Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
Shaking things up a bit, I’m going to begin Lawfare’s in-depth coverage of Abd al-Rahim al-Nashiri’s military commission proceeding yesterday from the end—the roughly one-hour-long afternoon press conference that followed the morning hearing. As noted in my post yesterday, the press conference featured remarks from defense counsel, the chief prosecutor, and members of the victims’ and survivors’ families. Each set of comments were followed by questions from members of the press able to travel to Guantanamo Bay. Reporters present at Ft. Meade were informed that the conference took place in a hangar on the naval base; the live feed displayed only the speaker’s podium and did not pan to the audience when questions were asked. Unfortunately, the feed was not two-way and, as such, media assembled at Ft. Meade were unable to take part in the press conference. Given that this live feed was the first of its kind—and it was only officially approved by Military Judge Pohl on Monday—it is not too surprising that it lacked such a level of interaction. Nevertheless, the Office of Military Commissions and the OSD Public Affairs Office might look into the feasibility in the future of allowing remotely located reporters to take part in press conferences. A brief aside on some technical aspects of the feed are appropriate at this point. The video and audio feeds for both the hearing and press conference were remarkably crisp and saw only a few hiccups; the video paused briefly in a few instances, all of which seemed unrelated to concerns over protecting classified information, and Ft. Meade lost audio once for a few moments. All in all, the video system worked remarkably well and permitted access to a group of people—including me—who never would have traveled to Guantanamo for an arraingment and motions hearing. When the lead defense counsel, Richard Kammen, began taking questions during the press conference, media members present at Ft. Meade struggled initially, as the reporters at Guantanamo did not have microphones. Literally moments after a few reporters expressed minor frustration with this, however, a member of the Office of Military Commissions staff (I presume) requested that Kammen repeat the reporters’ questions, since those in remote viewing locations would be unable to hear them. And while the result was amusingly reminiscent of the human microphones in use at the Occupy Wall Street protests, attention to such issues highlighted the OMC’s new interest in promoting greater transparency of military commission proceedings. The press conference itself kicked off shortly after 2 pm, roughly an hour after Military Judge Pohl called a recess to the proceeding. Defense counsel, represented by Richard Kammen and Lt. Commander Stephen Reyes, made remarks first. Kammen described the morning’s proceedings as “very, very interesting” and stated that they demonstrated the problems inherent in the military commission system—a system he believes to be “hopelessly unfair.” Kammen noted that an arraignment hearing in an Article III court would have taken “5 to 10 minutes” and there would have been no need to address the kinds of issues discussed in the morning’s proceedings. He homed in on the “unorthodox” and informal way in which the conflict issue was brought to Military Judge Pohl’s attention. Kammen added that the defense would never have needed to make its three motions in federal court—especially the motion related to law of war detention. Indeed, he thinks that al-Nashiri’s military commission trial will “spend many days” on issues that would never be raised in federal court. Kammen stated that he was a bit disappointed with the voir dire of Military Judge Pohl, especially Pohl’s response to Kammen’s question regarding whether Pohl would permit an “unreliable result” if that is what the law would produce. Kammen noted his belief that it is a judge’s duty to determine if a trial result is reliable. In general, however, Kammen stated that he believed the hearing went smoothly, but again stressed how unnecessary many of the motions would be if the trial were taking place in an Article III court. He noted his belief that problems associated with military commissions are “crystallizing.” With respect to the setting of the trial date for November 9, 2012, Kammen stated that it was somewhat arbitrary. He explained that the typical death penalty trial in federal court takes 2½–3 years. Given his belief in the complexity of the issues involved in al-Nashiri’s case (especially as they relate to evidence), Kammen stated that the trial will get underway only “far in excess of a year.” Kammen then took questions from the press. The first question asked what he perceived to be the effect of today’s proceeding on the victims’ and survivors’ families. Kammen stated that, contrary to what many might think, defense counsel frequently try to put themselves in the families’ shoes. He noted that delay makes it difficult for them to obtain closure and that any resolution that is “hurried or unfair” will only provide a false sense of closure. He noted here that defense counsel was not responsible for the first 11 years of delay. In short, Kammen said that he wanted to make sure that the trial is as fair as possible and that he respects the needs of the families. The second question focused on al-Nashiri’s reaction to the proceedings. Kammen noted that this question poses an “interesting dilemma,” since the government has declared that anything al-Nashiri says to his counsel is classified as Top Secret (and this condition is waived only for al-Nashiri’s courtroom statements). Kammen nevertheless offered a description of al-Nashiri’s demeanor, stating that he believed al-Nashiri was “glad to be in the process.” Kammen added that al-Nashiri has probably not been in a room bigger than 8×10 feet in many years. The next question had multiple parts and followed up on the second. The first part focused on whether al-Nashiri had been able to call home. Kammen stated that al-Nashiri did not call home, but added that defense counsel