Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

Update on the Military Commissions: Continued Health Issues, Recusal Motion and a New Cell in 'al-Iraqi'

Emma DiNapoli, Rachael Hanna, Patrick McDonnell, Jacques Singer-Emery
Friday, September 13, 2019, 8:57 AM

The military commission trying alleged al-Qaeda commander Abd al-Hadi al-Iraqi reconvened Aug. 21-28. You can find previous Lawfare coverage here and here.

Northeast Gate, Guantánamo Bay Naval Station (Source: U.S. National Guard/Sgt. Jim Greenhill, National Guard Bureau)

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The military commission trying alleged al-Qaeda commander Abd al-Hadi al-Iraqi reconvened Aug. 21-28. You can find previous Lawfare coverage here and here.

A major focus early in the proceedings was the state of Hadi’s health and claims that it prevented him from participating in the military commission proceedings. The commission also addressed several other issues, including a recusal request based on a staff attorney’s transition to the Department of Justice, a challenge to the suitability of a new cell for Hadi closer to where proceedings are held, a challenge to the commission’s convening authority and several motions relating to the preparation of Hadi’s defense.

August 21

Military judge Lt. Col. M.D. Libretto called the proceedings to order. Of note was a recusal request, Appellate Exhibit (AE) 160, from the defense and that no other docketed motions continue until that request was resolved.

Libretto denied the defense’s motion to assign a different judge to preside over any part of the recusal motion as well as requests to delay other motions pending the outcome of that request. He then reopened voir dire.

Susan Hensler, counsel for Hadi, inquired into Libretto’s military retirement eligibility, which is in the next nine months. Libretto answered that he has not and does not plan to apply for employment with either the Justice Department or the Defense Department.

Hensler then started to ask about any procedures the commission takes to do conflict checks for members of the judges’ staff. Libretto responded that, while he was unaware of any formal policy, professional obligations require licensed attorneys to disclose all potential conflicts.

After additional questioning about the judge’s staff, Hensler turned to specific questions about the staff attorney whose departure to the Justice Department was the source of the recusal request. Libretto heard of the attorney’s impending transition last November but did little after the disclosure since the attorney was already transitioning off the case.

Capt. Corey Squires for the government had only two questions: whether the departed attorney made any judicial decisions and if Libretto was aware of any reason he did not faithfully perform the duties of a military judge. Libretto answered no to both.

The defense then raised Hadi’s health and his inability to focus on the current proceedings. After hearing several arguments on possible ways forward, Libretto broke for an early recess to allow Hadi to take whatever medication he requires.

After a three-and-a-half-hour recess, the commission reconvened. Hensler noted that Hadi was tired and in a lot of pain. Hadi was also upset. Furthermore, he had taken the maximum amount of pain medication he could. For these reasons, Hadi requested to be sent back to Camp VII. Instead, he remained in the cell in question, from which he was able to observe and participate by phone.

The hearing moved on to AE 163, a defense challenge to the suitability of Hadi’s accommodations near the Expeditionary Legal Complex. Lt. Cmdr. Jacob Meusch of the defense began by explaining that they believe there to be unlawful influence that impacts AE 163. He claimed that Dr. Sondra Crosby canceled a meeting with Hadi over perceived intimidation by Cmdr. Douglas Short, counsel for the government. Nevertheless, Libretto ruled that they would continue with testimony for the day and that the defense will have to make a formal filing of unlawful influence for the commission to take up that matter.

The commission then took testimony from the high-value detainee senior medical officer. After some initial background questioning, the officer recounted her interaction with Hadi during the long midday recess. She claimed Hadi appeared anxious and refused to answer her questions. However, she did not see any visible indications of pain.

The medical officer then recounted her Aug. 5 examination. She remarked that Hadi’s CT scan did not show any immediate cause for concern and that there appeared to be no complications from past surgeries. She went on to explain Hadi’s pain medication schedule. She noted that neither she nor her corpsmen had noted any prior complications with his regimen.

