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

This Week at the Military Commissions, 3/8 Session: Wouldn’t It Be Nice to Talk About the Cole?

Emma Kohse
Sunday, March 12, 2017, 12:46 PM

Editor's Note: Our military commissions coverage will be out of order this week due to difficulties in accessing transcripts from the Office of Military Commissions website. As such, coverage for Wednesday, March 8th has been published before coverage for Tuesday, March 7th. We apologize for the inconvenience.


Published by The Lawfare Institute
in Cooperation With

Editor's Note: Our military commissions coverage will be out of order this week due to difficulties in accessing transcripts from the Office of Military Commissions website. As such, coverage for Wednesday, March 8th has been published before coverage for Tuesday, March 7th. We apologize for the inconvenience.


Pretrial hearings continue in United States v. Al Nashiri with a full day on Wednesday. Military Judge Colonel Vance Spath calls the session to order, noting that the usual parties are present, including “the accused,” and briefly outlining the topics covered in a closed session the previous afternoon. In addition to the consideration of classified issues in several exhibits, there was a discussion about whether certain testimony of a “senior medical officer” and defendant Nashiri could be conducted in an open session—Judge Spath determined that it could. On the agenda for today: “argument and some testimony in relation to Appellate Exhibits 359K, 092HH, 369D, and 369.”

First up, the testimony of Army Captain Hsienjan Huang. But before this, chief prosecutor Assistant U.S. Attorney Mark Miller clarifies that whether the cross-examination of Nashiri can be conducted in an open session remains an open question. Judge Spath responds that it’s on the list of motions for today, and turns to Richard Kammen for the defense to check whether there is anything else to clarify before proceeding. Kammen indicates that he thinks they are not yet finished briefing Exhibit 359K, and makes a statement concerning the suffering of the victims and family members of victims of the USS Cole attacks:

[I]t bears repeating here, that one of the tragedies in this case beyond, obviously, the fact that Mr. Nashiri has not, in our view, received adequate treatment [for PTSD], that those folks [the victims and family members] have not received adequate treatment as well.

Following that message, he moves on to a “less dramatic” issue—a defense expert scheduled to be present at preadmission of evidence hearings next week is out of hours. Judge Spath asks the government to help resolve this issue to avoid a delay, and what follows is a confusing back-and-forth about the expert’s role, which Judge Spath quips might be due in part to the fact that he has “only had a little bit of coffee so far.” The parties wind up more or less on the same page—the defense is entitled to an expert, but the government has not conceded whether this expert’s testimony regarding the evidence gathering procedure will be admissible.

After these preliminary matters have been dealt with, witness for the defense Captain Huang is brought up on VTC and sworn in by Army Colonel John Wells of the prosecution. Rosa Eliades handles the direct examination, which gets off to a slow start with the push of the “security classification button” and some ensuing technical difficulties. Captain Huang, who is a legal advisor with the Terrorism and Criminal Investigations Unit of the U.S. Army, was assigned to review behavioral health records “to ensure that…every page of every document was disclosed to the defense.” In response to Eliades’ questions, he testifies that he reviewed documents for information covered by the psychotherapist-patient privilege to “wall off the prosecution from potentially privileged information.” This was done by working with the IT office to put the files in a “different network folder with limited access.” The issue is whether the prosecution somehow had access to privileged material, and if so, what remedy is appropriate for this breach of Military Commission Rule of Evidence 513.

When Eliades follows up with questions about Captain Huang’s other responsibilities, Miller objects: “We don’t want to have a spill or anything like that.” Judge Spath clarifies that this motion is only concerned with “the prosecution’s alleged access” to privileged information. He “just want[s] to know if [Captain Huang] did his job.” Wells suggests that the testimony “would go smoother” if the prosecution took the direct examination instead of the defense, prompting Judge Spath to comment on the general atmosphere midway through this full week of hearings: “We’re all a little grumpy today because we’re in day three. As we get into six or seven months, that should be entertaining.” But Eliades is allowed to continue, walking Captain Huang through the process he took to create a log of the psychiatric medical records, look for gaps in the chronology of those records, and then submit the log for classification. At this point, Judge Spath calls for a 15 minute “comfort break.”

The session reconvenes with the continuation of Captain Huang’s direct examination, but the audio feed is unavailable for the first 18 minutes after the break. When audio resumes, Eliades is asking about classification markings on the psychiatric records. All documents with classification header and footer markings were not of a kind covered by psychotherapist-patient privilege, Captain Huang says.

