Last Week at the Military Commissions: A New Judge and Testimony on Unlawful Influence

Last week, the military commission in United States v. Khalid Sheikh Mohammed et al. reconvened for pretrial proceedings, meeting in open session on Sept. 10, 11, and 12. The commission covered Col. Keith Parrella’s replacement of Col. James Pohl as the presiding military judge, began discovery motions, and interviewed witness Lieutenant Doug Newman.

Parrella’s Transition into the Role

Parrella recapped a Rule for Military Commissions (RMC) 802 conference that he held with counsel in advance of his appearance in court, in which he said that each side could conduct a voir dire and see his fitness report from his time as a Marine Corps Fellow at the Department of Justice (DOJ), but that his ruling should not be interpreted “as the commission’s position as to the appropriateness” of the parties seeking discovery. He also noted that various practices would continue from Pohl’s tenure as military judge: requiring each defendant to be at the commission for the first day of each session; scheduling courtroom breaks around prayer times, if possible; recording RMC 802 conference sessions and allowing requests for those transcripts; and letting the defense attorneys meet with the defendants after afternoon sessions wrap-up each day. After he ran through the proposed schedule for the week, the attorneys briefly clarified other issues.

Parrella’s Voir Dire

The parties then began a nearly day-long voir dire of Parrella, after he introduced his qualifications. The prosecution initially declined to challenge him but reserved the right. James Harrington, attorney for bin al-Shibh, raised a procedural point about having the Special Review Team present, but Parrella reminded Harrington that Parrella could be challenged “at basically any point going forward,” and continued with the questioning. He asked for any further issues to be put in writing.

The voir dire was mostly aimed at Parrella’s ability to be impartial, his preparation to deal with the case, and his general qualifications. Throughout, Parrella resisted extensive questioning about his background, insisting that he would recuse himself if it was necessary.

Questioning by Counsel for Mohammed

David Nevin, lawyer for Mohammed, began his voir dire by asking about Parrella’s knowledge and study of Islam, his personal views on the religion, and Parrella’s experience and personal connections to September 11, 2001. Parrella refused to delve into details, and instead stated that his personal beliefs would not affect his impartiality.

Nevin then inquired about Parrella’s familiarity with the Code of Conduct for United States Judges, and if there was anything that might disqualify Parrella under that code. He asked about Parrella’s oath, security clearance, clearance reinvestigation, and process of getting nominated and detailed to the case by Judge Pohl and read into the case. Nevin also raised a question about an earlier comment that Parrella made in August in another RMC 802 conference about being detailed to the case, asking if Parrella was appointed “against [his] will”. Parrella responded that while he “expressed reservations,” Marines “follow orders” and he “didn’t push back.” Nevin asked if Parrella had a plan to deal with discovery and master the material in the case. Parrella responded that he would pace the case appropriately. Nevin asked Parrella, on behalf of his client, to “absorb everything before you begin making substantive rulings.”

Nevin asked Parrella about Parrella’s courtroom and capital experience, but Parrella resisted, arguing that it was irrelevant to his impartiality. He said that he had been a trial judge for at least two years and, more importantly, had been selected by Pohl, an experienced judge, for the position. He stated that “If I felt I did not have the requisite qualifications, then I would be required to disqualify myself.” Nevin turned back to the issue of capital cases, because Parrella had only cited two capital cases he worked on as an intern while he was in law school.

Nevin also asked about mitigation, Parrella’s discovery statements, and the American Bar Association (ABA) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. When Nevin asked if the judge would allow himself to be trained by the ABA on the Guidelines, Parrella sustained the prosecution’s objection to the question. Nevin asked if Parrella believed that his job was to move the case along more quickly, and Parrella said no. Nevin then asked about Parrella’s experience with the laws of armed conflict and working at the Department of Justice (DOJ), including how well he knew the prosecutors in the case from his time at DOJ.