did not think of this opportunity until yesterday and simply had too many other things going on to make it happen. (Note: I’m not entirely sure what prompted this question or what its basis is, nor is it clear to me why Kammen believed that defense counsel could effectuate a telephone call home for al-Nashiri). The second part asked whether al-Nashiri was aware that the families of victims and survivors were present. Kammen replied that al-Nashiri was aware of their presence, but he was unsure whether al-Nashiri saw any of them (and indeed, he would not have been able to identify them anyway). Lastly, the reporter asked whether defense counsel would be able to send newspaper articles to al-Nashiri in light of Military Judge Pohl’s ruling on attorney-detainee privileged communications. Kammen stated that this question remains unresolved and will be fleshed out in not only this trial, but the many others to come. He emphasized that Pohl’s order only applies to this case. The Miami Herald’s Carol Rosenberg next asked whether al-Nashiri’s defense team has ever sent him “extremist literature.” Kammen stated flatly “absolutely not.” A number of the subsequent questions focused on al-Nashiri: his behavior in the courtroom, his appearance, and the amount of time he has been able to spend with his counsel. Reports from the court room suggest that al-Nashiri waved to someone. Kammen, however, stated that this had been a “meaningless gesture” and the arm-waving reflected al-Nashiri’s excitement at being somewhere new. Another question asked whether al-Nashiri was “really the same man in the photo” that has been associated with him. Kammen laughed and emphasized that people must understand that the photo is quite old. He added that al-Nashiri has “been through a lot.” Kammen indicated that while he’s not at liberty to discuss al-Nashiri’s health, even though he might appear “hale and hearty,” the “truth” is “sometimes less obvious.” This prompted a follow-up question regarding whether al-Nashiri was “muscular or fat.” Kammen joked, saying that he himself is fat, while his co-counsel, Lt. Commander Reyes, is muscular (note: Kammen actually said “he” rather than “Lt. Commander Reyes.” I believe Kammen was referring to Reyes, who was standing beside him, rather than al-Nashiri). Kammen stated that he would not describe al-Nashiri as fat, but noted that he has been in prison for quite some time (implying that he has had ample opportunity to find ways to stay fit). Kammen added jokingly that he has not personally lifted weights with al-Nashiri. In response to a question regarding how much time defense counsel has been able to spend with al-Nashiri, Kammen stated that Lt. Commander Reyes has been seeing him on-and-off since 2008, while Kammen himself saw al-Nashiri a few times in 2008, but did not have much interaction with him between the time when President Obama took office and this year. Kammen stated that he has seen al-Nashiri four times this year and each visit lasted a few days. Another reporter asked whether al-Nashiri has expressed any remorse for his actions. Kammen seemed a bit perturbed by the question and once again noted that he is not allowed to tell the reporters any specific comments al-Nashiri has made. Nevertheless, Kammen indicated that al-Nashiri’s responses have been “appropriate to the situation” and that he is not without “heart or feeling.” A few other questions involved matters more directly related to the trial proceedings themselves. One reporter asked why there has not yet been any discovery. Kammen explained that discovery will presumably begin after various protective orders are issued (from the hearing, it appears that such orders will come down next week). Kammen stated that he was not sure how much discovery there will be, but would not be surprised if there were more than half a million documents produced. Another question focused on the cost of the defense. Citing the McVeigh and Hasan cases, Kammen stated that it will be in the “millions,” adding that if the government wants a fair trial, then it must be in the millions. Another reporter asked if Kammen believed he had received any resolution on the post-acquittal detention issue. He responded, “honestly, no.” Kammen noted that the Obama administration had been clear that there will be no release for acquitted detainees. He added that he believed that any suggestion otherwise is either “naïve or disingenuous.” Lastly, a reporter directed a question to Lt. Commander Reyes regarding the attorney-detainee privilege issue (note: Reyes argued this motion during the hearing). Reyes stated his belief that the matter demonstrates that a military commission should not be equated with a court-martial, as privilege issues are “not done in this way” in courts-martial. With that, the defense counsel left the podium. They were followed by the military commissions’ Chief Prosecutor, Brig. Gen. Mark Martins. Martins began by noting that the hearing marked the public announcement of charges against al-Nashiri for his alleged involvement in the al-Qaeda “boats operation.” He added that it was “informative” to examine the charge sheet and highlighted al-Nashiri’s “extensive preparations” in implementing the operation. Martins next focused on the “armed conflict nature” of the charges against al-Nashiri, emphasizing that among them include the “longstanding war crime” of perfidy and the “long-established offense” of murder in violation of the law of war. Martins then carefully noted that these charges are only allegations, that al-Nashiri remains innocent until proven guilty, and that the prosecution must prove his guilt beyond a reasonable doubt. He noted that these charges have been referred to a military commission “empowered to impose the death penalty.” Martins then described the “collaborative effort” by various parts of the federal government to prepare for and prosecute this case. He noted the work of the FBI and NCIS in gathering the evidence that would be used at trial and that the prosecution’s team includes counsel from both the Department of Justice and the Department of