11/5 Session #1: Arguing to Reargue

Military judge Vance Spath opens Wednesday’s motions proceedings with AE 181G, a defense request to reargue the underlying defense motion to remove the possibility of the death penalty for Al-Nashiri if he is not given access to classified information presented against him. Judge Spath notes that after the parties argued the underlying motion in February, the government said that it does not plan to offer classified information against Al-Nashiri. It further agreed to allow Al-Nashiri to see classified evidence in the case using a “Display Only” banner. Defense counsel Capt. Daphne Jackson explains that this change in the government’s position is exactly why the commission should allow the parties to reargue the motion: Not only does the government’s concession raise additional questions, but it also affects the arguments that the defense team would have presented when originally arguing the AE 181 motion. Anticipating the government’s response, Judge Spath points out that this sounds like “no good deed goes unpunished,” wherein the government tries to address defense counsel’s concerns only to be hit with a motion to reargue. Capt. Jackson responds that the “Display Only” exception applies to a limited universe of classified evidence that prevents the defense team from discussing specific issues with Al-Nashiri that are relevant to the death penalty case. Of course, the Supreme Court acknowledged in the Zacarias Moussaoui case that the prosecutor in a capital case could withhold classified information in the run up to a trial, says Judge Spath, and that case was decided before the original argument of the underlying motion. Why should the government’s willingness to provide more information than is required serve as grounds to reargue this motion? Capt. Jackson acknowledges that there is no new case law on this subject since the underlying motion was argued, but presses the point in closing that the government’s proposed “solution” is anything but, and the defense would like a chance to argue that on this motion. With much of the government’s position laid out by Judge Spath in his colloquy with Capt. Jackson, prosecutor Justin Sher briefly rehashes the government’s objection to the defense request for reargument with minimal interruption by the judge. First, he notes that it is well settled that “the accused may not access any and all classified information produced in discovery.” If the defense wishes to present certain documents to Al-Nashiri, it can raise those specific issues to the government as they come up. Further, Sher clarifies at the prompting of Judge Spath that the government will allow Al-Nashiri to see any classified information presented at trial either by the government or, if presented by the defense, that is deemed relevant and admissible by the judge, subject to government-proposed substitutions that would place the accused in substantially the same position. Finally, the defense offered no new facts or change in the law that would warrant reargument of the underlying motion. On rebuttal, Capt. Jackson runs up against continued questioning from Judge Spath, who keeps pushing the “no good deed goes unpunished” aspect of the defense’s motion. Out of this back and forth, Capt. Jackson clarifies that the government’s unilateral decision to allow the defense to share some classified information with Al-Nashiri is essentially a change in the law and the facts that changes the defense’s approach to these issues. The government passes on a final rebuttal and Judge Spath moves to the next motion, AE 205BB, another defense motion to reargue an underlying defense motion to abate the commission proceedings until Al-Nashiri receives adequate medical care. Up for the defense is Maj. Tom Hurley, who begins by listing what has changed since the parties originally argued the underlying motion: First, President Obama admitted that the United States “tortured some folks,” presumably including Al-Nashiri. Next, the D.C. Circuit’s recent decision in Hatim v. Obama demonstrates the “rigorous factual analysis” that courts should apply in detainee treatment questions. While the legal standard for judging Al-Nashiri’s medical treatment—deliberate indifference—has not changed, Maj. Hurley argues that, under the new, factually intensive standard for these issues, the defense should have been allowed to present evidence and witnesses in the original argument that would speak to the medical staff’s deliberate indifference to Al-Nashiri’s medical care. Judge Spath notes that Hatim did not address medical care issues, but the question of that case’s applicability here might require a motion of its own. Finally, Judge Spath returns to Maj. Hurley’s earlier point that President Obama admitted that the US tortured detainees, asking whether it matters whether Al-Nashiri’s treatment is described as torture or enhanced interrogation. Maj. Hurley explains that the fact that Al-Nashiri was tortured goes to the deliberate indifference of his medical treatment, because his treating physicians never acknowledged that he was tortured nor made any effort to determine whether he was tortured. Lt. Bryan Davis rises for the prosecution.  And just as he claims that no facts or law have changed to warrant reargument, Judge Spath interrupts. Is the government arguing that Hatim didn’t change anything? Lt. Davis points out that Hatim essentially affirmed past case law and no one questions that the deliberate indifference standard applied during the original argument and applies now. This issue was extensively litigated in the original argument and there is enough evidence in the record—including medical records and the testimony of the treating psychiatrist and senior medical officer—to show that Al-Nashiri’s medical staff was not deliberately indifferent. While the defense may argue that it did not have an opportunity to present all the evidence, that is not a new fact or a change in the law and so cannot justify reargument. After a brief rebuttal from Maj. Hurley, both sides rest on this motion. Judge Spath explains to Al-Nashiri his right to be present at the proceedings and his right to waive his presence and then calls a brief recess.