Last Week at the Military Commissions: Pre-sentencing Hearings Continue in United States v. Khan

Rachael Hanna
Thursday, April 11, 2019, 3:17 PM

The military commission for Majid Shoukat Khan, who pleaded guilty to charges related to his role as a low-level al-Qaeda operative in 2012, reconvened on April 1, after a hiatus since July 2018.

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The military commission for Majid Shoukat Khan, who pleaded guilty to charges related to his role as a low-level al-Qaeda operative in 2012, reconvened on April 1, after a hiatus since July 2018. This one-day session recapped the previous day’s session and defense counsel’s motions to compel the government to produce a laptop for Khan, discovery materials and witnesses. The commission recessed, with a closed session planned for the following day to discuss classified arguments regarding defense counsel’s motions.

Administrative Matters

Military judge Col. Douglas Watkins opened the session by recounting a Rule for Military Commissions (RMC) 802 conference on March 31, during which the parties discussed the plan to finish unclassified arguments for all pending motions before moving to Military Commission Rule of Evidence (MCRE) 505(h) proceedings or closed RMC 803 sessions. Watkins said that following the RMC 802 session, he had reviewed all the classified pleadings relevant to resolve Appellate Exhibit (AE) 030C. Defense counsel had requested the immediate release of AE 028 and 030 to the media, which Watkins had taken under advisement. After considering the request, Watkins decided that the request was not ripe without a formal motion for relief. Watkins also noted that the issue of rescheduling Khan’s July sentencing date to accommodate his testimony in another case was not yet ripe.

Defense attorney J. Wells Dixon then asked additional voir dire questions of Watkins, regarding his previous statement to the commission in July 2018 that he was eligible for retirement and considering retiring in two years. Dixon asked if he had made further plans to retire. Watkins replied that he had not but intended to retire during or after the summer of 2020. Dixon asked if he had applied for post-retirement jobs, to which Watkins responded he had not. Defense then asked if the military judge had issued any ex parte rulings or had ex parte communications with the prosecution. Watkins affirmed that he had not issued any ex parte rulings related to any proceedings in this case. Given the military judge’s answers, the defense asserted no objections to Watkins presiding over Khan’s case.

Arguments Over Provision of a Laptop for Khan

The first motion of the day was AE 027, a defense motion requesting that the commission order the government to provide Khan with a privileged laptop configured with specific software. Watkins noted the defense’s request for the laptop to be loaded with Microsoft Office, Adobe Acrobat Pro, and photo- and video-editing software for Khan to use to assist his counsel in preparation of his case and petition for clemency. Defense counsel already had access to the laptop at issue, but without the requested software, and the laptop had not been provided to Khan due to a security incident unrelated to Khan or his case. Watkins summarized the defense’s arguments that Khan’s access to a privileged laptop is necessary to guarantee his constitutional rights, to petition the government for redress, to have meaningful access to the courts, and to have effective assistance of counsel, and that there is no legitimate government interest in denying him access.

Next, Watkins summarized the government’s response in AE 027A. The government argues that Khan does not have a legal right or other entitlement to a laptop and there is no precedent in any U.S. court finding that a prisoner or pretrial detainee had a right to access a laptop. The government also asserted that Khan has meaningful access to the courts and effective assistance of counsel without access to a laptop, and that the government has legitimate security interests in denying “law of war detainees,” including Khan, access to a laptop. The defense replied in AE 027B that Khan cannot prepare fairly and adequately for his presentencing proceedings without a laptop.

Watkins then asked if defense wished to give additional oral argument. For the defense, Dixon clarified that while a defense laptop has been procured, it is in the government’s possession and ready to be delivered to Khan pursuant to a memorandum signed by the chief prosecutor, Brig. Gen. Mark Martins, authorizing Khan to use the laptop for “rehabilitative purposes.” Dixon noted that the defense is requesting that Khan be able to use the laptop to prepare for his sentencing, as other detainees have been permitted to use laptops to prepare for trial.

