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

This Week at the Military Commissions, 11/15 Session: We’re Asking the Questions Now, Judge

Clara Spera
Friday, November 18, 2016, 10:53 AM

On Tuesday, the case of U.S. v. Abd al Hadi al-Iraqi was called back to session but, this time, not with the usual players. Colonel Peter S. Rubin of the USMC replaced Captain Waits as the military judge presiding over the commission. Because of this shake-up, which was not explained during the course of the hearing, Colonel Rubin opened the floor for voir dire. The trial counsel had no immediate questions for the judge, but the defense counsel, led by Brent Rushforth, spent the first morning session questioning the judge.

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On Tuesday, the case of U.S. v. Abd al Hadi al-Iraqi was called back to session but, this time, not with the usual players. Colonel Peter S. Rubin of the USMC replaced Captain Waits as the military judge presiding over the commission. Because of this shake-up, which was not explained during the course of the hearing, Colonel Rubin opened the floor for voir dire. The trial counsel had no immediate questions for the judge, but the defense counsel, led by Brent Rushforth, spent the first morning session questioning the judge.

First, Rushforth asks Judge Rubin about his history of military service, beginning with his United States Marine Corps Special Operations Command (MARSOC) at Camp Lejeune, North Carolina from early 2006 until summer 2008. Throughout the exchange, Judge Rubin outlines the type of work he did during that specific tour as the principal legal advisor to the commanding general, the people he worked for and with, the types of topics on which he was advising his commanding general (“everything from routine command investigations, ethics, fiscal issues, personnel issues, and any other matter that the general may need legal guidance), and the deployments of various companies.

Judge Rubin notes that there were two or three companies that deployed to Afghanistan during his time at MARSOC, but clarified that he did not support those missions specifically. He himself was deployed to Afghanistan's Helmand Province for a short period of time in 2011 to preside over courts-martial cases, for less than 45 days altogether. But, he explained, he never had the occasion to focus on anything at issue in al-Iraqi’s case. The cases he did handle were all military-related offenses, included a court-martial involving a Marine who fell asleep at his post.

Rushforth than shifts back to Judge Rubin’s time back in the United States, trying to decipher if the unit that Judge Rubin worked with ever collaborated with outside federal organizations, like the FBI or the CIA. Colonel Rubin answers in the negative, but explains that he had collaborated with units from the Department of Defense because they “fell under an Army command.” Judge Rubin can't speak to many of the activities of MARSOC: when asked “Did MARSOC ever conduct detain, capture or kill missions in Afghanistan?,” the judge responds that he did not know but would assume so. Rushforth asks about specific missions relating to the capture, kill, or search of specific individuals: Osama bin Laden, Ayman al-Zawahiri, and Mohammed Atef, Rusman Gunawan. Judge Rubin has the same answer for each: “I have no knowledge of that.”

A few more rounds of questions take place, going back to Judge Rubin’s earlier days in the Marines. Those questions mirror Rushforth’s earlier questions, touching on Judge Rubin’s job responsibilities, cooperation with other federal agencies, and Judge Rubin’s awareness or support of missions in Afghanistan, Pakistan, Iran, Iraq, and Turkey. The judge repeats same negative refrain when it came to asking about this knowledge of specific missions.

Rushforth then enters a line of questioning as towhether the judge has any past or current relationship with the case at bar: with the convening authority, the trial counsel, possible witness, or the evidence. Judge Rubin answers in the negative at every turn.

Things get a little more interesting when Rushforth asks Judge Rubin about past cases; for example, if the judge had ever focused on questions “regarding the admissibility of oppressive interrogation techniques other than physical acts.” Judge Rubin explains that he had, and noted a recent sexual assault case in which the accused alleged that the investigative service had employed such techniques to get a confession out of him. The judge said he denied the accused’s motions to suppress the statements because the accused’s decision to make the statements “was a free decision on his part.”

Rushforth then asks if Judge Rubin recalls any case in which he had ruled that the defendant or the accused had not been properly advised. The judge generally describes his involvement such cases, in which the accused are not provided their 31(b) rights—Military Rule of Evidence 305(c)(1) outlines the accused's Article 31 Rights Warnings, under which (b) is the right to remain silent—but cannot recall specific names or details of the cases. Rushforth follows up, asking if Judge Rubin had ever advocated as counsel for the admissibility of evidence derived from the use of torture or any kind of rough, physical handing of the accused, and the judge answers no.

In his final set of questions, Rushforth quizzes Judge Rubin about any personal ties to terrorism attacks to Americans, including offenses charged in this particular case. Once again, Judge Rubin said no. The early morning session ends when Rushforth requests a brief recess to confer with his co-counsel regarding their questions and if there were any grounds for a challenge.

