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This Week at the Military Commissions, 7/12 Session: Deja Vu All Over Again

Quinta Jurecic
Friday, July 15, 2016, 2:50 PM

And we’re back—though not to the 9/11 case or the Al Nashiri case, but instead to the pre-trial hearing of Abd al Hadi al Iraqi. As Nora Ellingsen detailed when Hadi’s case first came before the commission in May, Hadi has been charged with serious violations of the law of war in his alleged role as an al Qaeda commander who oversaw a series of attacks in Afghanistan, Pakistan and elsewhere.

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And we’re back—though not to the 9/11 case or the Al Nashiri case, but instead to the pre-trial hearing of Abd al Hadi al Iraqi. As Nora Ellingsen detailed when Hadi’s case first came before the commission in May, Hadi has been charged with serious violations of the law of war in his alleged role as an al Qaeda commander who oversaw a series of attacks in Afghanistan, Pakistan and elsewhere.

During the May hearing, Hadi requested that he be called by his “real name,” Nashwan al Tamir. But the judge, Navy Captain J. Kirk Waits, is having none of that and neither is the prosecution. While they insist on calling the accused by the name of Hadi, the defense counsel stick to calling their client Tamir—giving the impression that both sides are talking past each other even more than they usually do.

Judge Waits opens by reviewing the 802 conference held by all parties the previous day. There’s been a shakeup of personnel among the prosecution, the only civilian prosecutor is no longer assigned to the case and a slew of new military personnel have been added to the bench.The judge then runs through the topics to be covered at today’s hearing: a motion regarding representation of the accused, the defense’s objection over learning that a member of the prosecution team has been listed as a prospective witness, and the defense’s loss of their security officer.

As agreed during the conference, Judge Waits begins by hearing the defense’s motion regarding representation. According to lead defense counsel Brent Rushforth, the issue at hand is that Hadi “does not have his choice of counsel.” Hadi has chosen a team of five civilian counsel: Rushforth, trial counsel James Szymanski and Robert Palmer, constitutional law scholar Erwin Chemerinsky, and international law scholar Catherine Moore. The trouble is only Rushforth has his security clearance, the others are still waiting—just as they were as of May 19th, when Judge Waits commented that it was in the government’s “best interest” to move forward on the clearances.

Before Rushforth gets any further, Judge Waits starts criticizing the defense’s propensity to frame all pleadings as motions for continuance, regardless of subject matter. Rushforth argues that, given the nature of the motion, the defense has to position it as a motion for continuance: the hearing cannot continue until Hadi has his choice of counsel. He urges Judge Waits to push the government to grant clearances, saying that “the United States believes there will be absolutely no consequences to it for completely ignoring this court's admonition.”

Rushforth argues that the motion “presents the court with a question that is simply stated but which has profound consequences: Is this proceeding governed by the Constitution of the United States of America?” If so, he says, Hadi has the right to counsel of his choice under the Sixth Amendment.

Lieutenant Commander Spencer of the prosecution begins his response to Rushforth by quoting Yogi Berra: “Your Honor… it’s deja vu all over again.” This is the third time the defense has filed a motion of continuance on the basis of this same argument, and Spencer is tired of it. Instead of tackling Rushforth’s constitutional argument directly, he argues that section 506 of the Rules for Military Commissions and the Rules for Courts-Martial govern and entitle Hadi to only one civilian counsel. Following the doctrine of constitutional avoidance, he argues, the commission doesn’t need to address the constitutional question over an examination of the “broad statutory rights” provided by RMC 506.

Spencer also objects to Rushforth’s complaint regarding the lagging security clearance process. He notes that would-be counsel, Chemerinsky, hasn’t yet completed the SF-86 paperwork required to initiate the clearance process. Additionally, Szymanski and Palmer are both eligible for an interim secret clearance while they wait for their top-secret clearances to come through, which would allow them to take part in some—though not all—of the defense team’s activities.

But Judge Waits is incredulous. Isn’t Spencer going to address Rushforth’s constitutional argument? “You just went straight to assuming the Constitution applies,” he says. “Are you not going to talk at all about the argument that the Constitution doesn't apply?” He goes on, “I can't make you argue something you don't want to argue. I just don't understand why you're not arguing it.”

Rushforth takes issue with Spencer’s characterization of the clearance process. He claims Chemerinsky did, in fact, complete the missing form. And while Szymanski and Palmer do have interim secret clearances, those clearances won’t allow them to do crucial things like speaking to Hadi and reviewing “critical evidence.”

With that out of the way, Rushforth turns again to the Constitution. “Regarding the doctrine of constitutional avoidance,” he argues, “that doctrine is inapplicable in these proceedings unless the government is conceding that the Constitution governs these proceedings. If they are so conceding, we accept it, and then perhaps they can talk about the doctrine of constitutional avoidance. But the first matter is, does the Constitution apply to these proceedings?”

