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Lt. Cmdr. Reyes turns next to two motions, one motion to permit defense counsel to take a picture of Al Nashiri for his family and the other to show Nashiri a DVD message from his parents. With respect to the picture, Judge Pohl asks: Doesn’t ICRC transmit pictures of detainees? Reyes acknowledges that it does, but he doesn’t want to wait for the ICRC. (Memo to the ICRC: Speed up your photo shoots!) Judge Pohl asks whether Reyes is just circumventing detention rules, using the commission process instead. He asks why the video shouldn’t just be treated under the normal Guantanamo mail rules. This produces a long exchange over legal mail and the way different forms of communications are treated. JTF GTMO’s decision to deny these requests, Reyes argues, was arbitrary, and the requests are, in fact, related to the commissions case, so Judge Pohl can deal with them in the context of the commission. To demonstrate that Nashiri is being treated differently from other detainees with respect to video and photo delivery, Reyes wants to call JTF-GTMO officials to shed light on factual questions regarding the way the material is being handled. But importantly, he doesn’t want to explain the relationship between the video and his photo trial preparation except in an ex parte submission, because he doesn’t want the government to learn his trial strategy. Lockhart opposes the motion. The ICRC made a photo visit in October, and if the defense articulates a military commission-related reason to take any new photo, the government will assist in that regard. The ICRC also transmits family videos, too, and there's no reason it should be regarded as anything other than regular mail. Judge Pohl asks: So if the detainee’s family sends media to the ICRC, the ICRC then may funnel the video or photos to the accused at Guantanamo? Yes, she says, though the ICRC has to confirm the family members’ identities first. Lockhart emphasizes that there’s no legal issue for the court to consider claims of discriminatory or arbitrary treatment--since no such claims are in the defense motions. If the defense wants to make an argument about whether the photo and video are related to some larger mishandling of communications, they must do so in a motion---but their papers didn’t mention any of those problems. The issue raised by the defense does not actually challenge any policy. The defense is simply asking for a photo to be taken and a video to be played. And that is outside of the purview of the commission to grant. The judge can step in to ensure a fair trial, she says. But the defense is just saying this is a nice thing to do. They can’t just show up in court and ask for that. And if they have a complaint, they should raise it properly. Your basic objection, Judge Pohl says, is jurisdictional, right? Yes, Lockhart says. Would your view change if the photo and video could be shown to be case-related? Yes, if it were necessary to see a video from Mom and Dad to prepare their case, then it would be legal mail. And you oppose an ex parte submission to determine whether it’s case-related? Yes. What harm do you suffer? It undermines the authority of the camp commander. They have an exchange over this point, in which Lockhart argues that the government should have the right to respond to what defense argues. But up to this point, she says, there’s nothing in the defense motion that articulates why this video is important to case preparation. She sits down. Judge Pohl turns back to Reyes. He clarifies a few things about Reyes's position and then asks whether he wants to call Captain Thomas Welsh, the Staff Judge Advocate advising the JFT-GTMO Commander on policies relating to legal visits. After some hedging, Reyes says that he does. There’s a brief back and forth about what facts are really in dispute here and whether Captain Welsh is really in a position to testify as to those facts. After more back and forth, Judge Pohl rules: Capt. Welsh's testimony will not be necessary, he says. Because the photo allegedly relates to the defense’s investigation, the photo motion (AE75) is granted. Judge Pohl also finds that the defense should invoke the ICRC process as to the video---but he agrees to take a look at the ex parte submission over the lunch break to determine whether it presents an argument he should consider. The defense, in other words, can submit the ex parte submission, but he is not promising to consider it. And he emphasizes that he doesn’t want ex parte submissions to be regular way of doing business. Should the ICRC process prove inadequate, the defense may revisit the video message issue in a subsequent motion. Kammen is unwilling to accept yes for an answer. He has a lengthy exchange with Judge Pohl in which he says that he does want ex parte submissions to be the regular way of doing business. Judge Pohl is not impressed. Prosecutor Anthony Mattivi wants to add his two cents--and he seems genuinely upset. The defense, Mattivi says, has made extensive but unfair use of a tactic Judge Pohl should not let it get away with. Defense counsel repeatedly elect not to raise a dispute’s true issue in the defense’s opening motion. Instead, the accused’s attorneys wait until they file their reply brief or a motion to compel witnesses--or, worse, the defense never raises its real problem in any court paper, instead waiting until an oral argument session. In a case of this magnitude, Mattivi says, the prosecution deserves an opportunity to formulate its position and properly respond. And yet today, Judge Pohl has agreed to accept, for purposes of this motion, ex parte materials regarding video messages--even though the defense’s belated discriminatory treatment issue was never properly put before the commission in a motion or reply. That’s a bad precedent, the prosecutor says. For his part, Judge Pohl says the government can ask the commission for relief, if and when the defense appears to sandbag trial counsel. Mattivi’s objection noted, the commission calls a lunch recess. UPDATE: after returning from the lunch break, Judge Pohl says that he has read AE 73B, the ex parte submission by the defense.  In Judge Pohl’s view this document---which remains sealed---adds nothing new to the issue.  The commission therefore adheres to its earlier ruling regarding the DVD.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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