The subject of questioning turns to how members of the prosecution team could have accessed the records. Captain Huang testifies that he did not have to sign paperwork indicating he had access to the records or limiting who he could discuss the contents with, although he was verbally ordered not to discuss them with the prosecution. Several minutes later, Eliades mentions that there is a DOD policy requiring records to be kept of “anyone who is provided these records for nontreatment purposes,” of which Captain Huang was unaware. Eliades pushes him on whether he turned over parts of the psychiatric records that he deemed non-privileged to the prosecution, but he insists that he did not, even though “not all of the information on a psych record is a privileged communication from a patient to a psychotherapist.”

Direct examination ends with a series of questions about how Captain Huang came to testify. He explains:

I first heard informally that the defense was requesting my identity. Shortly thereafter—I don't recall the date—I heard that the defense wanted to speak with me. I then sought clarification with my leadership on the administrative, who, what, when, under what circumstances I should meet with the defense, who else would be present. And then when I went back to Colonel Wells with the clarification or the approval, I think he was clarifying with defense the how of getting me to speak with the defense prior to the testimony. And then before that was resolved, I was notified that I would be called to testify.

Eliades seizes on this example of communication between Captain Huang and Wells, a member of the prosecution team. She asks whether they work in the same office (part of the time) and how often they speak (a few times a week). But Captain Huang reiterates that they did not discuss “the contents of the records or any potentially privileged information.” The defense yields the witness to the prosecution for cross-examination.

Representing the government, Wells takes a much more open-ended approach with the witness, asking him to describe the process in hi s own words. He walks through much of the same content as on direct examination—his comparison of digital and paper records, looking for gaps in the chronology or other indications of missing material to produce to the defense. He emphasizes that “[n]o members of the prosecution had access to the [network] folder.” As part of his task, Captain Huang reviewed medical records in addition to psychiatric records, and Wells asks questions to demonstrate how differently these two types of records were kept. Psychiatric records were “in a different location” and in a different kind of folder, marked “psych” on the outside. The record custodian, tasked with controlling access to the documents, is the camp psychiatrist. Finally, Wells asks whether Captain Huang discussed the contents of the health records with the prosecution team, naming them member by member; Captain Huang answers uniformly in the negative.

On redirect, Eliades (interrupted briefly by an unexplained siren) is primarily concerned with the 82 pages of psychiatric records turned over by Captain Huang following his review of the full records, rather than in the initial round of disclosures. Captain Huang explains that many of them were misdated, which could have caused them to be overlooked during the first round of disclosures. Eliades asks who was responsible for the original disclosure, but Captain Huang says he does not know, and Miller objects to her line of questioning about those who made the original mistakes. But Judge Spath, annoyed that cross-examination was largely a repeat of direct, has questions on this subject as well. He helps Captain Huang clarify the procedure concerning misdated pages of documents—they were marked with Bates numbers and turned over to the defense along with the identifying log, but the other pages of the documents that had already been disclosed were not re-sent.

Eliades’ last questions return to the theme of access to privileged information. She asks if Captain Huang brought psychiatric records or notes with him during his review of medical records, which was partially conducted in the presence of the person tasked with a complete review of medical records. He says no. And she wants to know who else had access to the records, according to the camp psychiatrist. Captain Huang reports that the previous psychiatrist and members of the staff would have had access. Finally, with the assistance of Judge Spath, Eliades confirms that the prosecution team may provide feedback to Captain Huang’s supervisor concerning his performance, although this has not yet occurred. With that, Eliades finishes her questions, requesting that Captain Huang be subject to recall.

After a brief follow-up from the prosecution, largely concerning communications between Wells and the witness, Judge Spath excuses Captain Huang subject to later recall. He explains to the prosecution that he allowed the scope of testimony to be somewhat broad, over their objections, “so we do this once, not come back and forth over and over.” And with the testimony completed, the session breaks for lunch.

When the commission reconvenes after lunch, the same parties are present. The afternoon session begins with a frustrated Kammen and the same issue of the expert who is out of hours that was addressed in the morning. “Part of the reason we're so tired is we spend our time dealing with what I will call pointless administrative nonsense that really gets in our way of practicing law,” he explains. This particular “administrative nonsense,” is appears, is that their expert on the handling of explosive residue evidence was approved to travel to D.C. despite having run out of hours, but because the convening authority had not signed an official memorandum of understanding, the expert now cannot be paid. The issue is time-sensitive because the defense claims they need his presence for the hearings to continue next week. Kammen argues “we’re fighting over nickels in this environment, which is insane and bureaucratic whatever,” and Judge Spath appears to agree that the government is in the wrong:

The bottom line, this is easy math. If you don’t think Mr. Kammen is entitled to him, we should be having that fight, but we should have probably started that fight as soon as you knew he anticipated him being here… Just to have him here for the cross-examinations of the number of witnesses that you’re going to call, that’s not abnormal.

