11/5 Session #4: Statements, Transcripts, and Questionnaires

The final session for the day begins with AE 314C, a defense motion to compel testimony at the hearing on a defense motion to suppress statements made by Al-Nashiri. Capt. Daphne Jackson explains that in order for the defense to prove the underlying motion—seeking suppression of some of Al-Nashiri's statements due to the length of his detention before being charged and read his rights—witnesses can provide useful testimony on voluntariness, the circumstances of Al-Nashiri's detention, the manner in which the statements were taken, and the totality of the circumstances. Witnesses will also be helpful to the defense in fleshing out the government's distinction between Al-Nashiri's detention under federal law enforcement (where presentment rights attach) and the laws of war. Anticipating the government's resistance to witnesses, particularly witnesses testifying in court, Capt. Jackson offers the alternative: video teleconference. Judge Spath pushes a bit on when Al-Nashiri's presentment rights attached. Didn't those only begin in 2011 when charges were brought? Capt. Jackson answers that whether Al-Nashiri's presentment rights attached before charges were brought is a question of fact for which the defense would like to present witnesses who could testify as to the manner and level of custody. But how can that be, asks Judge Spath, if Al-Nashiri was captured in accordance with the Authorization for the Use of Military Force? That is a mixed question of fact and law, says Capt. Jackson, depending on what was the nature and purpose of Al-Nashiri's detention. For example, if Al-Nashiri was questioned during his military detention with an eye towards litigation, that may trigger presentment rights. Capt. Jackson also dismisses that these witnesses are cumulative and asks Judge Spath to allow the defense to choose its own witnesses, rather than allow the government to provide "poster children." To oppose the motion is prosecutor Justin Sher, who doesn't get very far before Judge Spath interrupts. Does the government have the burden to demonstrate that Al-Nashiri's statements were made voluntarily? Yes, says Sher, if there was no presentment violation, the government must still show voluntariness and admissibility of the evidence. And there was no presentment violation because a person must not be presented to a federal judge until they are brought up on federal criminal charges. Al-Nashiri was detained under the AUMF and had not been charged with a federal crime when federal law enforcement interviewed him in 2007. "No amount of witness testimony can change the analysis," explains Sher, because this is entirely a question of law. Capt. Jackson provides a brief rebuttal, discussing the challenges the defense has had interviewing witnesses on Al-Nashiri's detention, both sides rest and Judge Spath moves to AE 315B, a very similar motion to compel witnesses for a defense motion to suppress statements made by Al-Nashiri after Miranda rights attached, but before he received his Miranda warning. Capt. Jackson is back for the defense and incorporates all of the arguments from AE 314 into this argument. Judge Spath asks whether there is any law that says Miranda rights apply to unlawful belligerents held under the AUMF. When Miranda rights attach is a fact-intensive analysis, according to Capt. Jackson, and so the defense needs to present witnesses to lay out the context of Al-Nashiri's detention. Judge Spath seems unconvinced: The Supreme Court has "made Miranda a fairly black and white experience," and those rights do not apply unless Al-Nashiri was in custodial interrogation. Unprivileged enemy belligerents are not in custodial interrogation, so how can Miranda apply? And isn't that simply a legal question, rather than one that requires witnesses? Capt. Jackson argues that the government deliberately "circumvent[ed] the system to avoid the attachment of Miranda rights in this case," which witnesses will be able to flesh out. Lt. Bryan Davis takes this motion for the government and echoes Sher's previous argument: The question of whether Miranda rights attach "is a black-and-white issue. It is a legal issue." Witnesses will not help the judge determine whether Miranda rights applied to Al-Nashiri because it is purely a question of law. Miranda does not apply to unlawful enemy belligerents at Guantanamo, nor does the Military Commissions Act provide for Miranda rights. Instead, under the MCA, statements must be probative, reliable, and voluntary, which the government fully intends to prove when the issue arises. Capt. Jackson returns for rebuttal, noting that this is in part a factual question because the defense argues that the circumstances of Al-Nashiri's interrogation did attach Miranda rights. After years of torture, Al-Nashiri was brought to Guantanamo and treated better, asked to divulge information, and may have felt compelled to talk in the hopes of being released. That''s a great argument, says Judge Spath, but one that speaks to voluntariness, rather than to the attachment of Miranda rights. Briefly back for the prosecutor, Lt. Davis