Things really get underway in the second morning session, after both trial and defense counsel opt not to enter challenges against the military judge. After Colonel Rubin reads Hadi, his rights, the accused—who is now asking to be known by what he says is his real name, Nashwan al-Tamir—speaks, saying that he doesn't think he's had enough time to get to know one of the new members of his defense team, Captain Fischer. They two met just te morning before the hearing for approximately thirty minutes. Hadi says that he understands this was not Captain Fischer’s fault and suggests that a convergence of slow security clearance issues and the government canceling meetings were to blame. He concludes by acknowledging that, under advisement of Rushforth, he has not had the opportunity to approve Captain Fischer as part of his defense team. Rushforth follows by explaining that his understanding was that his client has approved Captain Fischer despite not having enough time “fully apprise and fully get to know” him but that he reserves “the right to kick him out if he finds some reason to kick him out later on.”

The second, somewhat dryer, order of business is the government’s objection to the defense’s request to withdraw an exhibit not identified or available to the public. From what we can gather of the government’s strong objection to the withdrawal, articulated by Lieutenant-Commander Spencer, the exhibit at issue is a defense counsel request for a transcript or record of previous 802 conferences, which take place before the official proceedings on the record and during which judges may rule on motion. The government’s opposition to the motion hints that the defense counsel may have suggested that Captain Waits, the previous military judge presiding over the commission, was using these conferences as a screen to hide mistakes that could be reversed later on. The government also takes issue with the last-minute nature of the defense’s request to withdraw the motion.

The defense counsel briefly responds, arguing that they certainly were not alluding to any impropriety or malfeasance on Captain Wait’s part, and they had simply requested to withdraw the motion because of a change in circumstances. The judge grants the defense request to withdraw the motion.

Next up, Colonel Rubin entertains the defense’s motion to allow the accused access to a computer without internet access but but with basic word processing capabilities. The defense explains that the government had already provided such computers to five other accused men that were charged pursuant to the 2009 Military Commission Act, just like Hadi. Major Hall, speaking for the defense on this motion, also notes the onerous nature of “snail mail” communication between defense counsel and the accused and explaines that such a device could potentially aid in the administration of the commission, especially when going through discovery. When Judge Rubin asks Hall if the computer would be “subject to search by government officials," Hall demurs: “The answer is in—if there is a security issue, the JTF already has the ability to search. If it is not a security issue, if it is between an accused and his legal team, then that search does not rise to a level of being permissible.”

For the government, Lieutenant-Commander Lincoln objects to the motion, first on the grounds that prisoners have no right to a laptop or similar devices under settled law. Second, Lincoln points out that the computer would do nothing to alleviate the hurdles of snail mail because, by the defense counsel’s own admission, the computer would not be internet capable, so all communication would still have to be sent through the postal service. Third, Lincoln argues it's inappropriate to compare the present case with the 9/11 commission, in which the accused were provided with laptops. That case involves many more documents to be sifted through, “almost 2 million pages worth of documents,” where as this case only has about 31,000 pages currently. In any event, the volume of discovery is not a dispositive factor on this question. Moreover, the other individuals that were provided with laptops were pro se. Finally, Lincoln says that that the defense has not even yet tried to get a laptop to the accused through other channels, and so requiring relief from the court is inappropriate.

In response, Major Hall explains for the defense that past cases had given the defense team the impression that a request for a laptop had to go through a military judge. And even if Hadi's computer does not have internet access, it would still expedite communication between the accused and his legal team, since they would be able to transmit information digitally over a disc. The pro se matter isn't an issue, either: the individuals accused in the 9/11 commissions were once pro se but now have full legal teams and have continued the use of their laptops. On the issue of arduous amount of discovery, while not at 2 million pages of documents, there is still a large amount and both teams are still in the process of receiving and requesting more documents.

Finally, Major Hall leaves the court with this: “In the end, sir, this is about speeding up the process. This is about using what already exists to help facilitate the preparation of a defense, the sorting through [of] the massive amount of information and getting ready to be in front of this commission, sir.” After more back and forth on this question, Judge Rubin finally says that he'll take the matter under advisement and later notify the parties of his ruling. The government gives it one more shot, pleading for Colonel Rubin to rule on the matter then and there. But Judge Rubin declines and gavels the commission into recess, to be reconvened on January 9th, 2017.

Clara Spera is a 3L at Harvard Law School. She previously worked as a national security research intern at the Brookings Institution. She graduated with an M.Phil from the University of Cambridge in 2014, and with a B.A. from the University of Chicago in 2012.

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