Nevin asked about Parrella’s experience with terrorism abroad and what Parrella had read of the prior proceedings, motion arguments, pleadings, relevant Supreme Court and court of appeals cases about the military commissions, and more. Parrella refused to give a percentage of the materials and said he was prepared to the best of his ability. He had not read any of the court decisions and “generally” had not read news media or books about the commission. Nevin asked if Parrella had read about the Central Intelligence Agency (CIA)’s Enhanced Interrogation Program, the Senate Select Committee on Intelligence (SSCI) report on the torture program, or relevant Office of Legal Counsel (OLC) memoranda. Parrella indicated that he had not and had no opinion on whether torture was justified.

Questioning by Counsel for Bin al-Shibh

Harrington, representing Bin al-Shibh, first asked Parrella if he knew what implicit bias was. He asked about Parrella’s reaction on 9/11 and if he had different reactions today. Parrella responded that he had similar feelings to everyone else. Harrington asked if Parrella had ever had a conversation about what should happen to the defendants or what they deserve, which Parrella denied. Harrington asked about what Parrella had told others about the job, but Parrella sustained an asked-and-answered objection and said, “We’re not going to go there” when Harrington asked if Parrella was planning to talk to Pohl about the case.

Parrella elaborated a bit about his participation in capital cases as an intern, but soon rejected Harrington’s questions, saying “I’m not going to stand up here and be quizzed.” Harrington explained his position that being qualified was a narrow question in this case, and expressed concern about Parrella’s scheduled departure for a new position next summer and impaneling a jury. Harrington then asked a few questions about Parrella’s time at DOJ and reiterated his earlier statement about having the Special Review Team present.

Questioning by Counsel for Bin Attash

Bin Attash’s attorney, William Montross, started his voir dire by asking if Parrella agreed that the ABA Model Code of Judicial Conduct applied to him. Montross explained that he wanted to ask specifically about Parrella’s knowledge, skill, and preparation, but Parrella explained that it was a “rabbit hole” that he refused to go down. He insisted that he had already answered as much as he could answer and would not answer any more questions about his “qualifications to sit on a capital case.”

Montross continued his questioning to get a better sense of Parrella’s time at DOJ—his duties and responsibilities, why his supervisor described him as incredibly well-integrated, what information he had access to, and what he worked on. After getting this overview from Parrella, Montross asked about Parrella’s relationship to Jeffrey Groharing, one of the members of the prosecution team. Parrella said he had no social relationship with Groharing outside of normal interactions and felt no need to disclose the information because it had no effect on his bias. Montross asked if Parrella was aware of an instance in which Groharing’s “credibility” was contested, and Parrella denied it. Parrella also noted that he knows Brigadier General John Baker, the chief defense counsel.

Questioning by Counsel for al-Baluchi

James Connell, for Ammar al-Baluchi, asked about Parrella’s command selection starting in summer 2019 and his role as the commander of embassy security for Central Europe. He asked if Parrella had strong feelings about capital punishment, and Parrella said he would be able to apply the law. Connell also asked about Parrella’s performance evaluation (called a “fitness report” in the Marine Corps) from his time at DOJ, including what role a fitness report normally serves, what he did there, what other agencies he worked with, the social functions he attended, his relationship with the high-value detainee prosecution task force, and more. Connell concluded his line of questioning by asking, “If you were a reasonable person out in the public with knowledge of all the facts and you knew that the new judge in a case within the past few years had worked for the exact office which is involved in the prosecution of the case, would you consider that to be the appearance of impartiality?” Parrella responded that “I don’t think there’s an appearance issue at this point in time . . . I’m open to consideration.”

Questioning by Counsel for al-Hawsawi

Walter Ruiz, for al-Hawsawi, started by asking Parrella about the selection process for the role of judge and his consideration for the fellowship at DOJ. Ruiz asked Parrella to exclude DOJ, the Federal Bureau of Investigation (FBI), and the National Security Agency (NSA) as future employers, but Parrella declined to do so, even though he had “no current desire or preference” to seek such positions. Parrella refused to answer questions about how much more qualified Pohl was because Pohl had detailed him to the case, said he had no interest in delaying the case or any exposure to comments about the speed of the case, and said he had never considered what the case would do to his “professional portfolio.” Ruiz then asked about Parrella’s input in his performance evaluation from his time at DOJ. Ruiz emphasized that it made a difference if Parrella wrote it because it described him as being “fully integrated” as a prosecutor. Parrella also briefly elaborated on his job at DOJ.

