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This Week at the Military Commissions, 3/16 Session: Transporting Evidence from Yemen to Virginia

Isaac Park
Tuesday, March 21, 2017, 5:01 PM

It’s bright and early on a Thursday morning, and the military commission has reconvened for further pre-trial hearings in the Al-Nashiri case. After some preliminary matters, the commission turns to the matter at hand: the admissibility of evidence collected from the USS Cole.

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It’s bright and early on a Thursday morning, and the military commission has reconvened for further pre-trial hearings in the Al-Nashiri case. After some preliminary matters, the commission turns to the matter at hand: the admissibility of evidence collected from the USS Cole.

Yesterday’s testimony concerned various discrepancies between the date and time noted on evidence bags and corresponding entries in the chain of custody forms. Wary of these difficulties, Trial Counsel Mark Miller nonetheless moves for admission of a long list of more than fifty exhibits. This draws an objection from defense counsel Richard Kammen, who argues that there is a lack of foundation for this evidence and substantial doubt as to whether these exhibits been properly authenticated: “We don’t know who the actual collectors of most of this evidence is. It is random people doing random things under admittedly difficult circumstances, without proper documentation.”

To address the admissibility of this evidence, we will hear testimony today from two witnesses. Both will testify about the lines on the chain of custody form indicating how all this evidence made its way from a CONEX box (a storage/shipping container) in Yemen to a lab in the United States.

First we hear testimony from FBI Special Agent Jane Rhodes-Wolfe, one of the people who moved the pieces of evidence from the box to a ship. The CONEX box contained the evidence collected from the USS Cole and was secured by a lock. Because the security situation in Yemen was deteriorating, executive leadership decided to transport the evidence to a Marine ship for transport back to the United States. Rhodes-Wolfe, alongside another agent (Brenda Heck) and three others, retrieved the evidence from the CONEX box and moved it to a small Navy boat for transport.

From there, Rhodes-Wolfe testifies, they traveled to the USS Tarawa, an aircraft carrier. (“[T]o my surprise, the only way to board the Tarawa was via a rope ladder.”) All the evidence was hauled up to the Tarawa via “rope harness” and then secured in the brig. The cell was sealed with evidence tape, which was marked and dated with their signatures.

After five days, Rhodes-Wolfe and others retrieved the evidence from the brig and placed it onto transport helicopters. The evidence was flown to an Air Force Base in Oman, after which it was transferred onto a charter flight home. (Rhodes-Wolfe can’t recall whether, during the time in between the helicopters and the charter flight, the evidence was kept in secure boxes or containers.) Once they arrived in Norfolk, Rhodes-Wolfe and Heck met with agents from the New York field office to turn over the evidence.

To sum up, Rhodes-Wolfe testifies that she has “no information to believe” that anyone tampered with the evidence from the time it was taken out of the CONEX box in Yemen to the time it was dropped off at Norfolk.

With that, Miller goes through the tedious task of asking Rhodes-Wolfe whether it is her signature on each chain of custody form for the fifty-seven pieces of evidence that the prosecution seeks to move into evidence. Afterwards, the commission takes a ten-minute recess.

Upon reconvening, Assistant Defense Counsel Rosa Eliades begins her cross-examination. Eliades wants to explore certain discrepancies between the notations on the chain-of-custody forms and a report Rhodes-Wolfe completed identifying how the transfer of evidence was completed.

But first, Eliades is very interested in the report itself. It comprises three pages, the first and third of which relate to the chronology of the transportation of the evidence. The second page, however, is blank—save a “black rectangle on the lower part of the page” indicating a redaction. The rest of the report, Eliades establishes, contains some handwritten notes from Rhodes-Wolfe. She is unable, however, to proffer an explanation for the black rectangle. Eliades moves on.

The evidence was kept in the CONEX box for over a week. Eliades establishes from Rhodes-Wolfe that the box was likely made of metal, possibly unrefrigerated, and that it was “well over 110 degrees mostly every day,” which could have affected the condition of some of the evidence.

Eliades moves on to the chain-of-custody forms that accompany each piece of evidence. Rhodes-Wolfe admits that her name and others’ names are written in each others’ handwritings, but it’s the signatures that are important. For instance: “I see my handwriting up on top where I write out Finnerty’s name because I know . . . that was Finnerty who signed it and . . . someone looking at that may not be able to identify that signature.”

Eliades turns to discrepancies between the report and the chain-of-custody forms. For instance, for one piece of evidence, the transfer of the evidence from the CONEX box to the first ship is noted as 10/26 at 7:00 AM on the forms but as 10/25 on the report. Rhodes-Wolfe observes that “I either made a clerical error in my 302 [the report] or on the FD-192 [the forms] as I was capturing the narrative of the movement of the evidence.” Eliades asks whether which date is more accurate, and Rhodes-Wolfe is unsure.

Eliades then turns to the storage of the evidence on the Tarawa. It was stored in the brig, and Rhodes-Wolfe is sure that the cell was locked, although she does not remember how. Further, she used tape to ensure that the cell had not been opened or tampered. Eliades asks a “naïve question”: “[C]an you lift the tape and put it back on?” Rhodes-Wolfe recalls that it was “pretty stubborn tape” and that it would have been difficult to remove it without her noticing.

Eliades next asks about certain pieces of evidence that have no notation from Rhodes-Wolfe as to their transport from the CONEX box to the Tarawa. She establishes that there are “some items [where] the exact time and date they were transferred” had not been recorded. She asks Rhodes-Wolfe whether it is possible some items were transferred from the CONEX box to the Tarawa on a different day, without her knowledge. Rhodes-Wolfe is unsure, but doubtful.

After a twenty-minute break, Miller redirects Rhodes-Wolfe. She establishes that she took “every precaution” to ensure the evidence’s integrity between Yemen and Norfolk. With that, she is excused.

The commission next hears from Special Agent Kelly VanArsdale, an explosive and hazardous device examiner with the FBI. She traveled to Norfolk the day that the evidence was transferred over from Rhodes-Wolfe. Unfortunately, this means that the prosecution once again undergoes the tedious task of asking VanArsdale whether it is her signature on each of the chain of custody forms.

Afterwards, Kammen begins his cross-examination. He establishes that VanArsdale possibly didn’t fill out the chain of custody forms the day she received the evidence from Rhodes-Wolfe, but at a later date. Nonetheless, the date on the forms correctly reflects the date she received the evidence. That concludes Kammen’s questioning. With that, the witness is excused.

After some discussion about scheduling and other ancillary matters, Spath gavels the commission into recess. It will reconvene in July.

And here it is, your moment of zen:

ADC [MS. ELIADES]: May I approach?

MJ [Col SPATH]: You may.

A. Thank you. Uh-huh. Yep. Oh, okay.

Q. Go ahead and look through it. I'm yelling because I don't have a mic now.

A. I know you're not yelling at me. No problem.

Isaac Park is a student at Harvard Law School. He graduated with a B.A. from Yale University in 2013.

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