This Week at the Military Commissions, 9/8 Session: The “Kangaroo Lapel Pin” Edition

When you take an 18-month break, it’s unsurprising that you’ll return home to some cobwebs that will need to be swept away. The second of three days of motion hearings in the Nashiri military commission continues where the first left off: with another round of housecleaning focused on establishing the itinerary for the remaining two days.

The military judge, Air Force Colonel Vince Spath, begins the proceedings by noting that Nashiri is not in attendance. The prosecution swears in a witness, an unnamed Army major serving as the staff judge advocate, to explain why: Nashiri waived his right to be present at the hearing earlier this morning. For the defense, Richard Kammen cross-examines the major and confirms that Nashiri is aware that he will be able to attend the court’s afternoon session if he so wishes.

With that, Judge Spath lays out his plans for the day: The court will hold two open sessions before and after lunch, with a classified 505 hearing later in the afternoon on the defense’s Brady motion.

For the government, Lieutenant Cherie Jolly questions whether that 505 hearing has already taken place: “Sir, respectfully, we believe we already had that session in March 2015.” It appears that a brief 505 had been held in March 2015, but the judge punted on the full session because he had not yet reviewed all the relevant documents. Judge Spath clarifies that he will hold a full 505 session this afternoon.

Both the government and the defense agree that a closed hearing should also be held on the classified filing AE92—a filing so classified that it can’t even be named but which appears to concern the government’s destruction of a black site. As Kammen puts it, “there’s absolutely no way to have that discussion without it being in closed session.” But Mark Miller, the head prosecutor, flags that a decision might need to be made between an in camera or ex parte discussion over AE92. Judge Spath seems to get Miller’s unsubtle hint that the government would prefer an ex parte discussion excluding the defense team, but says the commission should continue with unclassified discussions for now.

The court now moves on to the defense’s motion for abatement until Brian Mizer, who withdrew from the case without Nashiri’s permission, can be reinstated as Nashiri’s defense counsel. Judge Spath acknowledges that he’s denied testimony from other witnesses on the motion and asks if the defense would like to submit any further evidence. The defense would: Lieutenant Commander Jennifer Pollio submits two more documents and Kammen provides a memo from Military Commissions Defense Organization General Counsel Adam Thurschwell, documenting the resources available to the defense team of Oklahoma City bombing conspirator Terry Nichols.

The defense is trying to point out that the constant personnel turnover has taken a toll on Nashiri’s case. Lieutenant Jonathan Cantil of the prosecution objects, on the grounds that the number of lawyers afforded to defendants in other cases has no relevance to the adequacy of counsel in this case. Judge Spath sides with the defense, letting Kammen’s complaints be recorded.

Kammen frankly admits that the defense still views the DC Circuit Court of Appeals as its “ultimate audience.” He wants the federal court system to understand each and every distinction between how a major death penalty case is treated in the Article III system compared to a similar case in the military commissions system.

Before he continues, Kammen takes a step back: “This is going to be one of the more difficult conversations that I’ve had in my legal career with a judge. And so I want to preface it by saying that . . . it is not meant to be personally insulting.” Kammen worries that, without this preface, “some people with thin skin might take offense” at what he’s about to say.

Using the same phrasing he employed yesterday, Kammen says two sea changes have happened over the last 18 months. The first is that “the D.C. Circuit essentially has abandoned us to play this all out.” The second concerns the Court of Military Commissions Review. Kammen doesn’t mince words here. From his perspective, the CMCR is “a Potemkin court [whose] only mission and only assignment is to help the prosecution when a judge has the temerity to say to the prosecution, ‘you’re wrong.’” He cited two of Judge Spath’s recent decisions in Nashiri’s case that were reversed by the CMCR.

To add injury to insult, Kammen tells Judge Spath that he might be “the first judge in history” to be reversed on the grounds of discretion. Judge Spath tries to correct him, but Kammen does not relent. The scene’s drama only grows as Kammen subtly tries to attribute a political motive to Judge Spath’s decisions: “It would be easy for a judge in your position to sit back and say, look, I get the message. The goal here is to keep [the CMCR] happy.”

Kammen delivers this soliloquy with a kangaroo lapel pin fastened to the lapel of his suit. He goes on to remind the room that his client was “tortured by the same government that wants to kill him.”

He continues by protesting that both the prosecution and the judge refused the defense two witnesses on the Mizer motion and calls on the military commission system to offer a federal civilian court standard vis-à-vis witnesses. Kammen’s major gripe is not only that the defense must ask the prosecution for the permission to call a witness, but that the government’s impulse is to say no. Judge Spath reminds the defense that it can turn to him once the prosecution refuses to accept a witness, explaining that this request will be granted if the defense explains compellingly why it wants the witness and what relevance the witness holds for Nashiri’s trial.

Kammen says this is an unfair and additional hoop for the defense to jump through when the prosecution isn’t held to the same standard. Judge Spath retorts that while the prosecution can invite witnesses without the same constraint, the defense can resort to filing a motion in limine or protesting after the fact. As Kammen himself acknowledges, it’s clear that the defense is seeking to collect and highlight all the discrepancies between the federal judicial system and the military commission trials.

Judge Spath refuses to take Kammen’s bait. He says that he hasn’t approached his duties differently after having his decisions reversed twice by the CMCR on prosecution appeals. “That is not my judicial methodology or philosophy,” he says.