Ruiz then turned to a set of questions designed to address Parrella’s impartiality. Ruiz asked if most people thought that the people who committed the acts on 9/11 should pay for it with their lives, but Parrella declined to answer. Parrella said he did not think that the defendants deserved payback. Ruiz continued pressing Parrella, asking if he felt that there should be a price. Parrella said he did not remember and in any case could leave his personal feeling aside. Ruiz asked about Parrella’s review of documents at a CIA facility and his potential alignment with that party in the litigation. Parrella said the questions were not relevant. When Ruiz asked about Parrella’s deployment to Iraq, Parrella said he had no opinions on, or opportunity to work with, detainee populations.

Questioning by Prosecution

Clayton Trivett, part of the prosecution team, questioned Parrella briefly about his relationship with other people from DOJ and clarified that he believes Parrella is qualified.

Motion to Recuse Parrella

Late in the day on September 10, Nevin moved to recuse Parrella, citing three concerns: (1) for competence to adjudicate a capital case under the ABA Code of Judicial Conduct (applied through a Department of the Navy JAG Instruction, which notes that the ABA Code of Judicial Conduct “applies to all military and appellate judges and to all other covered [U.S. Government] attorneys performing judicial functions under the JAG’s supervision”); (2) for appearance under the Code of Conduct for U.S. judges because Parrella had previously practiced law at DOJ with some members of the prosecution team; and (3) because Parrella was likely to leave within a year. He also suggested that Parella abate the proceedings until he could review the full record of the case and achieve the necessary understanding of every issue.

Cheryl Bormann, for Bin Attash, joined in the argument and asked for an opportunity to brief it. Harrington joined in the argument and asked the court to read the transcript for Parrella’s responses about implicit biases. Connell asked to present evidence with respect to Parrella’s qualification. Ruiz reserved the right to challenge Parrella.

Trivett said that there were no grounds for recusal and refused to concede how the Code of Conduct applies, particularly to federal government employment, or that the judge leaving within a year was a legitimate ground to recuse. Nevin responded that it was not the exclusive grounds; that it was not government service broadly but working within the same division; and that the prosecution talked about judicial economy but still sought to delay at every opportunity.

Parrella ruled on the motion on September 11. He argued that he had the requisite qualifications, skill, and competence; that the proceeding would move along at the appropriate pace and not be abated to facilitate his preparation; that he could be impartial without any personal bias or prejudice based on his personal or professional background; and that his scheduled departure in summer 2019 did not matter because Pohl knew about it when he appointed Parrella.

Defense Expert Issues

Ruiz had an extensive discussion with Parrella about the Joint Task Force’s (JTF) decision to deny al-Hawsawi a request for a special visit with a properly cleared defense expert because it wanted more details than Ruiz was prepared to give under attorney-client privilege rules. Ruiz discussed the precedent that the prosecution proposed about the court’s deferral to the detention facility and asked for an abatement and a statement from the judge and the commission about that deference, which should not extend to defense meetings. Parrella noted that the JTF’s concern was with medical treatment, but Ruiz disagreed that the JTF should know the expert’s area of expertise, arguing that “for me to share that information with the JTF would involve a leap of faith that I am simply not willing to take based on the history of this case, which involves . . . inappropriate interference.” The other defense attorneys also supported the motion. Nevin observed that the issue could affect all of them going forward and said that the judge has a right and a duty to intervene when the detention facility interferes with the fairness of the proceedings. He emphasized that expert consultations and assistance pre-trial are particularly needed in this case given the impact, in a variety of ways, of the defendants having been tortured early in their detention.

Bormann underscored the numerous logistical challenges in dealing with their clients, and Harrington stated that sometimes the expert has to meet alone with the defendant and that the defense should just be able to certify that it was important.

Robert Swann, for the prosecution, noted that because it was an ex parte submission, they didn’t really know what happened. Parrella asked him if he agreed that the JTF went beyond justification by asking for a detailed explanation, but Swann disagreed.