Dixon next addressed the constitutional issue common in AE 027, AE 028 and AE 030: Khan’s right to a fair trial in accordance with due process. With respect to the applicability of the Constitution, Dixon cited Justice Anthony Kennedy’s concurring opinion in United States v. Verdugo-Urquidez, in which Justice Kennedy noted that there is no blanket prohibition against applying the Constitution overseas; rather, there are “certain provisions that don’t necessarily apply in all circumstances in every foreign place.” Justice Kennedy relied on Reid v. Covert, a case concerning the Uniform Code of Military Justice (UCMJ), in making this assertion. Dixon further argued that the government is wrong in contending that no case recognizes the particular constitutional rights of which the defense seeks affirmance. Boumediene v. Bush, he said, affirms that Guantanamo detainees have a right of discovery to relevant exculpatory evidence, and federal courts have followed that precedent in habeas cases, including Duran v. Trump and the case of Walid bin Attash, one of the 9/11 commission co-defendants. Regarding the witnesses the defense is seeking to compel to testify, 10 U.S.C. § 949j grants a right to compel witnesses in a military commission that is equivalent to the right in Article III courts.

Defense’s Request for Brady Material

Moving to AE 028, a defense motion to compel production of Brady material, the defense posited that Boumediene provides detainees “some measure of due process rights,” and in the defense’s view that includes fair trial rights. Dixon argued for the holding in Kiyemba v. Obama—that detainees do not have a due process right to enter the United States—to be read narrowly in light of Boumediene. He cited subsequent cases that have construed Kiyemba narrowly: Aamer, et al. v. Obama and Bahlul v. United States, a military commission case in which the government conceded that the Ex Post Facto Clause applies to Guantanamo detainees. Dixon acknowledged that district courts in Washington have found the holding in Kiyemba to be broader, including in Salahi v. Obama, cited by the government, but the defense contends that the government is relying on dicta in Kiyemba rather than its holding. Dixon noted that Ali v. Trump is the latest case concerning the scope of Kiyemba, in which the court considered whether the Due Process Clause limits how long Guantanamo detainees can be detained without charge. On denial of en banc review, D.C. Circuit Judges David Tatel and Cornelia Pillard issued an opinion that Kiyemba concerned only detainees’ due process right to enter the United States; it did not hold that detainees do not have due process rights.

Judge Watkins questioned the defense’s assertion that Brady applies both to sentencing and in the military commissions, following United States v. Hawkins, a military court-martial case that said Brady applied to its proceedings. Watkins asked how that holding is precedent for conclusively saying that Brady applies to military commissions. Dixon replied that the defense was not relying exclusively on Hawkins to make the claim that Brady applies to this commission. Rather, the defense believes that it is undisputed, “black letter law under the Fifth Amendment” that Brady applies.

Watkins asked if the defense cited any authority that “explicitly applies the Fifth Amendment due process clause to these commissions.” Dixon said the pertinent question is whether that provision of the Constitution applies extraterritorially, rather than the type of proceeding to which it is being applied. Dixon also noted that the government had raised Rule for Courts-Martial 705, which identifies due process “as one of the indispensable judicial guarantees that may not be bargained away.” The defense’s position is that Brady “is not waivable as a matter of law.” Dixon cited to 10 U.S.C. 949j(a)(1), which incorporates Article III standards, including the Due Process Clause, into the military commissions. Dixon noted that detainees have fewer rights in habeas proceedings than they do in military commissions, so if detainees have Brady protections in habeas cases, then those protections should also apply in this commission. Watkins again asked if a higher court had held the Fifth Amendment Due Process Clause to apply to military commissions “in toto,” to which Dixon responded in the negative.

Watkins then directed the defense to proceed with further oral argument. For the defense, Katya Jestin stated that Khan plans to put on a mitigation case at his sentencing hearing, the right to which he retained in paragraph 21 of his pretrial agreement. Jestin asserted that information critical to Khan’s mitigation case is in the sole possession of the government. She argued that the evidence sought by the defense would establish and corroborate Khan’s account of his torture and pretrial punishment. Disallowing Khan access to this evidence would deprive him of due process and a fair sentencing. The Constitution requires that the government produce favorable material to Khan in a timely manner, and the government’s claim that Khan waived his right to discovery is irrelevant, as Brady is a due process protection that cannot be bargained away.

Jestin further argued that the government objects to the material sought only because it concerns Khan’s torture by the CIA. However, Khan is seeking the material for purposes of mitigation, not to change his guilty plea. Watkins then asked if the defense thought it mattered when the request for discovery was made, to which Jestin replied that the request was timely but that the information sought need not be turned over under the discovery rules. However, it must be turned over as a matter of due process. The government has an obligation under Brady to turn over exculpatory material whenever such material comes into its possession, including through sentencing.

