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This Week at the Military Commissions (Tuesday Edition)

Nora Ellingsen
Thursday, May 19, 2016, 5:29 PM

It’s Tuesday morning at Guantanamo, and the military judge calls the military commission session to order. No, this is not the 9/11 case. It’s not even the Al Nashiri case. And no, the military judge isn’t Col. James Pohl.

The judge is Navy Captain J. Kirk Waits and this military commission is the forgotten stepchild of the military commission system: Abd al Hadi Al Iraqi’s trial.

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It’s Tuesday morning at Guantanamo, and the military judge calls the military commission session to order. No, this is not the 9/11 case. It’s not even the Al Nashiri case. And no, the military judge isn’t Col. James Pohl.

The judge is Navy Captain J. Kirk Waits and this military commission is the forgotten stepchild of the military commission system: Abd al Hadi Al Iraqi’s trial.

I know what you’re thinking: Who the heck is Abd al Hadi Al Iraqi? Funny you should ask.

In 2015, Hadi was charged with serious violations of the law of war. An Iraqi national, he’s a latecomer to Guantanamo, who showed up in 2007. The government alleges that he conspired with and led Al Qaeda members in a series of attacks in Pakistan, Afghanistan and elsewhere from 2001 to 2006.

Actually, who exactly this guy is turns out to be the first question on the agenda today. Hadi has retained a new civilian lawyer and lead counsel, Brent Rushforth. And after swearing in Rushforth, Judge Waits addresses the accused’s request to be referred to by a different name: Mr. Nashwan al Tamir. Although not persuaded at the moment to rename the defendant, Judge Waits does agree to look into whether Hadi had been deposed or took an oath in some type of federal proceeding using a different name in the past. The defense is amenable, but will still continue to call their client Tamir in the meantime. This will undoubtedly cause confusion in the future. The judge and prosecution, meanwhile, will continue to call him Hadi (as will we).

Welcome back to Planet MilComms.

Given his almost entirely new defense team, Hadi confirms that he understands his rights to counsel. Both Judge Waits and Rushforth agree that Hadi’s representation could be the subject of future litigation—Judge Waits because Hadi now has “one, two, three, four” attorneys, despite being entitled to one Rushforth because objects to Judge Wait’s finding that Mr. Hadi is adequately represented.

The commission begins with a bit of housekeeping—summarizing two 802 conferences that have been held since the last session of the commission. There was a telephonic conference on November 18, 2015 that dealt with the defense’s compliance with the notice requirements with regards to the detailing of counsel. The defense noted that it did not have a full team in place and was in the process of retaining pro bono civilian counsel, speculating that Mr. Rushforth would be the lead counsel on the case. Today, the defense and prosecution disagree about whether it was recognized in the November conference that the commission would move ahead once Mr. Rushforth was cleared. The defense has several more members it would like cleared before commencing, but much more on that to come.

The second conference for summary occurred last night, May 16th. This was a counsel meet-and-greet, and Judge Waits rattles off a laundry list of topics discussed: Hadi’s requested name change, additional attorneys the defense would like to be brought onto the case, a pre-litigation schedule agreed upon by both parties, the amount of classified discovery remaining, and Rushforth’s intention to voir dire the military judge today. There is a brief discussion of the issue of personal jurisdiction of the commission over the accused before Judge Waits cuts everyone off, saying this is all tentative and he will wait for the pleadings. There’s some more banter, which leads to some confusion before Judge Waits clarifies that the government has not represented to anyone that it has proven personal jurisdiction.

Finally, Judge Waits opens the floor for voir dire by the defense. Mr. Rushforth recites a list of names, asking if Judge Waits has a past or current relationship with any of these people. When questioned about his relationship with any of the Trial Counsel, Judge Waits admits he briefly overlapped with Lieutenant Commander Spencer when he was first assigned as a military judge to Jacksonville. Rushforth then turns to Judge Waits’ relationship with Fred Taylor, who was previously part of the United States v. Al Nashiri team. Judge Waits admits to speaking with Taylor but pushes back and denies that any of those conversations would have tainted his impartiality.

