11/18 Session #1: Now or Later, Part One

Judge Waits ascends the bench and the hearing once more comes to order.  It seems Al-Hadi is here, along with attorneys for both sides. Housekeeping: The military judge explains that yesterday and this morning, Rule 802 conferences were held (two with both parties and Judge Waits; one with only the government and Judge Waits), regarding the need for classified evidence to be introduced; apparently, that question wasn’t fully resolved, and might well depend on further developments today in court. Court and counsel also talked discovery. You’ll recall that in motion AE21 Al-Hadi has sought to block female guards from touching him, in light of his Muslim faith.  But some documentary discovery bearing on this request---classified and not---didn’t reach the defense until a few days ago. Thus Al-Hadi’s lawyers had asked to postpone argument on AE21, pending their review of the discovery and development of necessary facts; among other things, Al Hadi’s attorneys had not yet viewed a video of the detainee’s forcible cell extraction by GTMO personnel. This raises a question: will we proceed or not?  A debate on that very issue follows. Lt. Col. Tom Jasper, speaking for Al Hadi, desires not to proceed---or at least to delay until next session before doing so. The defense, he says, doesn’t even have access to witnesses and evidence needed to prepare argument on AE21. That’s a major procedural no-no.  The military commission rules’ official comments say that the defense’s ability to obtain witnesses will be comparable to the defense’s ability to do so in civilian court, among other things; and the rules themselves also forbid others from discouraging witnesses from testifying. Contrast these norms with the facts on the ground: Jasper tells Judge Waits he filed his discovery request on October 22, and came down to Guantanamo to investigate in October 27. And yet he only reviewed a video of Al Hadi’s cell extraction a few hours ago. Jasper also says he was blocked initially from speaking to a key witness---Col. Heath, the Joint Detention Group Commander. (He’s the only witness Jasper and company have been able to speak to so far.)  And while that witness was eventually permitted to speak to Jasper, the lawyer’s interview proceeded without the benefit of documentary discovery. Another thing: Al Hadi’s attorney is aware of a briefing regarding Al Hadi’s handling, where GTMO officials initially told underlings not to speak to Jasper. That instruction was apparently rescinded quite swiftly---but Jasper will need to look into that and all the aforementioned stuff, in order to develop the story of Al Hadi’s interactions with the guard force. (According to Jasper, the GTMO Staff Judge Advocate had demanded that Jasper and crew demonstrate a witness’s relevance to Al Hadi’s case, before giving permission to Jasper and the witness to communicate with one another.)  And this sure doesn’t sound like regular, Article III access to witnesses. The usual procedure allows for “cold calls,” with no government interference---and ample time to work up the facts, and confer with the client before proceeding further. It’s also annoying to the lawyer, receiving needed discovery and witness access at the last minute. More along these lines follows, but Jasper’s point is crystal clear throughout: don’t do AE21 now, your honor. Give us more time. The prosecution speaks through Lt. Col. David Long, who first refers to logistical challenges posed by Guantanamo---challenges that imply delays or added hurdles to things like discovery.  And all the sought witnesses here, he adds, are operating in a classified environment. Moreover, Long argues, defense counsel well knows that commission rules do not give the defense the same access to witnesses and documents that it would have in federal court. Long is also keen to clarify an important matter: there is absolutely no “no access to witnesses” policy in play at GTMO, he says; there is, however, an instruction to all GTMO folks not to reveal information regarding ongoing operational matters. The latter is, the lawyer adds, more than reasonable, given the high security stakes down here at Guantanamo.  The court drills down a bit, and Long clarifies some more: it seems that initially, there had been a bit of a miscommunication, owing to the prosecution’s liaison role as between the defense’s discovery requests and GTMO’s Assistant Staff Judge Advocate ("SJA"). At first, Long had understood from the Assistant SJA that JTF personnel were not supposed to speak to defense counsel. But that was just a mistake on Long's part: after further protest by Jasper and crew, Long sought more information from the GTMO base lawyer, who corrected Long’s initial (and, it turns out, wrong) impression. What about this briefing issue? Jasper was worried about a “chilling” effect on GTMO officials, with regard to investigations by defense counsel; Long tells Judge Waits he cannot speak to details on the alleged briefing. Eventually talk turns to information technology: Long explains that it took considerable time to process the electronic discovery, and in particular to get access to the cell extraction videos sought by the defense. It’s understandably time-consuming stuff, given the high classification levels in play. Long is nevertheless clear that, to the extent necessary, he’ll provide "instruction" documents----those provided to potential witnesses regarding what the witnesses can and cannot discuss, in light of the provisions for protecting national security information and so forth. There’s also the age-old principle that before trial, witnesses always can refuse to speak with defense counsel. So, Long seems to say, there’s no “chilling effect” in play here, like Jasper has argued; GTMO people just might not want to talk to Al Hadi’s attorneys. This answer seems to irritate the court: he’s hearing a lot of “unknowns” and basic uncertainty, and this is only the case’s first hearing on evidence and discovery. Doesn’t the morass of proffers and I-dunnos militate against going forward today?  For his part, Long explains that he only learned of his duty to argue this issue earlier this morning; the answer seems almost to acknowledge the court’s growing discomfort about things as basic as whether Al Hadi's lawyers can talk to people they want to talk to. What if operational instructions do chill witnesses from speaking to lawyers? (Sensing the obvious---that the merits of AE21 won’t be taken up today---Long pivots: well, if we do delay, then the court should rescind its “interim” order on AE21, which temporarily gave Al Hadi some relief from physical contact by females. The effect of the order on GTMO is profound, Long argues, particularly on Camp 7----where high-value detainees are housed and security imperatives are at their greatest. This assertion draws sharp objection from the defense and agreement from the bench. As for the latter, Judge Waits instructs Long to “stay on point”---that is, not to argue issues apart from postponement---and corrects Long’s suggestion that, so far, Al Hadi’s side has failed to carry its burden with respect to temporary relief. The court found to the contrary already, Waits says.) The colloquy returns Long to what prosecutors should and should not tell witnesses sought by the defense, about their options. Seemingly seeking approval from Judge Waits, he reads aloud from a document that Long and company pass on to sought people, which explains (among other things) that potential defense witnesses have the right to participate in an interview, as well as a right not to do so.  Lt. Col. Jasper hasn’t ever seen this document---and that’s precisely his objection, as he explains to Judge Waits. Al Hadi's attorney is visibly flabbergasted: Jasper says that in seventeen years of practicing law, he’s never heard of something like Long’s instructions document for would-be witnesses. The prosecutor rejoins that forms like this are used in other commission cases (although this particular one was crafted with Al Hadi’s in mind).