The medical officer then discussed the new cell, which was the source of contention in AE 163. Going down a list of features, the medical officer stated that the new accommodations are quite like Hadi’s current cell, minus a few modifications.

Lt. Mishael Danielson began cross-examination for the defense. Asking about the various drugs Hadi takes, the medical officer responded that some could cause confusion, vomiting, and anxiety, but these effects were often associated with overuse, withdrawal, or initial use.

Danielson went on to question whether the medical officer was aware of some of the recommendations of an occupational therapist who inspected the Camp VII cell. The medical officer knew it was inspected but indicated that she would have to check past reports for the details. She was unaware of any inspection of the new cell by an occupational therapist.

In answering questions from Libretto, the medical officer responded that she has no medical concerns with the new facility’s suitability. She also would have no expectations for Hadi to experience hallucinations, confusion, or severe side effects based on the medications he took that day.

After a brief recess, Libretto began his questioning of Lt. Col. Jack Gray, deputy commander of the Joint Detention Group and currently its acting commander. Gray responded that there are no safety concerns surrounding the new cell.

During the defense’s cross-examination, Gray noted that he was unaware of any certification process for the new cell. Additionally, he could not comment on the cell’s final completion since he had not viewed it in the last few days during which it was scheduled to be completed.

Libretto then asked if either side had any additional evidence to submit for AE 163. The defense claimed they could not submit what was originally planned because of possible unlawful influence on Dr. Crosby. Additionally, they challenged the credibility of the senior medical officer because she would not testify to the effects of the various pain medications. The government rebuked that assertion. The defense reemphasized the issue of voluntariness regarding Hadi’s absence because of pain.

After a brief recess, Libretto ruled that the defense had not met its burden of proof to justify the commission’s interfering in how the accused is detained, thus permitting the use of the new cell. Libretto also stated that Hadi’s refusal to use the new accommodations as well as his absence the following day would be taken into consideration by the commission in determining whether his absence was voluntary.

August 22

Libretto called the proceedings back to order. Since Hadi was absent and the defense did not believe it was voluntary, the commission canceled the testimony for the day. Before recessing, Libretto asked future witnesses to discuss their personal observations of Hadi over the past 30 days as well as his recent attendance with the current hearings. The purpose would be to determine whether Hadi's absences, both yesterday afternoon’s as well as today’s, were voluntary or involuntary. It would also assist in making voluntariness determinations in future sessions, if Hadi is again absent.

August 23

The commission reconvened with Libretto briefing defendant Hadi on the previous day’s hearing. Hadi confirmed that he understood the judge’s proposed course of action—namely, that Hadi would be present in any ongoing hearings for four hours each day, and that the court would encourage the Joint Detention Group commander to consider Hadi’s request to be detained in his normal location.

Libretto then stated that the day’s hearing would involve testimony from witnesses who have observed Hadi’s activities for the past 30 days in order to determine whether any absences by Hadi are or were voluntary or involuntary.

Before any witness testimony, Hensler noted that Hadi had not eaten for more than 48 hours and requested that the court recess the proceedings. However, Libretto determined that Hadi was capable of proceeding.

A member of the guard force at Camp VII was called to testify. He said that he had observed Hadi for approximately 15 of the last 30 days in his capacity as a guard, and that he had not observed the accused suffering any kind of spasms, severe pain, or other ailments that would interfere with his normal daily activities. He also confirmed that he would, as watch commander, be notified immediately if any such medical emergencies arose.

The guard noted that, on August 13, the defendant refused camp staff entry into his cell and was consequently locked inside. At that point, Hadi quickly walked to the cell door, striking it repeatedly with a closed fist. In a second incident, Hadi became upset when moved from his cell upon observing that his bedding had been removed.

Upon cross-examination, the guard acknowledged that he is responsible for managing the other guards at the camp for Hadi and the other defendants. He also stated that he has little interaction with Hadi on a day-to-day basis and that Hadi is typically seated in a recliner chair or moving using a walker.

