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This Week at the Military Commissions, 10/18 Session: Mushrooms and Kangaroos

Alex Loomis, Quinta Jurecic
Friday, October 21, 2016, 12:15 PM

Hearings continue today at Guantanamo in the USS Cole case. Military judge Air Force Colonel Vance Spath calls the commission to order and quickly informs the lawyers that he has signed the writ of attachment compelling the testimony of Navy Reserve Lieutenant Commander Stephen Gill, who refused to travel to the Mark Center in Virginia to testify by video-link yesterday.

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Hearings continue today at Guantanamo in the USS Cole case. Military judge Air Force Colonel Vance Spath calls the commission to order and quickly informs the lawyers that he has signed the writ of attachment compelling the testimony of Navy Reserve Lieutenant Commander Stephen Gill, who refused to travel to the Mark Center in Virginia to testify by video-link yesterday. For the defense, Richard Kammen asks whether Gill will be “held in jail for three months” if he fails to testify tomorrow. Judge Spath doubts it, but says that he has no idea how all this will play out. As far as he’s concerned, the matter is out of his hands.

Stay motion

Judge Spath moves on to the defense’s “motion to abate pending the resolution of the United States v. Dalmazzi, which is at the Court of Appeals for the Armed Forces [CAAF].” Navy Lieutenant Commander Jennifer Pollio of the defense argues that the court should not “hear any argument on motions impacted by the” Court of Military Commissions Review (CMCR) because Dalmazzi has called into question the “structural validity” of that court. Specifically, the defense is challenging “the appointment of military officers to the CMCR under a provision that was intended to appoint civilian officers to the court.” Judge Spath seems doubtful that the CAAF had any authority over the CMCR, but Pollio replies that the district court gives CAAF “great deference on military matters.”

Judge Spath says, “Great deference is a lot different than binding authority.” He then questions why he had authority to put a stay in place when the CMCR had removed this stay.

“This is an ad hoc system,” says Pollio.

Judge Spath disagrees and cuts her off, saying she needs to cite a case or law. Pollio appeals to a military judge’s basic equitable powers to issue a stay in “the interests of justice,” notwithstanding the CMCR’s independent decision to lift a similar stay. But if Judge Spath were to reject this position, the defense would rather the commission move forward on issues unaffected by the CMCR’s potential defective structure.

For the prosecution, Navy Lieutenant Jonathan Cantil argues that a stay is inappropriate because the CAAF has no authority over the CMCR, and the CMCR’s lifting of the stay is “preclusive.” Waiting for Dalmazzi might mean not taking up this issue again until July 2017. “The defense is seeking to delay these proceedings,” he says. With that, Spath gavels the court into recess for ten minutes.

After recess, Pollio calls Michael Quinn as a witness, testifying from the Mark Center. Quinn was a Staff Judge Advocate and worked as legal advisor and chief of staff for the Office of the Convening Authority starting in 2013. Pollio begins by asking about information-sharing within the office to track legal cases. Talk turns to General Vaughn Ary, who resigned over purported unlawful interference in Guantanamo cases. Ary was concerned that the judiciary lacked resources to properly handle classified information but not really “the pace of litigation.”

Quinn briefly left his post and returned after the commission had disqualified the legal advisors and Gen. Ary. At that point, he learned that Gill was taking some administrative responsibility for the Nashiri case, but testifies that Gill “was never formally appointed” as legal advisor.

Pollio begins quizzing Quinn on the role of Mark Toole, the supervisor for all legal advisors before Toole’s disqualification by Judge Spath following the same unlawful influence controversy that led to the resignation of General Ary. Quinn would meet frequently with Toole to discuss all pending cases minus Nashiri, and was not informed of any potential involvement by Gill or Toole in Nashiri. Gill expressed concern to Quinn that Toole was defying the judge’s order by continuing to discuss Nashiri, but Toole reassured Quinn that he was only providing advice about the process of the case rather than its substance. While Gill raised complaints again, he was unable to provide Quinn with any specifics regarding the nature of Toole’s behavior.

