Everything Old is New Again: Last Week in the 9/11 Case, and This Week in Al-Nashiri

Wells Bennett
Monday, October 22, 2012, 5:01 PM
Want a preview, if only a partial one, of what this week’s hearing in United States v. Al-Nashiri will look like?  Then look no further than last week’s hearing, in United States v. Mohammed et al. Have a look at the latest docketing order in Al-Nashiri (AE 129).

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Want a preview, if only a partial one, of what this week’s hearing in United States v. Al-Nashiri will look like?  Then look no further than last week’s hearing, in United States v. Mohammed et al. Have a look at the latest docketing order in Al-Nashiri (AE 129).   (The court thus far has not acted on a pending request to---surprise!---amend it.)  It appears Judge Pohl will hear argument on, among other things, the government’s motion regarding the accused’s presence during pre-trial sessions (AE 99); and the defense’s motions to “end presumptive classification” (AE 112), to compel the prosecution to hand over guidance regarding the handling of secret materials (AE 113), to take judicial notice that the Confrontation Clause of the Sixth Amendment applies (AE 109), and to find that RMC 703 violates both the Military Commissions Act and Al-Nashiri’s constitutional rights (AE 114).  If these look to you like issues that were argued and taken under advisement last week, in United States v. Mohammed et al, well, that’s because they were.    There are some differences between last week’s agenda and this week’s.   Lawyers for the 9/11 accused eagerly debated the question of whether their clients can waive their rights to attend pre-trial proceedings; for his part, Al-Nashiri has asked the court to postpone consideration of the issue, by means of motion AE 106.  (In connection with the latter, his attorneys have sought the appointment of health professionals, who can evaluate Al-Nashiri and explain the effect that compelled courtroom attendance would have upon him.) No protective order regarding national security information has been entered in the latest go-round of the 9/11 case.  But the equivalent order in Al-Nashiri’s case was entered long ago, in 2012; and calls for all detainee statements, however innocuous, to be handled as a sensitive national security secret, pending classification review.  The defense team thus seeks to revisit that arrangement---rather than litigate it in the first instance---no doubt in light of developments in the 9/11 case.  There, prosecutors recently argued for a narrower approach, which would deem classified only information that counsel knew or reasonably believed to be so. Finally the 9/11 defense lawyers asked the court to presume the U.S. Constitution’s application across the board, leaving it to the prosecution to rebut the application of individual provisions, as disputes over them arose.  Al-Nashiri’s Sixth Amendment motion is at once narrower and broader than that: narrower, because it implicates a lone constitutional provision, the Confrontation Clause, rather than the Constitution as a whole; and broader, because it asks the court to apply the Clause, rather than to presume its application until the prosecution demonstrates otherwise. Still, these are fine distinctions.  Generally speaking, my guess is that if you tune in this week in Al-Nashiri, then you’ll hear a lot of the same talk that we heard last week in the 9/11 case.  The back-to-back timing leaves an opening for counsel, as Judge Pohl took nearly every motion under advisement: because he has not yet ruled on them, the parties will have a freer hand to argue the merits of this week’s parallel motions in Al-Nashiri.  (The court insisted during re-arraignment in the 9/11 case that, despite detailing himself both of Guantanamo capital cases, his ruling in one will not predetermine rulings on similar motions in the other.) A final, if obvious point: Al-Nashiri suggests quite a sluggish timetable in the 9/11 case.  That much is implied generally by the distinctions between the two prosecutions: the 9/11 case has five defendants, while Al-Nashiri’s has only one; the former also alleges a more complicated and deadlier conspiracy than the latter, and thus also implicates more evidence.  Consider, also, the progress to date.  In the 9/11 case, the defense possesses some discovery already, that leftover from the case’s first go round.  The remainder, however, cannot be handed over (and the defense’s investigation cannot shift into higher gear) until Judge Pohl enters new protective orders.  Compare that status to Al-Nashiri, in which accused was arraigned in early 2012, and a protective order entered shortly thereafter.  Right now--apart from the motions noted above---the parties in that case are litigating, among other things, discovery matters, both classified and unclassified (AE 88, 89, 115, 116, 120 and 121), and the provision of adequate resources to the defense (AE 77, 98, 107). All that underscores what was obvious to all who observed last week’s proceedings: a trial in the 9/11 case isn’t happening for a good long time.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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