Spencer, on behalf of the government, then noted that the guard who observed Hadi over the other 15 days out of the past 30 days is currently on duty and unavailable to testify. However, he stated that log records covering medical emergencies and other incidents are available for the court’s review.

The next witness, the assistant staff judge advocate (SJA) at the litigation support section in the Joint Task Force Guantanamo (JTF-GITMO), was then called to testify. She stated that she interacts with the defendant on a weekly or biweekly basis and testified that the defendant had requested his comfort items, bedding, and other belongings when being transferred to the commission. She testified that Hadi became very agitated when he saw his bedding being moved. The SJA recalled that Hadi pointed a finger at her and repeatedly said, “Do not mess with me,” in English. After his transport to the commission, the SJA stated that the defendant requested to speak with her, at which point he reminded her what he had said earlier that day.

She then stated that the defendant refused to sign any documents waiving his right to participate in the commission proceedings on three separate instances. Upon cross-examination, the SJA reiterated that the defendant seemed fully ambulatory and able to conduct cogent conversation. She noted that she had seen the defendant an estimated four times in the past 30 days, but that interactions with him had been brief.

After a recess, an additional witness (under the pseudonym “Dragon”) was called to testify. As internal security guard force at the Expeditionary Legal Complex (ELC), Dragon has observed the defendant at the ELC when present for commissions on a daily basis. He stated that he observed the defendant arrive at the commission on Wednesday (August 21) and testified that he did not observe any unusual activity with the defendant. He also stated that the defendant did not appear to be in significant pain and was able to communicate with others.

However, he noted that the defendant appeared agitated, particularly after being brought to his cell and observing that his bedding had been placed inside. Upon cross-examination, the witness discussed other possible causes of Hadi’s agitation, including seeing a shower and bathroom conditions.

Staff Sgt. “Frodo” was then called to testify. Frodo had observed Hadi over the past 48 hours, beginning on August 21. The witness stated that the defendant appeared more irritated than usual, including kicking his cell and yelling at the officer in charge. The defendant also tapped on his cell door and chair and hit himself with his hands. Frodo stated that he was aware that the defendant had not eaten for 36 to 42 hours at the time of these incidents and that the defendant was taking Valium for back pain. Frodo also confirmed that the defendant was offered food twice.

The defense then declined to request the testimony of an additional witness from the past 30 days. Libretto informed Hadi that the commission would reconvene in the morning. The session then went into recess.

August 24

The commission reconvened without Hadi present. The session began with more testimony from the assistant SJA, who stated that she read the defendant his rights waiver in the morning. She noted that the defendant signed the waiver and requested 10 minutes to write a letter to his counsel. The assistant SJA also testified that the defendant was standing upon her arrival, appeared alert, and did not express any reason as to why he did not intend to attend the day’s session.

After a brief recess, Libretto stated that the commission found that the defendant’s absence was voluntary and that the session could thus proceed. The day’s proceedings were focused on conflict-of-interest questions raised by the recent al-Nashiri decision, in which the U.S. Court of Appeals for the D.C. Circuit threw out three-and-a-half years’ worth of pretrial rulings by the military commission because the presiding judge was actively pursuing employment from the Justice Department at the same time.

Matthew A. Blackwood, an assistant U.S. attorney in the Western District of Missouri, was first called to testify. He had previously served as an attorney adviser and law clerk for the military commissions, where he worked on Hadi’s case. He stated that he currently works on national security, cybercrime, immigration and other issues. Hensler questioned Blackwood extensively about the process by which he applied for his current position. After a brief recess, Squires began cross-examination of Blackwood on behalf of the government.

Blackwood confirmed that he had relied on published ethical advisory opinions in determining what his disclosure obligations were as a law clerk while searching for employment, including whether submitting applications to other jobs alone creates a conflict of interest. Blackwood stated that he concluded that no conflict of interest was created by his applications for or acceptance of an assistant U.S. attorney position in the Western District of Missouri. Blackwood also stated that, during his time of employment with the commission, he never attempted to influence the military judge for an extrajudicial purpose (such as finding a new job).