Ruiz responded that the JTF had to be providing the prosecution with information about the nature of expert visits, because the defense team had not shared any information and yet the prosecution was nonetheless familiar with some details. Nevin noted that the “distinction between clinical and forensic evaluations is ephemeral,” particularly for these defendants. Parrella said he would rule on the issue after lunch but not abate the proceedings.

Motions for Discovery

The court began working through discovery motions, turning first to Appellate Exhibit (AE) 589, in which Suzanne Lachelier, for al-Hawsawi, requested a document cited in the SSCI report on the CIA’s Rendition, Detention, and Interrogation program. Groharing, for the prosecution, said the document was cumulative and need not be produced. Lachelier argued that the government was “connecting dots” that are not in the summary provided to the defense and that documents which the defense does have indicate that there was a change in policy about sleep deprivation and how it applied to al-Hawsawi.

Motion to Compel a Witness Regarding Unlawful Influence

The commission reconvened to take up the AE 555 series, addressing the question of whether the firing of former military commissions convening authority Harvey Rishikof and legal adviser Gary Brown constituted unlawful influence. Connell introduced a motion to reconsider a motion to compel the government to produce Lieutenant Doug Newman, who investigated the firing on behalf of the defense, as a witness. Parrella decided to allow both sides to conduct opening remarks before deciding whether to introduce Newman as a witness.

In what Connell called the “longest [speaking] objection of all time,” Trivett first presented an objection and accompanying PowerPoint presentation, AE 555RR, about why further testimony on the unlawful influence question was unnecessary. Trivett pointed out that while Pohl had granted reconsideration of whether testimony was necessary on the issue, Pohl had ordered production of the discovery referenced in declarations made by Rishikof, but nothing else. Because the government had already provided those declarations, Trivett argued that the government’s discovery obligations on the issue were complete. Moreover, under RMC 703, testimony must be relevant and necessary; according to Trivett, additional testimony would be unnecessary and cumulative.

Next, Trivett listed several documents supporting the legitimacy of Rishikof’s removal, including a December 2017 memorandum describing the authority to remove Rishikof from his position and additional declarations further detailing removal justifications. Specifically, Trivett emphasized how important Rishikof’s failure to coordinate administratively was to the removal decision.

While maintaining that “zero evidence” showed any influence over Rishikof on whether to agree to a plea deal in the case, Trivett argued that even if there was such evidence, it still would not constitute unlawful influence for several reasons. First, care was taken to ensure that Rishikof was not terminated for any judicial or quasi-judicial act, to prevent even the appearance of unlawful influence. Instead, Rishikof was fired for administrative actions taken in his capacity as director of the Office of Military Commissions, not as the convening authority; according to Ayestas v. Davis, administrative decisions are not decisions or orders made in the judicial capacity. Second, he argued that Rishikof’s removal met the standard of the Army JAG School’s Commander’s Legal Handbook, which states that it is possible to properly remove a convening authority without the removal constituting unlawful influence. Third, the position of convening authority for the military commissions was established by the secretary of defense rather than by statute, so the secretary of defense was authorized to remove the position and withdraw Rishikof’s authority. Fourth, even if one believed that Rishikof’s firing created the appearance of unlawful influence, the “taint would have been cured” when the case was transferred to the new convening authority, Jim Coyne, who testified to having been subject to no such influence.

Trivett also raised the question of why the secretary of defense would have waited 52 days after hearing about the potential pretrial agreement to fire Rishikof. Finally, Trivett noted that mere publication of the defense’s arguments on unlawful influence cannot create the appearance of unlawful influence simply because a new convening authority may read such publications.

Connell responded that all justifications offered by the government for the firing were pre-textual and that Rishikof was actually fired because he was acting with too much independence as convening authority in considering the plea agreements. Moving to the motion at hand, Connell argued that under RMC 402, evidence is generally admissible and the military judge can give individual answers the weight they may deserve. Additionally, Connell noted that both sides have a right to present evidence under the due process clause of the United States Constitution and under the Military Commissions Act.

Having heard both opening arguments, Parrella ordered that Lieutenant Doug Newman be called as a witness.

Examination of Lieutenant Newman

After Newman was sworn in, defense attorney Captain Mark Andreu examined him on direct, followed by Trivett cross-examining him for the prosecution.

