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This Week at the Military Commissions, 4/25 Session: 51,000 Pages of Documents and Some Earrings

Emma Kohse
Saturday, April 29, 2017, 12:04 PM

We are back for the second—and last—day of hearings this week in the case of Abd al-Hadi al-Iraqi. Military judge Marine Colonel Peter Rubin gavels us in. He notes that the same parties are present as when recess was taken yesterday, with the addition of defense counsel Brent Rushforth, who had missed the first session due to a medical issue.

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We are back for the second—and last—day of hearings this week in the case of Abd al-Hadi al-Iraqi. Military judge Marine Colonel Peter Rubin gavels us in. He notes that the same parties are present as when recess was taken yesterday, with the addition of defense counsel Brent Rushforth, who had missed the first session due to a medical issue.

The court gets right back into the question of Hadi’s ability to waive his right to be present, with Navy Captain Jeff Fischer arguing for the defense. Fischer notes that in the 9/11 case, the defendants are permitted to enter a written waiver to skip sessions after the initial one. He rebuts the government’s argument from the previous day that the rule requires “an extensive colloquy on the record” to ensure a truly voluntary waiver, and drives home his point by reminding the court that even fundamental rights grounded in the Constitution are nevertheless subject to waiver. Judge Rubin is concerned about how the written waiver would be executed in practice—would defense counsel be present when the defendant signs the waiver? Fischer thinks this would be preferable, but not required, and notes that Judge Rubin would have the option to check with the defendant as to the voluntariness of the waiver.

Lieutenant Commander B. Vaughn Spencer presents the government’s response. He is concerned that calling the defendant’s waiver voluntary when he chooses not to attend to avoid being touched by a female guard might be a “land mine”—potentially reversible error. Therefore, the government’s concern is protecting the record through a procedure at least as robust as that used in the 9/11 case. Fischer has the final word on the subject:

If I heard Commander Spencer correctly, he basically argued that…if Mr. Al-Tamir [what Hady says is his real name] decides he wants to watch television instead of coming to court, that’s okay. But if he doesn’t want to be touched by a female guard, he needs to be force-cell-extracted and brought in here and explain to you that he doesn’t want to be touched by a female guard before you can excuse him. That’s just completely illogical, Your Honor.

Next up is a defense motion concerning conflict of interest in the legal team. Fischer explains that Air Force enlisted personnel from the Military Commission Defense Organization, including a paralegal who has worked on the Hadi defense team for two years, are rated for promotion annually by a board that includes members from the Office of the Chief Prosecutor and the office of the convening authority. Because the conflict was government-created, Fischer argues, the proper remedy is dismissal or abatement rather than simply removing the paralegal from the team. Judge Rubin questions Fischer on whether defense counsel has discussed this issue with their client; they have, Fischer confirms, but not to the point of a potential waiver of the conflict.

For the government, Navy Commander Douglas J. Short offers three counterarguments. First, he challenges the commission’s authority to change the evaluation and promotion processes of the armed services. Second, he highlights that the personnel member in question is a paralegal, not an attorney, and can be walled off from any conflict. Third, he explains that the senior officers who sit on the board do so because they have expertise about the kind of work done by Military Commission Defense Organization personnel. Judge Rubin questions why it would not be preferable to exclude prosecutors from the board to avoid the appearance of a conflict, but Short maintains that there are not enough other senior officers familiar with the paralegals’ work. Fischer gives a brief reply, emphasizing that cordoning off one of their three paralegals would not be feasible on their short-staffed team.

Next, the defense presents its request that the government inform the accused whether he will be released if acquitted or at the completion of a sentence, rather than retained in detention. Rushforth stands to argue for the defense, situating the motion as part of preparation for one of the “most important…military trials in the history of the United States.” In order for the trial to be meaningful for his client, he continues, the accused must know whether there is a possibility that he will be released. Moreover, without this knowledge, defense counsel cannot give informed advice about, for instance, whether Hadi should plead to a lesser charges to avoid a life sentence. Rushforth acknowledges that there is no case authority to support such a request, but maintains that it is nevertheless warranted given the unprecedented nature of the situation:

I don’t believe that perhaps the United States has ever faced this kind of situation where we are in at least one and perhaps two or three forever wars, global war on terror; GWOT, it is called. And those wars may, as we are told by people in the Executive Branch, go on essentially forever, certainly for our lifetimes.

Judge Rubin asks Rushforth whether what the defense is requesting is actually knowable, given that it will be a decision in the hands of future government officials based on context at that time. Rushforth responds that if they do not know the government’s intentions, there is “no purpose in conducting this trial.”