Upon returning from a short recess, Capt. Waits, a retired military judge in the commission, was called as a witness. Meusch questioned Waits on behalf of the defense. Waits had previously declined to be interviewed by either the defense or the government.

Waits confirmed that he was the first military judge detailed to Hadi’s case in 2014 and remained judge on the case until December 2016. While presiding over the commission, Waits applied for positions as an immigration judge in the Department of Justice. He answered several questions about his job application process, before discussing relevant policies in the trial judiciary regarding conflicts of interest. Waits stated that he would have disclosed any conflicts of interest had he recognized them.

Waits also confirmed that he wrote Blackwood a letter of recommendation for postgraduate school and that Blackwood may have listed him as a reference in other applications. Waits also discussed other job applications, including an application for a position within the Criminal Law Division of the Navy Office of the Judge Advocate General (JAG).

Waits stated that, throughout his job search and while presiding over Hadi’s case, he did not disclose the status of his application process to any parties involved in the case. He also stated that he did not disclose to any parties that he was seeking postretirement employment with the Department of Justice and Department of Defense. However, Waits confirmed that, after the al-Nashiri decision was delivered, he informed the trial judiciary of the fact that he had previously applied for judicial positions through USAJobs, with the intent to notify the relevant parties in this case.

After a recess, the commission resumed with consideration of a defense motion under the AE 155 series to compel documents and information related to the job searches of Waits and Blackwood. Libretto denied the motion.

The day’s hearing concluded with arguments regarding the voluntary or involuntary absence determination that the commission must make regarding the past few days of the hearing in which the defendant was absent. The government argued that the defendant capitalized on his legitimate medical condition to control the proceedings. Danielson, on behalf of the defendant, argued that Hadi’s ability to attend hearings is affected by high doses of pain medications and constant pain stemming from his known medical condition. Danielson also noted that Hadi has sought to attend hearings whenever possible.

Upon return from a recess, the commission determined that the defendant has not suffered from any significant medical events beyond the normal limitations stemming from his underlying medical condition. The commission also noted that the defendant has been able to perform his ordinary tasks with little to no assistance. Libretto stated that the defendant’s objections and demonstrations of anger regarding the hearing were expressed forcefully and clearly, and that the defendant declined offers of medical assistance and medication.

The commission therefore found that the defendant’s absence for each of this week’s sessions was voluntary, and the commission went into recess for the weekend.

August 26

The commission reconvened on Aug. 26. Libretto first turned to the defense’s motion to dismiss the commission because the convening authority had a personal interest in its outcome. Retired Rear Adm. Christian L. Reismeier was present via video teleconference (VTC) as a witness for the defense.

Defense Counsel Hensler started by asking Reismeier questions about his appointment as the convening authority. While Reismeier admitted that his memory had gaps, he did recall disclosing his continued contact with the Guantanamo detainee program both times he interviewed for the position of convening authority. Reismeier discussed his time on the Detainee Policy Task Force and drafting parts of the Military Commissions Act. Reismeier noted that Brig. Gen. Mark Martins, chief prosecutor for the military commissions, was the co-executive director of the Detention Policy Task Force, but Reismeier said he did not work closely with Martins.

The questioning then turned to Reismeier’s recusal memo. Once Reismeier was appointed to the convening authority, he wrote a memo stating he had a conflict of interest in the al-Nashiri case. Reismeier also informed the commission that he helped the government prepare for a hearing in the case, assisted a prosecutor with writing a charging sheet and signed on to an amicus brief for an appeal in the al-Bahlul case. Reismeier concluded his direct examination by noting that there was no detailed or standardized conflict check for any incoming military commission judges during his time as the commission’s convening authority.

After a break, Spencer questioned Reismeier for the government. Reismeier stated that throughout his tenure on the military commissions, he never advocated for a particular result in any military commissions case. Reismeier added that as a military trial judge and an appellate judge, he never treated two cases the same way. Following this, Libretto released Reismeier from his duty as a witness.