Rushforth then moves to the topic of Judge Wait’s 505 ex parte meetings with the prosecution. Judge Waits or his clerk has had five or six meetings with the prosecution, and by their estimation have reviewed 40 binders of documents. It’s difficult to say how big the binders were or exactly how many documents were in them, the judge says, although Rushforth doesn’t fail to push the point. The prosecution then cuts in and complains that this line of questioning is inappropriate, since the commission has previously ruled that these procedures are allowed. Rushforth says it’s “entirely new” to him that the judge and prosecution team would meet in this manner; Judge Waits agrees, “it’s odd to me, too” but says that these are the rules, and Rushforth has to tie his questions to the issue of prejudice. Rushforth declares his intention to attack these procedures, but everyone agrees to move on for the time being.

Rushforth’s final questions revolve around Chief Judge Pohl and the recent New York Times article alleging that Judge Pohl authorized the destruction of physical evidence in another case. Rushforth asks if that evidence has any bearing on this case. Waits addresses his concerns by saying he doesn’t know anything about that article, and if it were to be true, he has no way of knowing whether it was in any way related to the evidence in this case. He manages to preempt Rushforth’s next question and says he didn’t talk to Judge Pohl about that evidence, nor are their interactions anything more than infrequent. He has discussed cases with Pohl, he says, but resists Rushforth’s implications: “There’s nothing wrong with judges asking each other professional questions.” With that, the voir dire is over and the commission takes a brief recess.

Returning from the recess, Rushforth outlines his motion for a continuance.

The one thing everyone can agree on over the next hour? The government is really inefficient at processing security clearances.

Rushforth complains that the defense doesn’t have its full team together as a result of the lag in granting clearances: “And I find it a little rich that the other side says, well, you only need the team you’ve got.” Rushforth contends that the government is “slow rolling” the security process for members of his team, restricting their access to Top Secret information. He argues that he’s not asking for an order for members of his team to be cleared, but does want Judge Waits to ask the government to progress with the process, which is currently at a standstill: “My view, Judge, is the government has to be told we're not going to move until these people at least get in the pipeline and get moved through the pipeline. And if the answer is no, you're not entitled to a top secret clearance, so be it.” Until the process is moving, many integral members of his team, such as Professor Catherine Moore who is a specialist in international law, can’t adequately participate.

Rushforth’s second complaint is that the defense does not have full discovery; discovery orders issued nearly a year and a half ago have yet to be complied with by the government, he claims. He threatens to file motions to compel for the 200 discovery requests his team filed last month.

Finally, he brings up the Al-Bahlul case, which is currently pending before the D.C. Circuit. Given that Al-Bahlul will address whether conspiracy can be tried before a military commission, Rushforth points out that the ruling could radically change this case: “And there is really no use whatsoever, in my view, to going forward in motion practice and in pretrial practice until that issue is resolved.”

Judge Waits begins his response by dismissing Rushforth’s concerns about the conspiracy issue; the commission, he says, will rule on the outstanding motions related to conspiracy when either Al-Bahlul is decided or there is a trial. Moving to the issue of discovery, Judge Waits doesn’t exhibit an extraordinary amount of sympathy for Rushforth, indicating that many of the motions that have been filed are law motions:

But many of the issues filed have nothing to do with how many people you have on your team or how much discovery the government hasn’t provided yet. The commission finds no reason why these two—that is, the provision of discovery and evidentiary-related motions and progress toward those things—cannot occur in parallel to the litigation of law motions. So I hear everything you're saying, but asking for a bald "we need 18 months before we do anything," the commission does not find that reasonable, because there's a lot of business we can take care of that has nothing to do—and I'm as frustrated as you are about the provision of discovery, okay?