In response, Spencer seizes on Judge Rubin’s question, arguing that the defense’s request is “impossible” without “a crystal ball.” Spencer also disclaims the idea that the government could keep Hadi in detention indefinitely, as this authority is limited by the authorization for use of military force (AUMF). Contrary to the defense’s assertion, the AUMF “is not vague or confusing,” Spencer argues. The proper vehicle for a challenge to Hadi’s detention as an unlawful alien enemy belligerent would be a habeas proceeding, and the military commission does not have the authority to order the government to decide the issue of Hadi’s future detention. After a brief rebuttal by Rushforth, the court takes its first ten-minute recess of the day.

When the commission is called to order, the defense is set to argue a motion to dismiss the referral with prejudice. Newly appointed defense counsel Adam Thurschwell argues that in passing the 2006 Military Commissions Act (MCA), Congress did not intend the convening authority to have a prosecutorial role. This dual role is a violation of the due process clause, he argues, and therefore either the current procedures violate the MCA, or the MCA as passed is unconstitutional. What follows is a lengthy history of American military commissions, in which Thurschwell emphasizes that military commanders served as the convening authority consistently until 2003. When, as now, a dedicated civilian operates as convening authority, the due process exception for military commanders serving in dual roles recognized by the D.C. Circuit in 1979 in Curry v. Secretary of the Army is inapplicable.

To the defense, the problem is that the convening authority refers charges, which is a prosecutorial function, as well as details panel members and possibly modifies findings or a sentence after trial, which are judicial functions. Thurschwell cites a specific example of the conflict this dual role could cause his client: Hadi must seek funding from the convening authority for experts to challenge the veracity of Ahmad Darbi’s testimony—which was secured in exchange for a plea agreement approved by the convening authority. This is “the kind of inherent conflicts of role that—the combination of prosecutorial and judicial roles that the Secretary, in implementing the MCA, has created,” Thurschwell says. This conflict exists because of the functions of the convening authority, irrespective of the formal names given to various actors in the military commission process. After a lengthy explanation of military history and due process jurisprudence, in the absence of questions from Judge Rubin, the court takes a brief recess.

The commission reconvenes shortly to hear Spencer’s counterargument for the government. From his perspective, the defense relies on two misunderstandings, either of which “would be sufficient to pull down the house of cards that their argument is essentially constructed as.” First, Spencer argues that the convening authority does not, in fact, fill a prosecutorial role in the military commission. Congress modeled the power of the convening authority in military commissions after that in the court-martial system, and intended to authorize the same functions. Second, the distinction between military commander and civilian bureaucrat drawn by the defense is not meaningful, as the ultimate authority to convene military commissions rests with the Secretary of Defense. Even if the convening authority himself is a civilian, he acts “under the umbrella of the Secretary of Defense’s authority.” Moreover, Spencer, says, two other military commissions have ruled that the convening authority acts in an administrative, not prosecutorial, capacity.

Judge Rubin asks Spencer to discuss the government’s argument that courts-martial and military commissions both operate with a “disciplinary” goal, and he responds that holding law of war detainees accountable conceivably impacts the good order and discipline both of forces at large and U.S. troops specifically. Thurschwell disagrees, distinguishing the meaning of discipline for courts-martial purposes from the more general meaning of discipline in the sense of “holding accountable” that could describe the goal in any civilian criminal trial. With this issue thoroughly aired, the commission breaks for lunch.

The final session of the week addresses two defense requests to compel production of discovery. Navy Commander Aimee Cooper addresses the court, arguing that the discovery request is specific and tailored to the charging instruments, in which the government alleges that the accused was a leader of Al Qaeda. “The defense walks straight down the government’s charge sheet in AE 020A when it requested the information,” she says, seeking documents relevant and material to the training camps and guesthouse her client allegedly ran, his alleged role in the al Qaeda senior advisory council, and his alleged membership in the al Qaeda insurgency.

Lieutenant Commander David Lincoln responds that “requesting discovery is not simply regurgitating a charge sheet,” and that the categories of information requested—such as “information relating to the accused’s leadership role within al Qaeda”—are very broad. Therefore, the burden on the government of responding to each category of requested information would be too great, and much of the information would fall in the category of “analytical work product.” He points out that the defense team has requested materially similar information in prior discovery requests. Judge Rubin steps in to clarify the government’s position that it has fulfilled its discovery obligations, but that discovery is not yet complete due to the process by which classified materials are turned over to the defense. He pushes Lincoln on the status of the pending discovery matters, and Lincoln confirms that they will produce them “as soon as humanly possible.”

Cooper stands to have the final word for the defense, explaining that they have filed multiple requests because their initial discovery requests were rejected as too broad. The discovery that has been turned over—including 51,000 pages of documents, “and just as an example, earrings”—is not uniformly relevant. Lincoln responds that request for information about the picture of the earring is of the level of specificity that the government could address, but Cooper objects to the idea that the defense team should have to ask what each individual document is for “as opposed to going down the charge sheet and asking them what they have that supports the evidence in the case.”

After a final brief discussion as to whether Thurschwell’s potential conflicts of interest have been fully addressed (they have, says Judge Rubin), the session ends. The commission will hold its next round of hearings in the last week of June.

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.

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