After a break, the court decided to move arguments on the motions to dismiss to the next day and hear argument on the defense’s motion to compel discovery on two classified sites (Site A and Camp VII). Lt. Charles Ball, counsel for Hadi, argued that the government’s case hinged on statements that were made to a “clean team” of FBI agents but that “clean team” had previously worked with the CIA and knew the statements the defendant made when he was placed in the enhanced interrogation program. The defense stressed that its motion is looking to find evidence that will impeach government witnesses as well as help formulate Hadi’s mitigation case. Ball added that Hadi was entitled to all this information and that obtaining these facts directly ensured the defense’s arguments had force.

The government, represented by Cmdr. Short, responded that both sites were highly restricted areas. Further, Site A was abandoned and partially destroyed while Camp VII had been significantly modified. Short argued that the commission already issued an order protecting both sites and that the government subsequently provided adequate substitution evidence. Short then turned to the defense’s discovery request related to possible witnesses associated with Hadi’s detention and noted that none of these witnesses was present at Site A.

Libretto then asked Ball if there is any legal precedent, outside of Judge Pohl’s order in the 9/11 case, that stands for the proposition that a defense team gets access to a death row inmate’s cell. Ball requested more time to supplement his pleadings but noted that 18 U.S.C. § 3553 contains general guidelines for how defense counsel can properly access Camp VII, especially since their client is facing a life sentence. Libretto acknowledged this and granted Ball more time to supplement the pleadings. Short responded to this same prompt by distinguishing this case from Judge Pohl’s order in the 9/11 prosecution. Short argued that the 9/11 case involved five defendants who, unlike Hadi, are facing capital punishment and, in the 9/11 case, the government had initially agreed to allow defense counsel into Camp VII.

After a 10-minute break, the commission heard arguments on a defense motion filed after the government provided a sample of its discovery to the commission. Squires, counsel for the government, argued that the government's response to the defense’s initial discovery requests was extraordinarily broad. Squires also maintained that the discovery provided was everything the defense needed for its case. Squires stressed that the government chose to fight these newer discovery requests because if the government kept filling them, the defense would keep asking for more, and largely irrelevant, material.

In response, Meusch argued that the defense needed all this evidence to put its case together. Meusch maintained that, based on the discovery provided, the defense cannot figure out what role, if any, Hadi had in al-Qaeda.

After this exchange, Libretto concluded arguments for the day.

August 27

When the commission reconvened, Libretto outlined the docket for the day: first, AE 157, defense motion to dismiss on the basis that the convening authority has a personal interest in the commission; second, AE 158, a defense motion to dismiss on the basis that the military judge and law clerk sought employment with the Department of Defense and the Department of Justice; and third, AE 160, defense motion seeking Libretto to disqualify himself under Rule for Military Commissions 902.

Libretto noted that the defense had sought to compel Fred Taylor, a senior attorney adviser on Libretto’s staff, to give testimony related to AE 158 and AE 160 earlier in the week. At this point, Libretto declared that the commission was denying the defense’s motion given that Taylor’s testimony would be cumulative of testimony already on the record.

Libretto then moved to AE 157. For the defense, Meusch argued that Convening Authority Adm. Reismeier should be disqualified under the “type three accuser” and “appearance of partiality” standards. In 2015, Chief Prosecutor Martins invited Reismeier to a briefing that the defense believes concerned the issue of charging conspiracy as a law of war offense. After Reismeier attended the briefing, the Washington Legal Foundation asked Reismeier to sign on to an amicus brief in support of the government’s position on conspiracy as a law of war offense. In Hadi’s case, the legal validity of the conspiracy charge he faces is a central issue. Hadi’s case was pending at the time that Reismeier signed on to the amicus brief. Reismeier had supported the government’s position regarding pending military commissions cases in which conspiracy was charged.