“That’s an interesting argument,” says Judge Waits.

But Waits isn’t about to let Rushforth off the hook. The judge begins grilling Rushforth on the defense’s request for more counsel as a delaying mechanism to prevent the hearing from moving forward. Rushforth assures him this isn’t the case: the defense would never try such a tactic, because the judge would obviously see through it. Judge Waits gives the defense until the end of the week to submit evidence that Chemerinsky really has completed that pesky SF-86. And with that, the commission heads into a brief recess.

After the recess, the court takes up several housekeeping issues. Rushforth notes that, as was discussed during the 802 conference, a member of the prosecution has been called as a potential witness. Spencer clarifies that even though the individual in question is “currently a member of the prosecution team,” the government has no plans to bring him forward as a witness.

Judge Waits then moves on to another issue discussed during the conference: the defense team’s loss of their interim security officer, who has departed a full month before their permanent security officer returns from his mobilization as a military reservist. Rushforth explains that though the defense has requested another interim security officer from the government, they haven’t received one, and proceeding without a security officer “frankly gives me the heebie-jeebies, to use a technical term.” Judge Waits finds that the defense can work directly with the chief security officer at the Office of Special Security as an interim measure until their permanent security officer returns, assuring the defense that their communications with the officer will remain privileged.

Next up is the defense’s motion for appropriate relief regarding attribution of speedy trial delay—over the objection of Lieutenant Commander Keith Lofland of the defense, who argues that the issue won’t be ripe until Hadi’s four additional civilian counsel arrive and the defense is granted discovery to additional documents.

Though Judge Waits directs Lofland away from the constitutional right to a speedy trial and instructs him to focus on RMC 707 instead, Lofland insists on the Sixth Amendment as the “bedrock fundamental issue” to be addressed. He’s returning to Rushforth’s argument regarding the necessity of first adjudicating the Constitution’s applicability in order to then determine the applicability of constitutional avoidance. Otherwise, he says, “The government's argument is based frankly on the astonishing assertion that it may engage in a criminal proceeding invoking the sovereign power of the United States without the limitations imposed on any criminal proceeding by the Sixth Amendment.”

Once again, the government declines to grapple with the constitutional argument. On behalf of the prosecution, Commander Kevin Flynn confines his reasoning to RMC 707, which he sees as limiting assurances of a speedy trial to a confined time period before the military commission is assembled. Lofland disagrees on this reading of the statute, but declines to ask for a reconsideration of the commission’s previous findings of excludable delay—though he indicates that the defense may do so in the future. The commission recesses again.

Back in session, the commission now takes up the defense’s motion to withdraw Appellate Exhibit 20, a 2014 motion in which the defense moved to dismiss Hadi’s case for lack of personal jurisdiction, on the grounds that Hadi’s status as an "alien unprivileged enemy belligerent" had yet to be determined by a CSRT. Now, Major Robert Kincaid argues for the defense that AE020 was prematurely filed. The defense lacked access to “the vast majority of discovery,” when AE020 was filed, he says. Moreover—you guessed it—the motion “was filed in violation of the accused's right to counsel of choice,” since the additional four civilian counsel were still waiting for their clearances at the time.

Judge Waits requests that the defense stop complaining about their general difficulties with discovery and relate those difficulties to the matter at hand: what does discovery have to do with “the issue of whether the commission is a competent entity to determine the issue of personal jurisdiction or whether the commission should, must order a CSRT Article 5 tribunal” in order to adjudicate Hadi’s status as a belligerent?

Funny you should ask, says Kincaid. The defense can’t know whether or not the commission can determine personal jurisdiction without their international law expert, Catherine Moore—one of the civilian counsel waiting on a security clearance. They need Professor Moore to look over United States v. Khadr and determine whether the Court of Military Commission Review’s holding, that the commission can decide a defendant’s combatant status, holds in this case.

For the prosecution, Major Kristy Milton objects to the defense’s attempt to relitigate the commission’s jurisdiction over Hadi. She points out that the Court of Military Commission Review has recently upheld Khadr in its June 9th ruling in Nashiri.

Kincaid fires back by noting another recently decided case: RJR Nabisco v. The European Community, which the US Supreme Court decided on June 20th, and which addresses extraterritorial applicability of domestic statutes (specifically, of RICO). Insofar as the MCA also involves extraterritoriality, the defense will need to look into how RJR Nabisco affects Hadi’s case. Judge Waits seems somewhat baffled by this argument, but isn’t immediately hostile to it.
With that, the judge wraps up early. Though Hadi’s pre-trial hearings had originally been scheduled to take place over the course of this week, it seems the court is now recessed until its next scheduled session on September 19th. The commissions will be quiet until next week, when Judge Pohl returns and hearings for the 9/11 case begin once again.

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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