Newman’s Interview with Former Deputy Secretary of Defense Robert Work

Newman testified to interviewing former deputy secretary of defense Robert Work about the hiring of Rishikof, whom Work described as “tremendous.” Newman also discussed two relevant memoranda: first, a December 12, 2017 memorandum (referred to as the “management memorandum”) submitted by Rishikof to Deputy Secretary of Defense Patrick Shanahan describing possible paths forward to reach a conclusion of the military commissions; second, a 2015 memorandum by Work titled “Rescission to Change 1,” in which Work rescinded a decision to move the trial judiciary to Guantanamo Bay until the end of the legal proceedings, which conflicted with Rishikof’s 2017 management memorandum. Newman interviewed Work about the history and interagency consultation process leading to the memos.

During the interview with Newman, Work argued that the 2015 rescission memo did not apply to Rishikof, who was appointed as the convening authority later in time. However, on cross-examination, Trivett asked Newman if the rescission memo would still have been in effect in 2017 because it was never revoked, and Newman acknowledged that this was generally how orders work in the military.

Newman’s Interview with Gary Brown

Newman then testified to interviewing Gary Brown, former legal adviser to the convening authority, about the relationship between the Office of the Convening Authority and the Office of the Chief Prosecutor. Brown characterized the relationship as “not productive” and described the Office of the Chief Prosecutor as “out of control.” Additionally, Brown felt that there was inappropriate influence between the Office of the General Counsel and the Office of the Chief Prosecutor.

According to Newman, Brown described three incidents that evinced the strained relationship between the convening authority and the chief prosecutor. First, they disagreed over whether the judiciary should be brought to the island from across the bay on a separate boat. During a conference call on the issue, the chief prosecutor was “unprofessional, inappropriate, [and] overly aggressive.” Brown documented this feeling in a draft memorandum. Second, Brown told Newman that when the charges against Riduan Bin Isomuddin (also known as Hambali) were not forwarded by the legal adviser due to evidentiary issues, the Office of the Chief Prosecutor “was not pleased” and the incident created additional resentment and tension. Third, Brown explained the relationship between the offices was further stressed by disagreement over a deputy associate general counsel having access to the convening authority lodging and office spaces while making critical statements about the commissions and being openly celebrated by the chief prosecutor as a valuable part of the prosecution team. Brown informed Newman he felt the situation could jeopardize the perception of the independence of the Office of the Convening Authority, so he barred the individual from access.

Finally, Newman testified that Brown described a meeting held after Attorney General Jeff Sessions learned that pleas were being discussed in the 9/11 case. According to Brown, after Sessions first learned of the plea discussions, he immediately contacted Secretary of Defense Mattis by phone to inquire about the pleas and was “angry.” In response to the phone call, Principal Deputy within the Office of General Counsel William Castle held a meeting with Brown and with former deputy within the Office of General Counsel, Robert Easton. According to Brown, Easton made a comment during this meeting that his office “own[ed] the commissions.” Brown felt that this was an inappropriate comment and documented his feelings in notes (AE 555MM). During cross examination, Trivett asked if Easton later clarified the meaning of this comment, but Newman could not recall if he had.

On cross-examination, Trivett asked Newman if Brown was bitter about his termination during the interview. Newman did not feel comfortable speaking to Brown’s emotional state and simply said that Brown had appeared professional.

Newman’s Interview with Former White House Counsel

Newman testified to interviewing Neil Eggleston, former White House counsel to President Obama, about a meeting concerning the military commissions, for which Obama was present. Eggleston had described Obama as being “seriously aggravated or agitated” about the military commissions’ cost and slow progress. At the meeting, Obama instructed Robert Work to find options to move the commissions along, including potential plea agreements. Following this meeting, Work told Rishikof to explore possibilities and report back to Work directly, to reduce chatter within the Department on the politically sensitive issue of plea agreements. This instruction resulted in the 2017 management memorandum.

Newman’s Interview with a Victim Family Member

Newman testified to interviewing Colleen Kelly, a victim family member and co-founder of an organization called 9/11 Families for Peaceful Tomorrows, about plea negotiation conversations while Rishikof was convening authority. However, Trivett objected to the line of questioning on relevance, arguing that the victim family members’ activities have nothing to do with unlawful influence. Andreu replied that Newman should be able to testify about the interview as it involved efforts made by victim family members and the convening authority to pursue plea agreements, but Parrella sustained the prosecution’s objection.