Meusch also enumerated other contacts Reismeier had had with Martins and the Office of the Chief Prosecutor prior to assuming his role as convening authority. Meusch noted that Reismeier had recused himself from presiding as convening authority in al-Nashiri and al-Bahlul. On these grounds, the defense maintained that Reismeir had demonstrated bias in favor of the prosecution and should be dismissed unless the military judge believed he had the authority to disqualify Reismeier as an appropriate remedy instead.

In response, the prosecution explained that Reismeier had merely signed the amicus brief; he had not read the government’s briefs. While the D.C. Circuit largely adopted the amicus brief’s position in al-Bahlul, the fact that Reismeier agreed with that position is irrelevant. Every convening authority has to agree with the prosecution to some degree to refer charges in the first place. Additionally, Reismeier’s contacts with the prosecution were to provide expert guidance, and he had only professional interactions with Martins, including through his participation in a moot court for the prosecution. There is no indication that he would not be fair and neutral in his role as convening authority in this case. Reismeier’s self-recusal in al-Nashiri and al-Bahlul, which the prosecution maintains was overly conservative, does not indicate that recusal should be compelled in Hadi’s case.

Libretto then denied a defense motion to compel discovery related to other purported connections between Reismeier and Martins. Later the following day, Libretto also denied the defense’s request for materials related to the moot court in which Reismeier had participated, finding it to be immaterial to disqualification. The defense’s dismissal motion remained under advisement.

The commission then moved on to address AE 158 and AE 160, which sought to dismiss due to the alleged conflicts of interest Waits and Blackwood had during their time with the commission.

Libretto sought to draw a distinction between the Justice Department being a party to the commissions, which was the specific finding in al-Nashiri, and the Navy being a party to the commissions, given that the structure of military justice means that the Navy would be a party to any commission proceeding. The defense insisted that, following al-Nashiri, Waits and Blackwood’s contacts with the Justice Department were extensive enough and that the question of whether everyone in the military commissions system is laboring under an unconstitutional conflict of interest need not be reached.

Following a brief recess, the government responded. Squires first argued that the defense had failed to demonstrate that the conflict-of-interest standard had been met with regard to Blackwood; no reasonable person would believe that the presiding military judge in this case would be partial simply because a former law clerk had begun looking for postclerkship employment. The “bad fact” of late disclosure by Blackwood about his applications for employment with the Justice Department while serving in the military commissions erroneously assumes that he had an obligation to disclose this information as a law clerk in the first place.

Regarding the military judge’s conflict of interest in light of al-Nashiri, Squires explained the government’s position to be that the D.C. Circuit’s opinion had not changed the totality of the circumstances test to determine if a conflict exists. Since the facts of this case differed from those in al-Nashiri and did not suggest the military judge in this case had demonstrated partiality, the outcome of al-Nashiri would not be warranted here. Even if the appearance of impartiality of Waits’s application to the Justice Department warrants some remedy, it certainly does not warrant dismissal of the case wholesale. An appropriate remedy, if the commission was to find that Waits should be disqualified, would be for the commission to review the four classified information substitution motions that he ruled on during his tenure.

In response to Libretto’s question as to whether al-Nashiri created a per se rule that a military judge’s employment application to the Justice Department automatically creates the appearance of partiality, Squires distinguished Hadi on the basis of the lack of a factual record in al-Nashiri. The procedural differences between this case and al-Nashiri mean that the totality of the circumstances test applies to this case; one factor alone cannot be dispositive in all cases. Libretto then recessed the commission until the following day.

August 28

The final session of the week’s hearings began with AE 156, a defense motion to compel production of discovery relating to the rules of engagement. To support the motion, Hensler for the defense compelled the testimony of Lt. Col. Edward Martin, director of the Center for Law and Military Operations (CLAMO) at the Judge Advocate General’s Legal Center and School. Martin testified to his responsibilities in training deployed troops on the rules of engagement (ROEs) and training JAGs in operational law. The defense then asked about the request it had made to Martin’s office for ROE materials from 2001 to 2006 related to Iraq. Martin explained that, after conferring with the Office of the Chief Prosecutor, the defense was not authorized to access the requested materials, which are housed in a classified vault. Martin noted that his office normally fields requests for information only from operational law professionals and that CLAMO does not respond to material requests for criminal or civil litigation matters.