Testimony from Michael Quinn

Pollio moves on to a judicial order to provide Nashiri with an MRI. The order was discussed around the office, but not with Toole, although Toole was included on an email chain on the matter. At one point, Gill apparently suggested bringing Nashiri to a Native American reservation equipped with an MRI machine because “because U.S. jurisdiction doesn't apply there.” “Commander Gill sometimes had some ... ideas that were different,” Quinn says.

Pollio now wants to discuss the circumstances of Gill’s firing. Quinn doesn’t fully recall, saying that Colonel Edward Sheeran dealt with the matter.

After a ten-minute recess, the court returns to session—this time without Nashiri. Kammen confirms that Nashiri voluntarily waived his right to be present and can view the proceedings through a video feed in his cell, but Brigadier General Mark Martins (for the prosecution) rises to argue that Nashiri be physically present in court to waive his attendance. Judge Spath disagrees, but says that he will address the issue if Nashiri can’t make it after lunch.

For the prosecution, Navy Lieutenant Paul Morris begins to cross-examine Quinn. Quinn confirms that the Convening Authority did not have any discussions about moving the trial judiciary to Guantanamo—the controversial order, known as “Change 1,” that led to Ary and Toole’s disqualification from the case—and says that when he returned as legal advisor, he never acted on any legal matters in Nashiri. After Morris shows Quinn a variety of emails and memos sent during his second stint discussing “protective measures” to keep Nashiri discussions separate from other discussions, Quinn states that “no precluded legal advisors, including Mr. Toole ... provided any legal advice on the Nashiri case before [he] arrived there or during [his] tenure.”

Quinn then comments on Gill’s work product and performance: there were issues regarding how Gill structured legal memos, and Quinn was concerned with Gill’s “temperament.” “I mean, everybody has issues,” he says, “but Lieutenant Commander Gill presented issues far and above what we were equipped to handle.”

The court recesses for lunch, and when it returns, Nashiri is back. He confirms—with a thumbs-up—that he voluntarily waived his appearance because he wasn’t feeling well.

Pollio now begins redirect with Quinn, reviewing a memo that Quinn put together on resources available for the defense, the prosecution, and the trial judiciary. Quinn says that he often discussed resourcing issues with Ary, but was not aware of anything regarding “Change 1.” Pollio then notes a memo written by Sheeran on Gill’s ostensible misconduct and points out that Sheeran refers the issue to Toole for further details. She’s trying to determine to what extent Toole was involved in the Nashiri case through supervising Gill even after Toole’s disqualification by the judge.

Quinn says that Toole, in his role as legal advisor, was supervising Gill on non-Nashiri related issues. Judge Spath then breaks in to question Quinn as to whether he has “any personal knowledge of a disqualified legal advisor communicating with the convening authority regarding recommendations or decisions to be made in this case.” Quinn says no, including the absence of any conversation with Toole on the MRI order.

The judge lets Quinn go, but not before telling him that that the motion at issue will likely not be resolved this week. He orders Quinn to abstain from discussing his testimony or the matters at issue in the case until the motion has been decided.

With Quinn gone, Kammen breaks in to update the commission on Gill’s status. Gill spoke with the Office of Military Commissions in D.C. this morning, letting them know that he’ll be traveling today to attend a military funeral and that he intends to file a request for reconsideration as soon as he has email access.

But it seems that Kammen spoke too soon—the prosecution’s Mark Miller announces that Gill has been taken into custody, in a military-commissions first. They’ll get him to the Mark Center to testify as soon as possible.

Ex parte communications between prosecution and CMCR

With Gill’s arrival imminent, Judge Spath moves on to non-Gill matters. He begins quizzing Martins on the government’s promise to provide him with a binder containing all the prosecution’s ex parte communications with the Court of Military Commissions Review. Though the binder did eventually appear, it took a few days longer to arrive than the judge would have liked, and the prosecution ended up adding to the the binder with several additional ex parte submissions.