Jestin noted that discussions about this material have been ongoing since Khan pleaded guilty in 2012, representing to the commission that the defense discussed this matter with the prior prosecutor and noting that Khan mentioned these discussions in the 2016 commission proceedings. The defense had also filed a motion to preserve the Senate Select Committee on Intelligence torture report, which was granted in connection with this motion.

Next, Watkins asked if the defense was arguing that Brady material is not waivable. Jestin conceded that access to impeachment material can be waived. Under United States v. Ruiz, the Court upheld the constitutionality of a plea agreement that required waiver of certain types of Brady material. Watkins requested that the defense clarify its position that the only Brady material that can be waived is impeachment material in light of the Supreme Court’s decision in Ruiz. Jestin argued that while Ruiz releases the government from its Brady obligation to provide certain categories of material to the defendant, including impeachment material, the Court also stated that the government still has to comply with its obligation to provide exculpatory information, which is the kind of Brady material Khan is seeking. Khan’s sentencing trial will be contested, so the government has an obligation to provide favorable information to the defense.

Watkins asked the defense to support its argument that mitigation evidence is a type of exculpatory evidence. In response, Jestin contended that the evidence sought by the defense corroborates Khan’s account of his pretrial punishment and would be used to mitigate his potential sentence. The defense considers this to be core Brady material, as it goes to the fundamental fairness of the sentencing proceedings rather than the voluntariness of Khan’s guilty plea. As such, the evidence sought does not fall within the waivable category of information created in Ruiz. Jestin cited Johnson v. Zerbst, a 1938 habeas case, which states that the waiver of fundamental rights must be made explicitly.

Watkins asked the defense how United States v. Mezzanatto, which acknowledged that the prohibition on using statements made during failed plea negotiations and cross-examination of the defendant at trial could be waived, relates to the waiver of discovery for Brady material. Jestin argued that Mezzanatto stands for the more general proposition that certain rights are so fundamental to fair proceedings that they cannot be waived, which is what the defense argues is at stake here.

In rebuttal for the government, Cmdr. David O’Dowd stated that, regarding Khan’s right to call witnesses and present mitigation evidence at sentencing, the government has no objection. The government contends that Khan entered into a contract with the government—the pretrial agreement—in which he waived all right to discovery except for limited discovery under RMC 701(b)(1) and 701(d). O’Dowd stated that material under RMC 701(b)(1) was provided to Khan about seven years ago after he pleaded guilty. As to RMC 701(d), the government has already given the defense the single prosecution exhibit that the government plans to present at sentencing. The government does not plan to call any witnesses, so it has no names to provide to the defense. Additionally, in paragraph 12 of Khan’s pretrial agreement, he waived his right to discovery under RMC 701(e)(C), which provides for exculpatory evidence to reduce punishment.

O’Dowd noted that pretrial agreements benefit both the defendant and the government. Khan received certain benefits, including sentencing considerations and expert consultants, and the government received the benefit of a guilty plea, cooperation from the defendant and limited discovery obligations. In other military commissions, discovery has been a time- and resource-intensive process, and it is valuable to the government to have limited discovery obligations.

Watkins asked if the government had a response to the defense’s assertion that since Brady is not a discovery right, the waiver in the pretrial agreement does not apply. O’Dowd noted that the government’s motion addressed the implication of constitutional rights. Regarding Khan’s request for what the defense calls Brady material, the government believes this issue is covered under RMC 701(e)(C), exculpatory evidence to reduce punishment, which was explicitly negotiated in the pretrial agreement.

In rebuttal, Jestin pointed to Dickerson v. United States, which stands for the proposition that the rules of military commissions cannot supersede constitutional protections. Watkins questioned if Dickerson specifically stated that statutes cannot supersede commission regulations, to which Jestin replied it did not. Rather, Dickerson stands for the idea that the Supreme Court has plenary authority to interpret the Constitution and statutes cannot supersede the court’s decisions in that regard. As applied, this should also mean that rules cannot supersede Supreme Court decisions. Jestin stated that, during pretrial negotiations, the defense discussed with the prosecutor at the time the government’s providing Khan’s medical records, and the parties understood that Brady was not intended as a waiver. Rather, the waiver was intended to relieve the government of its obligation to prove its case against Khan beyond a reasonable doubt, per the colloquy between Col. James Pohl, who was then the military judge, and Khan.