On cross-examination, Cmdr. Kevin Flynn for the prosecution asked Martin to clarify the nature of his contact with the Office of the Chief Prosecutor. Martin explained that he had reached out to ensure that the office was aware of the discovery request. Martin also confirmed that one needs to have an access badge, an escort, and a need to know to access the classified vault at CLAMO.

Following Martin’s testimony, the defense further expounded on the reasons for requesting ROE materials. Hensler explained that the government alleges that Hadi engaged in perfidy in connection with an attack that involved a vehicle-borne IED (VBIED). An interview conducted about this attack, included in the discovery in the AE 156 series, indicates that, due to concerns over VBIEDs during the period from 2001 to 2006, the ROEs were less stringent than the current ROEs. Hensler argued that if the vehicle used in the attack for which Hadi is charged would not have qualified for civilian status under U.S. ROEs, then Hadi’s conduct may have been less perfidious than otherwise indicated, which could be relevant for mitigation.

In rebuttal, Flynn argued that the ROEs would be irrelevant to establishing a lack of deception with regard to the perfidy charge because the victims’ subjective belief regarding the civilian status of the attackers determines whether or not deception was employed. Flynn stated that the only two relevant ROEs—a NATO ROE relevant to the perfidy charge and the standing U.S. ROE for an attempted perfidy attack—had already been turned over to the defense. Libretto took the matter under advisement and indicated he would issue a ruling shortly.

Next, the commission took up AE 159, a defense motion to compel discovery related to Rear Adm. John Ring’s publicly stated concerns about Hadi’s conditions of confinement. The defense articulated its belief that Ring, the former JTF-GTMO commander, was fired in connection with his investigation of conditions at Camp VII and his public statements about the inadequacy of medical care for the detainees at the detention facility.

Responding for the prosecution, Flynn explained that the government had already turned over extensive information concerning the accused’s conditions of confinement and that Ring’s concerns had been about long-term detainee medical care, not present conditions. Most importantly, Ring’s firing had nothing to do with his public statements; he was relieved for mishandling classified information.

Following a brief recess, Libretto ruled on AE 159, ordering the government to search for or request from relevant agencies any documents directly tied to the accused’s conditions of confinement that may have formed the basis for Ring’s statements and disclose them to the defense. However, the commission denied the defense’s request for information concerning why Ring was fired, finding such information to be irrelevant.

Finally, the commission heard arguments on AE 150, a defense motion requesting a defense mitigation expert. The defense requested such an expert due to defense counsel’s lack of expertise in presenting a mitigation case in a noncapital case. The prosecution argued that the defense team was eminently capable of putting on a mitigation case and should already have prepared one at this point in the litigation.

The military judge then recessed the commission until the next hearing, scheduled for October.

Emma DiNapoli is a human rights lawyer with REDRESS, an international human rights organization that represents victims of torture in obtaining justice and reparations. She works primarily on advancing transitional justice in Sudan, and has previously worked in Lebanon, Jordan and Palestine. Emma is a graduate of Columbia Law School and the University of Virginia.
Rachael Hanna is a recent graduate of Harvard Law School.
Patrick McDonnell is a graduate of Harvard Law School and the Princeton School of Public and International Affairs. Previously he spent five years as an Army intelligence officer with deployments to Europe and Afghanistan. The views expressed here are his own and do not reflect those of any agency or department of the United States Government.
Jacques Singer-Emery is a graduate of Harvard Law School and previously spent four years in the New York Police Department (NYPD), first as a policy advisor to Police Commissioner Bratton and then as a Case Analyst for the NYPD Intelligence Bureau. He is the Editor-in-Chief of the National Security Law Journal and a researcher for Professor Philip Heymann and Professor Blum. Jacques graduated Magna Cum Laude from Princeton University in 2013.

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