conduct a proper investigation before this hearing could occur.  The defense theory is that several of the hearsay declarants were held in inhumane conditions while in Yemeni captivity and may have been tortured, and so their statements are unreliable and the declarants’ will had been overborne.

The defense stated that it still needed discovery from the government related to the circumstances under which the statements were taken.  The defense said that it needed the government to provide any evidence that the Yemeni government or government officials were complicit in the Cole bombing; evidence about the treatment of the hearsay declarants while the declarants were in Yemeni custody; and any evidence that the Yemeni government had interfered with the American investigation.

The defense stated that when it tried to interview two of the government’s witnesses, members of the government would direct the witnesses not to answer certain defense questions.  And, the defense asserted that the discovery that they had received, to include the actual statements, was still heavily redacted.

The military judge stated that the members of the prosecution team were officials of the court and he expected that they would comply with their discovery obligations.  He then told the defense to file any necessary motions to compel discovery for this motion or to produce witnesses.  Based on the current relationship between these parties, that will likely be the next step and those motions will likely be litigated in the January hearing, making a February hearing on the substance unlikely.

AE 321A

In AE 321, the government filed its proposed member questionnaire.  In AE 321A, the defense filed a request for an extension to file its response.  The military judge noted that the deadline for the questionnaire was based on a trial order that was now unrealistic and indicated that he would issue a new order with new deadlines, and that the deadlines would be after the evidentiary landscape was clear.  He also encouraged the parties to arrive at a 90% solution before approaching him to resolve any conflicts in the questionnaire.

One Response to “Report on Military Commission hearings in the al-Nashiri case held November 5-6, 2014”

  1. RKincaid3 (RK3PO) says:

    I followed the LAWFAIR link and after reading the article, I followed the links to the briefs.  To me, the most interesting coincidence is the timing of one of the issues that has been discussed on CAAFlog quite a bit over the last year or so: the fallout from the Janssen case and the appointment of “Mr.” Soybel by someone other than the President vice “COL” Soybel by someone other than the President (the former is limited to the President and the latter has been statutorily delegated to a subordinate of the President).
    The issue: the “appointments clause” and the debate over how and when appointments may be done legally and what the consequences of improper appointments are and should be.
    I wonder how principled (strict) the courts will be when interpreting the “appointments clause” (or any other substantive right or limit upon government) when a particularly vile and unpopular accused is involved.  Arguably, the American justice system operates at its finest when it applies the protections of the law and rules of procedure consistently—even…no…especially—when the beneficiary of that application is one whose conduct and deeds renders them the least deserving of those legal protections.
    This will be fun to watch–as well as educational and informative.  Our courts–and how they operate–says more about our national values and principles than does just about anything else.