Watkins expressed the possible concern that the parties did not have a meeting of the minds over the pretrial agreement. Jestin affirmed that the defense does not have that concern, but Watkins reminded the defense that the pretrial agreement is with the commission, not the former prosecutor. Jestin maintained that the defense’s position is that there was a meeting of the minds.

Defense’s Request to Compel Witnesses

The commission then turned to AE 030, a defense motion to compel the production of witnesses to testify in person for Khan’s sentencing. In the discussion of the Constitution’s application to military commissions earlier in the hearing, Dixon had argued that Section 949(a)(1) of the Military Commissions Act (MCA) makes the right to and process of obtaining witnesses analogous to that in Article III courts. Dixon emphasized that the process in Article III courts relies on the Fifth and Sixth Amendments. He also contended that the government has no argument in rebuttal of this point and does not cite any cases that side against providing Fifth and Sixth Amendment rights to Khan. Dixon recounted Boumediene’s holding that Guantanamo detainees “have a constitutionally protected right to petition for habeas.” The test laid out by the Supreme Court for deciding if certain constitutional provisions apply extraterritorially was whether “it would be impracticable or anomalous” for the court to recognize the right at issue. Dixon stated that here, the concern is over right to a fair trial, and the Supreme Court ruled in Rasul v. Bush that Guantanamo is U.S. territory in practical respects, so it would not be impractical for the commission to recognize Khan as having Fifth and Sixth Amendment rights. Dixon further argued that Khan’s citizenship is the only foreign component of this commission and he has asylum status in the United States.

The government requested that the commission hold an MCRE 505(h) hearing on this motion prior to an open session, to prevent errant release of classified information. The defense objected to the request, asking to proceed immediately to oral argument and stated that Khan had asked his counsel to reemphasize his need for the laptop for both privilege and rehabilitative purposes. Watkins recessed the commission briefly to consider the matter. Upon calling the commission back to order, Watkins rejected the government’s request, stating that some of the witnesses listed in AE 030 would not implicate the classified information concerns of RMC 505(h). Watkins requested that the parties refer to the witnesses by their defense-requested witness (DRW) number listed in AE 030. He then asked to hear from the parties if discussing DRW numbers 1, 2, 6, 7, 8, 9, 10, 11, 14, 17, 27 and 31 would implicate any classified information.

After the government and defense conferred with each other, the parties agreed that witnesses 2 and 31 needed to be discussed in a closed session. Lt. Col. Joy Primoli, counsel for the government, said that the government had reached an agreement with the defense that there is no need to discuss witnesses 15, 17 and 21 since the government agreed to produce them. Dixon clarified that the parties had agreed not to discuss witnesses 14 and 17 and that witness 17 would provide some kind of stipulated or substituted testimony. Dixon confirmed that the parties had not reached an agreement on witness 27.

Watkins clarified that witnesses 1, 6, 7, 8, 9, 10, 11, and 27 do not implicate RMC 505; the parties agreed; and Watkins asked to hear oral argument on those witnesses. Dixon argued that the witnesses are essential for Khan to make a credible mitigation case. The defense explained in AE 030 what the testimony of each witness would be at sentencing and why it would be relevant and necessary to Khan’s mitigation argument. Additionally, the government has not challenged that testimony, so the issue for the commission to decide is whether the testimony is relevant and necessary to a fair sentencing proceeding. Dixon argued that the government wants to avoid discussion of Khan’s torture in CIA custody and had raised the possibility of withdrawing from the plea agreement if Khan succeeds on this motion or on AE 028. Dixon suggested that it was illogical for the government to still intend to seek the maximum punishment for Khan because he is the only high-value detainee who has pleaded guilty and agreed to cooperate.

Dixon contended that regarding cooperation and sentencing, Khan’s case is one of first impression, given that only a few military commission cases have proceeded to sentencing and over half of those have been reversed on appeal. Other than Hamdan v. Rumsfeld, this is the only contested sentencing proceeding involving detainees, and Khan will be the first former CIA prisoner to be sentenced. Dixon added that the government has agreed to produce witnesses 1 and 8, but not to bring them to Guantanamo and instead to have them testify via video teleconference (VTC). However, the defense does not believe VTC testimony would suffice because witness 8 does not speak English and because the “emotional reaction” of that individual would not be adequately conveyed over video. Similarly, the testimony of witness 1 about Khan’s family and background would not be fully captured over video.