Newman’s Interviews on Aerial Imagery of the Expeditionary Legal Complex (ELC)

A second reason proffered by the government for Rishikof’s firing was an incident in which Rishikof allegedly ordered an overflight of the ELC at Guantanamo Bay to obtain updated aerial imagery without receiving proper authorization. Newman testified to having conducted several interviews about the circumstances of this overflight.

First, Newman testified to interviewing Wendy Kelly, an employee of the Office of the Convening Authority, regarding the need for current imagery of the ELC. Kelly had asked for updated imagery due to a $14 million reprogramming request to expand the ELC. During Newman’s interview, Kelly described Rishikof as naive about the process required for obtaining new imagery, despite liking Rishikof very much personally. On cross-examination, Trivett asked Newman whether Kelly had indicated that she thought Rishikof’s firing constituted unlawful command influence. Newman said that she indicated the opposite: that she believed the firing was lawful and that both Rishikof and Brown were fired because they were not respecting DoD processes. Kelly also indicated that it was not unusual for the Office of General Counsel to recommend a termination to the secretary of defense, and she also pointed out that plea agreements had been entertained “from day one” by almost every convening authority.

On re-direct examination by Bormann, Newman testified that Kelly had been unaware that plea agreements were discussed in the 2017 management memo. Bormann tried to establish that Kelly may not have known that pleas were being discussed in the 9/11 case, and that as a result, Kelly’s opinion of whether unlawful influence occurred was based on incomplete facts. However, Trivett objected on grounds of speculation and Parrella sustained it.

Next, while Newman was unable to speak to the commander of United States Southern Command (SOUTHCOM), Admiral Tidd, about the aerial imagery, Newman did testify that during his interview with Gary Brown, Brown had said that Tidd never forbid the taking of new aerial imagery. Brown had taken notes from his call with Tidd and the notes contained nothing about Tidd forbidding the flight. During re-direct examination by Andreu, Newman also reported that he had not been able to verify that SOUTHCOM explicitly denied the request for imagery.

Newman also testified to interviewing Coast Guard Admiral Kevin Lunday about the decision to obtain updated imagery of the ELC. In the interview, Lunday described a conference call in which Rishikof asked if the Coast Guard could assist in obtaining the updated imagery. Lunday reported that he had not viewed the request as inappropriate or unusual, and he told Admiral Brown, commander of U.S. Coast Guard District 7, of the phone call via email. On cross-examination, Trivett explored the nature of Lunday’s professional and personal friendship with Rishikof, a friendship extending back a decade.

Newman then described his interview with Navy Rear Admiral Edward Cashman, commander of the Joint Task Force at Guantanamo at time of the overflight. Cashman told Newman that he had been unaware of the overflight occurring, and that if there was an overflight, he wished he would have known about it, because he would have routed the request to SOUTHCOM according to procedure. On cross-examination, Trivett returned to this issue, clarifying that Cashman had not known about the overflight at the time. During re-direct examination, Andreu established that despite being unaware of the overflight, Cashman also had not reported being aware of any complaints about the overflight.

Finally, Newman testified to interviewing Scott Parr, branch chief of information technology for the Office of the Convening Authority. Parr recalled coordinating the aerial image request with the Coast Guard, Public Affairs Office of the Navy Station, and the Chief of Security for Washington Headquarters Services.

The examination concluded with Bormann clarifying that Newman authored reports after each interview, and asking that they be admitted into evidence. With no objection, Parrella allowed the admittance.

Decisions on Oral Argument and Conclusion

Parrella explained that the commission must balance the parties’ opportunity to argue on the motions with the need to allow for witness testimony at the next court session, if necessary. He ordered that the parties memorialize their oral arguments on motions currently before the commission in writing within two weeks, with the goal of having a ruling out with sufficient time to take the matters up in the November session. Both parties were given an additional two weeks to respond to the written submissions.

Parrella then put the commission in recess until November, when it will reconvene.