Defense. Martins expressed his belief that this joint approach is reflective of the need to combat transnational terrorist organizations with all instruments of national power. Martins finished his remarks by discussing how the United States is “committed to accountability under law.” He noted that throughout the United States’ history, it has “relied on the faithful adherence to the rule of law” to bring criminals to justice, whether they commit “ordinary” crimes or crimes under the law of war. He discussed the historical pedigree of the military commissions venue, which date to the time of George Washington, and how the procedures under which the commissions will operate are a product of all three branches of government. He connected the commissions to the court-martial system, noting that the commissions’ procedures were modeled after those already in use in the military justice system. He stated that this will provide a “stable body of law and precedent’ to conduct military commission trials in an open and adversarial manner. Indeed, Martins emphasized that the adversarial system “demands accountability from all parties” and added that he is confident that the commissions will “answer the call” to accountability “with fairness and justice.” He then took questions. The first question addressed the defense’s filing of a complaint in the Western District of Washington challenging the constitutionality of the order by the Office of Military Commission’s Convening Authority, retired Vice Adm. Bruce MacDonald, to convene the military commission trying al-Nashiri. The complaint emphasized that the conduct in which al-Nashiri is alleged to have engaged did not take place during a war. Martins responded that as chief prosecutor, he must be persuaded that there is a basis for prosecution under the law of armed conflict. He stated that he believes that these constitutional issues will be litigated in the courts, but he noted that the charges against al-Nashiri constitute offenses under the law of war, as defined by the Military Commissions Act of 2009, and are triable by military commission as per that same act. The next question focused on the law of war detention issue. Martins said that he will not speak directly to the discussion during the proceedings earlier in the day, but stated that humane detention and the taking of prisoners until the end of hostilities are parts of warfare. He remarked that the system is based on the law of armed conflict, which permits each side to a conflict to remove the enemy from the battlefield and hold them in humane detention until the end of hostilities. Martins then emphasized that the standard governing the Executive’s detention authority is reviewed by the federal courts. Such a review, Martins noted, is not a criminal proceeding and detention is not punishment; criminal punishment may only attach after a criminal trial. He explained that a neutral judge will hear the evidence and issue a sentence. The next question involved the various difference between military commissions, courts-martial, and a federal criminal trial. Martins noted that the discovery process is one area of difference, explaining that discovery looks to the military commissions manual, whose discovery rules were modeled after those found in the courts-martial manual, and the Military Commissions Act of 2009, which basically incorporated the Classified Information Procedures Act (“CIPA”). He noted that in some areas, discovery in a military commission proceeding is a “little more open”: both sides must provide all relevant statements and Brady material as soon as practicable. He noted that there was one area in which military commission discovery was more demanding—witness lists must be provided before trial. With respect to CIPA, Martins said that there was a “need to be surgical here”; that is, the government will attempt to be as narrow as possible when it seeks to protect national security information. Martins then concluded with a quote from Justice Robert Jackson: “where crime leaves the beaten path, the law must be strong enough to follow.” Finally, members of the victims’ and survivors’ families took the podium. The families chose John Clodfelter, the father of a sailor killed onboard the USS Cole, to serve as their representative. Clodfelter noted that this affair is not something they can “easily get rid of.” He discussed how the families have grown close over the years and consider each other to be good friends. Clodfelter described his reaction to seeing al-Nashiri for the first time. He stated that he thought al-Nashiri was a “pitiful looking person” and thinks that the lives of 17 sailors are worth taking al-Nashiri’s life. Clodfelter then digressed, noting his disappointment when he had been told by his Congressman that President Bush refused to meet with the victims’ families. He returned to al-Nashiri, saying that he thought he seemed “cocky,” especially when he was “waiving his hands” in the courtroom. Clodfelter stated that he thought it was similar to the gestures the suicide bombers who attacked the Cole are purported to have made. Unlike the previous speakers, Clodfelter did not repeat the reporters’ questions, thus making it more difficult to ascertain precisely what had been asked. One question, however, addressed a matter brought up by Kammen during the voir dire of Military Judge Pohl—whether the United States’ treatment of al-Nashiri has undermined its “moral authority” to sentence him to death. Clodfelter stated plainly that he thinks defense counsel spend more time thinking about al-Nashiri’s treatment than the lives of the sailors who were killed during the attack. Rather choked up, Clodfelter stated that “these people” will not stop unless “we stop them.” Saundra Flanagan, a family member of one of the victims, then said a few words. She remarked that she believed that the arraignment had gotten “off on the right track” and that eventually there will be justice for the 17 dead and over 250 injured in the attacks. With that, the press conference came to an end.
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