Kammen grouses that his five years on this case has taught him that “nothing is good enough” for the prosecution. The government has used the witness system as “leverage to abuse their power.” He urges Judge Spath to call witnesses forward when doubt exists.

Having made his point both for those in the room and the federal judges who may take up this case at a later date, Kammen moves on and requests that Judge Spath issue a judicial order to reinstate Mizer as Nashiri’s defense counsel. Mizer had built up a trusting relationship with Nashiri, one that Kammen feels can’t be easily replaced. Kammen blames the military justice system’s high rate of reversals in death penalty cases on a culture that considers lawyers to be “fungible,” mistaking advisors and counselors who have cultivated relations with their clients for “widgets” in uniforms.

“I do not agree,” says Judge Spath.

Kammen now adopts a critical view of the detailed military counsel on his team. They may not be widgets, but in Kammen’s eyes, they are all underqualified, without death penalty experience or experience in murder cases. Judge Spath reminds Kammen that he is serving as learned counsel in this case, but Kammen retorts that one person is insufficient for a case that has lasted five years and involves an “extraordinarily damaged” client who takes time to build a productive relationship with any American. Mizer was the one American in whom Nashiri “had the most complete trust.”

Now it’s the prosecution’s turn. Cantil begins by saying that he won’t address Kammen’s “denigration” of the CMCR or the judge, though Judge Spath quickly interrupts to clarify that he “did not feel denigrated in the slightest.”

Cantil notes that Mizer left the Nashiri case voluntarily; he argues that the court lacks the ability to override Mizer’s “personal decision.” He requests that Judge Spath deny Kammen’s motion because Mizer’s relationship with Nashiri does not warrant an abatement of the proceedings.

For the defense, Pollio asks Judge Spath for help in expediting the security clearances for the two civilian lawyers who are assisting the defense and who have been waiting for roughly a year to obtain their clearances. She calls for an abatement to the process until they receive their clearances and can become full-team members. Judge Spath rejects this request and suggests that the civilian lawyers work on the parts of the case that do not require high level clearance. With that and a quick request that the prosecution use any clout it might have to expedite the clearance process, Judge Spath calls the session to a close for lunch.

When the session resumes in the afternoon, Nashiri is still voluntarily absent. Cantil kicks off the second half of the day by advising the court that Rosa Eliades, one of Nashiri’s two additional civilian counsel, actually received her clearance on September 6th.

Judge Spath now turns to a discovery motion regarding unlawful influence filings. Lieutenant Morris of the prosecution informs Judge Spath that the government has turned over more than 400 pages of evidence to the defense, but has determined that the notebook of Army Captain Matt Rich is not discoverable to the defense following a full investigation by the convening authority.

In response, Pollio says that the defense plans to file more requests for discovery in the unlawful influence motion. Judge Spath tells her there will be time for an additional order at “some date in between October and December.” In light of Stephen Gill’s cross-examination on UI yesterday, he’ll reconsider the relevance of certain earlier refused defense witnesses.

Judge Spath lectures the lawyers on the severity of unlawful influence (UI) accusations by reminding them of “what happened in AE 332.” “UI is different than contemptible conduct or violation of a court order,” he notes. “We need to focus in on unlawful influence… as opposed to the appearance of behavior that just should maybe not have happened.” He specifically notes testimony that a legal adviser was present in an OMC office when the Nashiri case was being discussed after the advisor’s disqualification.

Kammen introduces a new legal motion to dismiss some of the charges against his client, on the grounds of the Supreme Court’s recent ruling in RJR Nabisco v EC. According to Kammen, the foundations of the charges against Nashiri presuppose extraterritoriality, but, “The United States is not, cannot, and should not be the policeman for the world.” Absent congressional intent, the Court had declared through Nabisco that the law can’t be applied extraterritorially.

Kammen ties this argument to Judge Spath’s ruling on the Limburg charges against Nashiri, related to an al Qaeda attack on a French ship carrying Iranian oil to Malaysia. Nashiri is accused of masterminding that attack, but the Judge Spath dismissed those charges on the grounds of extraterritoriality.

For the government, Miller pushes back, arguing that the language of the Military Commissions Act, with its references to the Geneva Convention and coalition partners, is sufficient demonstration that “Congress had international goals in mind.” He also points out that it’s “counterintuitive” for Congress to create a court only for war crimes committed within the domestic context, especially considering that the ongoing war, in which Nashiri allegedly took part, is dubbed the “Global War on Terror.” Miller claims that Congress deliberately adopted the phrase “military commissions” because the United States has used military commissions before, including in cases in which war crimes perpetrated abroad were considered justiciable.

Even in cases where non-U.S. persons committed extraterritorial violations of the law of war against another non-U.S. person, Miller argues, military commissions could be an appropriate venue: the United States is now fighting an international adversary and attacks against its coalition partners can also constitute an attack against the United States itself.

After Miller finishes up, Jolly chimes back in for the prosecution. The government doesn’t believe that it’s necessary to hold a closed 505 session over AE92 after the conclusion of today’s open session. But Judge Spath is having none of that. “Transparency is important,” he says, but it’s also important to allow the defense to finish up its arguments on AE92, which the judge wasn’t prepared to hear in the previous 505 session.

With the exception of some minor administrative matters, that’s all for today in open court. Judge Spath, the defense, and the prosecution will go into a 505 session, reconvening for another open session tomorrow morning.