Next, Dixon argued that there is precedent in the military commissions system to call witnesses 1, 6, 7, 8, 9 and 10 for sentencing proceedings, as similarly situated witnesses were called from a foreign country for sentencing proceedings in the case of former Guantanamo detainee David Hicks. The defense also noted that witnesses 1, 6, 7 and 8 are U.S. citizens who have the same right to travel to Guantanamo as everyone in the courtroom. The government’s refusal to issue them country clearances is the only obstacle to them testifying in person. Dixon explained that while RMC 1001(e) allows for compulsion of witnesses at the government’s expense, witnesses 1, 6, 7, 8, 9 and 10 are willing to come voluntarily. The government’s decision to prosecute Khan in Guantanamo rather than in an Article III court in the United States should not change his right to call these witnesses, particularly those who are U.S. citizens. Dixon noted that other factors regarding these witnesses were to be addressed in the closed session.

Regarding witness 11, Dixon stated that the judgment to be made is whether Khan has a right to call this individual; ultimately whether the individual would appear is a decision for Khan to make in coordination with that individual. Witness 11 has previously been to Guantanamo in connection with this case for the government, and the government objects to bringing the individual back only because it determined that the individual would testify favorably for Khan. Dixon argued that this does not provide Khan equal access to witnesses and is not a standard that would be allowed in an Article III court.

Regarding witness 27, that individual has been to Guantanamo many times and will likely be back again for other cases, not only Khan’s. Dixon pointed out that witness 27’s predecessor in office testified favorably for the defense in Omar Khadr’s case and that witness 27 would do likewise with respect to Khan. Dixon noted that while witness 27’s predecessor gave testimony via VTC because the individual was deployed overseas, such logistics will not likely prevent witness 27 from testifying in person.

Witnesses 9 and 10 are foreign citizens with the requisite passports and exit visas, and the defense has been in communication with their home countries regarding their potential travel to testify in this commission. The defense does not expect any logistical issues regarding their travel. Dixon stressed that witness 10 is the most important witness for Khan and that if Khan has a right to call anyone, it should be this individual.

Watkins sought to clarify that all of the witnesses being discussed were those that the defense wanted for sentencing proceedings. Dixon stated that the defense did not want to waive Khan’s ability to call any of these witnesses for the purpose of motions, but that issue should be addressed in the closed session. Watkins then asked if the defense had interviewed each of the requested witnesses to confirm that their proffered testimony summarized in AE 030 would be consistent with their actual testimony. Dixon represented to the commission that the defense had been in regular contact with witnesses 1, 6, 7, and 8 and a little less regularly with 9 and 10, as they are overseas, since 2006. The defense has communicated with witness 11 and represented that the individual’s proffered testimony is based on an interview with the individual. The defense has also had direct interaction with witnesses 14, 17 and 27.

Next, Watkins asked the defense to address the commission’s authority to compel civilian witnesses to be present at the U.S. Naval Station Guantanamo Bay in light of Regulations for Trial by Military Commission 13-5.b, which says the commission has no authority to compel attendance on the island. Dixon offered that some of the witnesses will travel voluntarily. He then argued that witnesses 14 and 27 could be compelled under the regulation in connection with their official duties and responsibilities as employees of the U.S. government. Dixon noted that in agreement with the government, witness 17 will provide some form of substituted testimony. Watkins explained that he was more concerned about compelling witnesses who are not employees of the U.S. government. Dixon responded that those witnesses would appear voluntarily, with the possible exception of witness 11. The defense will continue to talk to that individual, and the commission does not need to decide today if a subpoena can be authorized if needed.

Dixon added that the defense had an agreement with the government concerning witness 21, but that there is disagreement between the parties over witness 27. Watkins asked if witness 27 will offer testimony that witness 21 cannot, to which Dixon answered affirmatively. Watkins asked for the defense to explain further, but the defense requested to do so in closed session. Dixon added that the defense is in frequent contact with witness 21 and regular contact with witness 27, as recently as a few weeks ago. Dixon also noted that he and Jestin have long-standing professional relationships with witness 27, so the request to testify did not come as a surprise to that individual. Watkins asked if witnesses 1 and 8 are the defense’s priorities to give in-person, as opposed to VTC, testimony. Dixon clarified that the defense would prefer witnesses 1 and 8 to appear in person, but the priority witness is witness 10.

