Al-Nashiri #7: Don't Fence Me In

Benjamin Wittes
Tuesday, January 17, 2012, 4:43 PM

By Benjamin Wittes & Ritika Singh

Published by The Lawfare Institute
in Cooperation With

By Benjamin Wittes & Ritika Singh

The court turns finally, in its last motion of the day, to defense motion AE026, which asks the court for meetings between defense counsel and an unshackled Al-Nashiri. Defense Counsel Richard Kammen says he wants to meet with Mr. Al-Nashiri unrestrained in a locked facility. The government, he says, should invest in a ten-dollar lock.
In order to properly understand their client, says Kammen, the defense lawyers need to understand the trauma he has faced. Kammen describes Al-Nashiri’s story and background, his torture and disappearance, and he asserts that it is “reasonably inferrable” that Al-Nashiri has spent most of his time since his capture chained and shackled. He says that the government has inflicted in an ongoing way abuse that qualifies as trauma, and much of the treatment to which Mr. Al-Nashiri was subjected was designed to induce helplessness in him. Kammen argues that many of these traumatic behaviors can be relived and reinforced through internal and external cues.
After listening to this for some time, Judge Pohl interrupts Kammen, asking what the relevance is of all of this--agreeing with the prosecution, which has objected, that Kammen has overstepped the line. Judge Pohl says that there is no factual predicate for any of Kammen’s statements in his motion. He says that there are many security reasons for the door’s being unlocked during their sessions. The door has to be unlocked in case guards need to get in quickly, for example. Judge Pohl states that courts traditionally give a lot of deference to the facility commander on such matters. Kammen says that there should be an exception for Mr. Al-Nashiri because of prior trauma. Judge Pohl says that there is no evidence of this in the record. Kammen argues that there has been no evidence of bad behavior on Mr. Al-Nashiri’s part, and during his arraignment, defense counsel was allowed to meet with him alone in a locked room. He asserts that the defense doesn’t feel at any kind of risk with Mr. Al-Nashiri. The lawyers believe that they can better achieve their goals with minimal problem for JTF-GTMO.
Trial Counsel Mattivi says that the defense’s assertions are unfounded. What kind of restraint a detainee needs is not the defense’s call to make, but one properly made by the facility commander. He argues that this is exactly the way these meetings take place in a federal facility--and that the defense also has the option of non-contact unrestrained visits. The government has made significant accommodations for the defense, he says, but the law is clear. The defense, he says, is asking the court to substitute its judgment for that of the commander.
Kammen says his experience in thirty-five capital cases has not involved his clients being restrained in an unlocked room the way these meetings take place. Again, he states that there have been no suggestions that Al-Nashiri has acted out or behaved improperly. Given this, while the defense appreciates the government’s “paternalistic concerns,” he regards these security measures as unnecessary. He then suggests that the Commission should, at the very least, ask the Commander for a different approach--if Judge Pohl is not prepared to order it. The ICRC, he notes, has met with his client under circumstances like the ones he wants, and he asks that the defense receive the same treatment.
Mattivi, for his part, calls attention to U.S. v. Kassir (admittedly a non-capital case), in which only non-contact preparation sessions were used pre-trial.
Judge Pohl rules that the Commission shall not interfere with the security decisions in the running of a secure facility in the absence of exceptional circumstances, of which there is no evidence in the record in this case. The defense motion is thus denied, he says, but he leaves the door open to revisiting the matter at a later date. Kammen, he says, made a lot of factual assertions that had no factual predicate. And he makes no determination as to whether they would have presented the sort of exceptional circumstance that might justify an interference. In other words, he says to the defense, if you have something you wish to present on this subject, there’s nothing stopping you.
The commission reconvenes--and do we--tomorrow morning at 9 am.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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