Kammen jumps in to complain about ex parte communications between the prosecution and the CMCR. Judge Spath suggests that such communications might be perfectly appropriate if the take place in a purely administrative capacity, but Kammen disagrees. He cites U.S. v. Barnwell, a Sixth Circuit case that “reversed a criminal conviction after discovery that there had been ex parte communications between the prosecution and the judge,” and refers to Barnwell’s description of the defense as “mushrooms kept in the dark.” This is “beyond unethical,” he argues. If the prosecution is trying to influence the CMCR, “that is a crime.”

Kammen begins to spin out a theory that the prosecution has been systematically exerting influence on the CMCR to quickly iron out problems and make a good impression on the D.C. Circuit before that court handed down its decision regarding the military commissions’ jurisdiction in Nashiri. He argues that Judge Spath has an obligation to look into the potential of unlawful influence not only on the part of the prosecution, but also on the part of the judge’s superior court, the CMCR. “At this point, you are the only one who can bring transparency to the process,” Kammen says. And before Judge Spath gavels the court into a ten-minute recess, Kammen makes one last point: “At the end of the day, we’re the mushrooms here.”

Once the court returns to session, Martins is up, and he’s ready to hit back at Kammen—or, as he puts it, the “so-called learned counsel”:

We, as advocates here on this side of the courtroom, have been perhaps too sanguine that the trial judicial system will reign in such defense abuses, have perhaps erred too greatly on the side of equanimity and discipline, when a more appropriate posture may perhaps have been emphatic rebuttal of the nonsense that we hear from the other side of the courtroom so routinely. To rebut so-called learned counsel's antics in every instance or even more than occasionally could simply reward the defense with the delay and the disruption they do seek … But here the innuendo and baseless accusations have crossed the line …

Judge Spath pushes Martins to respond directly to Kammen’s criticisms. Martins is only too glad to do so. He points to a series of defense motions: (1) a motion to throw out the charges against Nashiri for his role in the Limburg oil tanker bombing for lack of jurisdiction, on which Judge Spath ruled in favor; (2) a motion to strike an aggravating factor that the prosecution required in order to seek the death penalty; and (3), a petition for a writ of mandamus to disqualify the judges on the CMCR who were to hear the prosecution’s appeal of Judge Spath’s ruling to throw out the Limburg charges. As Martins views it, Kammen’s current argument is based on Kammen’s “self-described paranoia” that the prosecution exerted unlawful influence to push the CMCR to rule against the defense on the first and second motion.

Now Martins and Judge Spath get into an extended tangle over whether or not the judge can release the ex parte documents that Kammen wants. Martins argues, variously, that the disclosure of the binder’s contents would harm the public interest and that the communications in the binder implicate judicial privilege and can thus legitimately be excluded from discovery. Judge Spath gets Martins to clarify that the core of his argument rests on judicial privilege, but the judge is skeptical: “This is hardly their [the CMCR judges’] deliberative process. It’s things like parking spaces, General Martins.”

Eventually, Judge Spath again reaffirms that the ex parte communications are administrative and therefore are not discoverable, exhorting Kammen to trust him “if you have faith in me, as you’ve indicated at times you do.” He suggests that the prosecution sit down with the defense and share the communications independent of any motion for discovery so that the court can just get on with things.

Martins says he’ll consider it and asks that the judge hold off from ruling on the matter for now. “I won’t rule tonight,” says Judge Spath.

Kammen is less than pleased. There must be something incriminating in these communications, he argues, because if there isn’t, why would the prosecution be fighting tooth and nail to keep them from the defense? He launches once again into an attack on the military commissions in general and the CMCR in particular, saying that it’s “an insult to kangaroos to call it a kangaroo court.” (Notably, he is wearing his trademark kangaroo lapel pin as he says this.)

The prosecution announces that Gill will be testifying from the Mark Center at 9am tomorrow. That’s all for today, with one closing moment of zen to round things out:

MJ [Col SPATH]: I like to engage in discussion.

LDC [MR. KAMMEN]: I appreciate that, and I enjoy the, you know, the banter. Not the banter, the colloquy.

Alex Loomis graduated magna cum laude from Harvard Law School. While in law school, he interned in the International Affairs Division of the Office of General Counsel of the Defense Department, as well as the Office of the Legal Adviser at the State Department. He graduated cum laude from Harvard college in 2012.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.

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