The prosecution and defense spend a significant chunk of time bickering over security clearances of the additional defense counsel. The prosecution says they were never provided with the names of the new defense counsel and didn’t know that they existed until last night. The defense claims to be “incredulous” at those claims and says the security clearance applications were long ago submitted. Judge Waits implies that Rushforth’s clearance was rushed; he got it in six months instead of two years. Rushforth says he once got a clearance in two weeks, so he knows it’s possible for the system to move quickly. He wants the judge to tell the government that the case is not going to move forward until the defense receives its clearances, but the prosecution argues that he’s glossing over a fine distinction: Hadi is entitled to civilian counsel, an entitlement which is satisfied by Rushforth’s own appointment. The fact that Hadi wants more counsel is inconsequential:

There are multiple issues that we could proceed forward with, Your Honor. The defense has had ample time to prepare. He's had three fully qualified defense counsel for the better part of nine months. And Mr. Rushforth is clearly capable of proceeding forward in preliminary matters in this case, Your Honor. The government is not suggesting that he should be ready for trial in five days, even there's Supreme Court precedent that says in certain circumstances that's authorized.

The back and forth continues, with the defense claiming the government is dictating who is on its team and the prosecution arguing that this is not “an unreasoning and arbitrary request for expeditiousness” on the part of the commission. On the contrary, the government has allowed ample time for Rushforth to join the team and get caught up to speed before requesting the case move along. The prosecution argues they are not asking the defense to go to trial five days from now, but simply to move forward.

They also spar over discovery. In response to the defense’s discovery claims, the prosecution states that 80 percent of discoverable classified material and 95 percent of discoverable unclassified material is currently in the defense’s possession.

Judge Waits finally ends the conversation and suggests that the prosecution do whatever it did to rush Rushforth’s clearances for the additional defense counsel—although this is only a suggestion, not an order. The prosecution balks at the suggestion that its has any control over the clearance process, but Judge Waits doesn’t buy it.

Judge Waits then asked Rushforth if he has any issues with hearing three prospective motions on three issues in July: the applicability of Miranda to commissions, the issue of the defense not being ready to move forward until the four other counsel have had their clearance process initiated, and the issue of excludable delay versus attributable delay.

The commission takes a brief recess and reconvenes at 12:07 pm, and regarding the three motions to be heard, Rushforth proposes an alternative timeline: In July, he suggests, the commission will hear a motion regarding who gets attributed with the delay; in September, the issue of counsel; the issue of Miranda, being fraught with factual issues, likely can’t be heard in September, he argues.

Judge Waits asks for the prosecution’s opinion and fings the government on board with arguing the attributable delay issue in July. The government cleverly points out, however, that the defense’s willingness to do so means that the defense has presumably conceded that it can, in fact, proceed on certain pretrial matters prior to having all members of the team effectively cleared. Regarding the Miranda motion, the government, not surprisingly, disagrees with the defense’s proposal to indefinitely push it back, arguing that the defense is conflating a purely legal argument with factual 304 or voluntariness-type issues. Judge Waits proposes reframing the Miranda issue as a hypothetical, purely legal manner. If the commission approaches the Miranda issue from the perspective of an alien person, questioned by law enforcement, not in the United States, the issue can be resolved without any factual assumptions. Finally, the prosecution notes that security clearances are an individualized process—nobody knows how long they will take—and therefore the counsel issue should be litigated in July.

The rest of the session consists of tantalizing talk of how the prosecution should have been notified of the four additional attorneys for whom the defense applied for clearances. The prosecution isn’t sure when the government should have been notified, but Judge Waits admonishes the defense for not providing adequate notice sooner.

Judge Waits ends the day by stating that he’s not going to make an oral scheduling order about what they are going to hear at the next scheduled session of the commission. However, he does want the parties to meet and try to agree on a pretrial litigation schedule, even if neither party is optimistic about that actually happening. Everything is left TBD, but will come out in an order.

And with that, he declares that we are done for the day—and until July 11th.

Nora Ellingsen is a third-year student at Harvard Law School. Prior to graduate school, she spent five years working for the FBI's Counterterrorism Division. She graduated cum laude from Northwestern University with a B.A. in Psychology and Political Science.

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