Wells stands his ground, pointing out that the prosecution is not kept abreast of the defense experts’ hours use, and questioning the relevance of his role. But Judge Spath appears fed up with these types of secondary issues: “We are down here a lot dealing with motions. Regardless of the culpability of the accused in this case, wouldn’t it be nice to spend a week talking about the Cole?” Given the tight hearings schedule and his haste to get to actually “hear about the Cole,” Judge Spath asks Wells to reach out to the convening authority to help move things along.

With that discussion tabled for the moment, Judge Spath moves on to 092HH, a motion to compel discovery. Continued frustration on display, Kammen notes how many similar motions have been before the commission. The “context of 092HH,” he explains, is an underlying “paranoia” that given past government misconduct, the defense cannot always trust what the government produces in this case. Now they are requesting information about an “ex parte request by the prosecution to allow the government” to destroy a location under public order to be preserved, which the government has indicated was the result of the mistake of “a low-level functionary paralegal” who failed to produce information to the defense. Kammen argues that even if a hearing confirms the government’s story, as the morning’s testimony seemed to, a hearing should still be had:

So all we ask is to strip away the veil of secrecy about all of this, to air it all out, even if it’s in a closed session. Let’s see if these people exist, let’s see if these e-mails exist, let’s see if this stuff exists.

In response to this argument, Major Michael Pierson for the prosecution musters the law on his side, citing the D.C. Circuit, Supreme Court, and military standards for materiality and relevance in discovery: “[M]ateriality is defined as a reasonable probability that if the evidence is not disclosed, a resulting guilty verdict could be called into question or enables the accused to significantly alter the quantum of proof in his favor.” The requested information, Pierson argues, would not support or undermine the government’s account of what happened. And moreover, even if they had received prompt notice of the motion, “favorable remedy was not likely available.” With a nod to Judge Spath’s concerns about getting to the crux of the case, Pierson accuses these motions of “tak[ing] up precious bandwidth.” Kammen responds that “the issues is, of course, not guilt or innocence. The issue is legitimacy of the proceedings.”

With that, the commission moves on to 369D, a motion to compel discovery concerning Ahmed Al Darbi, who pled guilty to helping to plan the attack on the Limburg and spoke to interrogators about al Nashiri while detained. (As Kammen puts it, “he’s a cooperating co-defendant, he’s a snitch, call it what you will.”) Kammen argues that a full picture of how he was treated during detainment is necessary to assess the reliability of his information, including details of the interrogation techniques used against him. The defense is also requesting information about a deal between Saudi Arabia and the United States concerning the transfer of Al Darbi, who is a Saudi citizen, back to his home country; the prosecution is claiming this transfer as a reason that Al Darbi will not be able to testify to the commission. This information is particularly important, Kammen says, because in his mind, Al Darbi “in in many respects [the prosecution’s] case.” And the defense wants to ensure that it has sufficient time with the produced documents to prepare for Al Darbi’s deposition.

Judge Spath calls for the last brief break of the day. When the commission is again called to order, he asks for an update on the issue of the defense expert’s hours. Wells reports that the request “appears noncontroversial” and will likely be approved. Kammen points out that this still doesn’t solve the problem of his nonpayment for past work, and Wells agrees to “pursue it.”

Back to 369D. Pierson starts to describe the “thousands of pages of discovery” that the government has already produced related to Al Darbi, but Judge Spath intervenes to say he believes this, but would like to work through the motion to compel part by part. Pierson explains at length in what stage in the production process the various requested documents are, asserting for the most part that the government has been responsive to the requests. The prosecution objects to the discovery of Al Darbi’s medical information though, and asserts that they have not reviewed psychotherapy information “in an abundance of caution” of the psychotherapist-patient privilege.

Kammen interjects to say that Nashiri is not feeling well and would like to be excused, which prompts Judge Spath to call it a day in the interest of “giv[ing] everyone time to reassess and get ready for tomorrow.” There will be more busy days of hearings before the parties can satisfy Judge Spath by reaching the issue of the U.S.S. Cole.

Emma Kohse is a J.D. Candidate at Harvard Law School, where she serves as editor-in-chief of the Harvard International Law Journal, and a 2012 graduate of Georgetown University's School for Foreign Service.

Subscribe to Lawfare