clarifies that were the judge to find that Miranda rights did attach for Al-Nashiri's statements, that would raise factual issues and the government would request witnesses and an evidentiary hearing as to whether the accused was in custody, but that is not an issue until the underlying motion is decided. With those motions out of the way, the commission turns next to AE 320, a defense motion to halt the process of authenticating the transcript for hearings held in this case between November 2011 and May 2014. Richard Kammen will argue this motion for the defense. In the normal military case, authentication of the transcript takes place at the end of proceedings, but for some reason it seems that the defense is already being asked to authenticate transcripts for hearings in this case. This is stretching the defense's lawyers thin in the middle of the case. Says Kammen, "If you want to have hearings, we are happy to have hearings. If you want us to authenticate a transcript, we are happy to authenticate a transcript. But we can't do both. We don't have the bodies." Lt. Paul Morris rises for the prosecution and Judge Spath very quickly asks why these transcripts need to be authenticated now when military and civilian practice is to authenticate after the trial unless there is an interlocutory appeal. Lt. Morris explains that the commission rules say the transcripts must be authenticated by the judge who presided over that portion of the hearing, which was, until recently, Judge Pohl. So the convening authority has been sending out authentication requests after each hearing in order to ensure that authentication happens as soon as possible, and it felt that it should have all of those transcripts finalized now that Judge Pohl is no longer presiding over the case. Lt. Morris also points out that any defense counsel present for a hearing can authenticate the transcript; it does not need to be authenticated by the lawyer who argued a particular issue. The defense can also pass on this authentication opportunity and later provide an addendum to the transcript. But Judge Spath notes that the defense team did not know that Judge Pohl would not preside over the full case, nor were they told that the transcript would be authenticated prior to the conclusion of the proceeding. Can the prosecution ask the convening authority to provide the defense with more time to authenticate? Of course, says Lt. Morris, but the government does not want, as the defense is proposing in this motion, an all-stop to the authentication process. Back for the defense, Kammen explains that the defense brought this motion rather than approach the government because the convening authority has refused to be communicative or cooperative with the defense over the past four or five years, and so it seemed easier to just bring a motion. Nor will a brief delay in authentication help the defense get this done. The trial and appellate processes aren't slowing down and the defense team can't spare anyone for a day or two to authenticate transcripts for the foreseeable future. Wrapping up the day is AE 321A, a defense motion seeking more time to respond to the underlying motion by the government asking the commission to approve a proposed member (i.e., juror) questionnaire. Al-Nashiri attorney Maj. Tom Hurley explains that the defense is asking for a lengthy delay on the underlying motion considering the number of major issues yet to be worked out in pretrial motions. Also noting Judge Spath's efforts throughout today's hearing to improve comity between the parties, Maj. Hurley proposes a discussion between the parties to negotiate a questionnaire, but that process should take place after some of the evidentiary issues have been resolved, as those will almost certainly inform the questionson the questionnaire and at voir dire. Judge Spath likes the sound of the parties working this out on their own before coming to the commission to fight it out, and that will give him time to determine when the questionnaire should be due, but it certainly cannot be due before the close of discovery and the resolution of a number of evidentiary questions. Maj. Hurley adds that the defense has just recently retained a jury consultant who is just now getting up to speed and will need some more time before helping out with the questionnaire. Up for the government is Maj. Winston McMillan, a recent addition to the prosecution. He notes that the government provided this questionnaire in accordance with the previously-established milestones. The prosecution is fine with continuing the dialogue over the questionnaire, but it would like to keep the process moving forward. Judge Spath appreciates this, but stresses that the current litigation schedule is no longer realistic and it will be hard to make a realistic schedule given the number of big issues left for resolution and the ongoing appellate challenges. What the government and defense should do is begin a dialogue on the questionnaire and voir dire with the understanding that the commission will set a new deadline down the road. With that, the commission does some final housekeeping and recesses for the day.