Primoli responded for the government, first noting that the defense is asking the commission to order the government to continue to meet with the defense regarding the more than 80 other witnesses originally requested, but whom the government does not believe meet the requirements of RMC 701, 703, or 1001(e). Primoli added that the government did give the defense the seven witnesses the government had indicated. Primoli represented that the government agrees with the defense that Khan bargained for the right to call witnesses and present evidence in mitigation. However, Primoli argued that the pretrial agreement does not give Khan the right to call any witnesses he wants. Witnesses still have to comply with RMC 703(f) and the requirements of necessity and relevance.

The government further contended that regarding the witness list currently being discussed, excepting the witnesses for whom the government and defense have reached agreements, the remaining witnesses do not meet all five of the requirements of RMC 1001(e). Primoli noted that RMC 1001(e) does allow for alternatives to live testimony, to which the government has already stipulated for witnesses 1 and 8. The government confirmed it would not call any witnesses at Khan’s sentencing and would present only Prosecution Exhibit 1, which is the stipulation of facts to which Khan has agreed. In light of this, Primoli expressed confusion as to why the defense is alleging that the government will present an aggravation case against Khan. Primoli also cited several cases that hold it is less important for witnesses to be present at sentencing than it is for a case on the merits.

Moving to discuss witness 11, Primoli stated that the government had also talked to that individual. It had been originally proffered that witness 11 would testify about her expertise in terrorism, which the government did not believe she was qualified to do. After the defense requested the narrower list of witnesses, the government asked witness 11 again if she was willing to testify, and she said she was not—a subpoena would have to be issued to compel her.

Regarding witness 27, Primoli explained that the individual is currently stationed overseas. During Khan’s scheduled July sentencing, witness 27 will be on temporary duty and then in the process of a permanent change of station, so it would be an extreme burden for him to travel to Guantanamo to testify. Moreover, his testimony will be largely cumulative of witness 21, whom the government has already agreed to produce. Watkins asked if there would be an issue with having witness 27 testify via VTC. Primoli replied that the government did not necessarily have a problem with an alternative form of testimony if the individual met the necessity, relevancy, and other requirements and if his testimony would not be cumulative.

The government confirmed that it had agreed to produce witnesses 1 and 8 via VTC from the Mark Center in the National Capital Region. Primoli argued that the practical difficulties of producing Khan’s civilian family member at the highly secure detention facility in Guantanamo did not meet the burdens established by RMC 1001(e). Regarding witness 6, the government does not believe there are “extraordinary circumstances” compelling the production of in-person testimony. Primoli noted that several cases use that language, including one case in which the government did not produce the defendant’s father, who was overseas. Rather, it is standard to use an alternative form of testimony. Following this precedent, the government requested the commission deny the compulsion of witnesses who do not meet the RMC 1001(e) requirements.

In response, the defense argued that witnesses 21 and 27 are not cumulative of each other, even though Dixon conceded there is overlap, as they have different roles, responsibilities and involvement with respect to Khan and cover different time periods. Dixon also reasoned that since Khan has been at Guantanamo since September 2006, one or two witnesses could not adequately cover that entire period to show his extended cooperation for the purposes of sentencing. Dixon said the defense was not aware of any commission or court-martial case with a defendant who had cooperated to the same extent as Khan. Dixon added that while the defense would like to confer with the government about other witnesses, the defense is moving at this time only to compel production of 29 or 30 individuals. Dixon said that the defense has tried to meet and confer, but the government has not been willing to do so on the longer list of witnesses.

Next, Dixon argued that since witnesses 1, 6, 7 and 8 are U.S. citizens, the government’s position that it would be too burdensome to produce them in person is overstated. Dixon reasoned it would be no more burdensome for those witnesses to travel to Guantanamo than for the present courtroom observers, especially since the defense is not asking the government to bear the cost of their travel. Regarding witnesses 9 and 10, Dixon cited David Hicks’s case as precedent for directly comparable individuals, who were permitted to attend in person for sentencing and other purposes. The defense argued that preventing the production of witnesses 9 and 10 would not afford the defense equal access to witnesses, which is guaranteed by the Military Commissions Act. Dixon concluded by asking the commission to grant the defense’s motion.

Watkins stated that he is required by RMC to rule on AE 030C and would now recess the commission to do so. He concluded by confirming that an MCRE 505(h) hearing would be held the following day, April 2, and that a closed RMC 803 session might be necessary thereafter.

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The next session of the commission is scheduled for June 5-7.

Rachael Hanna is a recent graduate of Harvard Law School.

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