11/18 Session #2: Now or Later, Part Two

The prosecutor, Lt. Col. David Long, finishes his arguments regarding whether to push back argument on motion AE21, Al Hadi's challenge to physical touching by female Guantanamo guards.   Long says no. But Al Hadi's attorney, Lt. Col. Tom Jasper, says yes.  He rises and underscores the breaking-news aspect of the facts, as revealed during Long's earlier remarks: only today did Jasper learn that, indeed, an Assistant SJA had told Long of a policy of not allowing witnesses to speak to the defense. The timing is key, given that we’re talking about whether to allow more discovery or to argue a motion on the merits. Jasper is any event adamant that the so-called “instruction” would chill witnesses from talking to Al Hadi. The lawyer sits. Questions from the bench are now put to the prosecution, about its witnesses: do they get a comparable form, about their options?  Yes, Long says, with words on the document adjusted where appropriate to change “defense” to “prosecution.”  It’s a fill-in-the-blank deal. Okay, says Judge Waits. What about Lt. Col. Jasper’s account of the facts, as set forth in his discovery motion---does Long dispute that account?  No is the lawyer’s answer. Witness access is on Judge Waits’ mind--so much that he contemplates postponing consideration of AE21, pending further litigation on the defense’s ability to get its hands on needed information.  For his part, Long says the prosecution is willing to stay on Guantanamo for more days than initially scheduled this week, so as to work out any access issues and (hopefully) litigate AE21.  His motivation, again, is the crushing impact---in Long’s view--that the court’s grant of interim relief on the motion has had on operational matters here at Guantanamo. Well, that’s your problem, counsel, says Judge Waits; such impacts were precisely what the defense wanted to ask about but couldn’t, owing to discovery delays imposed by the government. Waits says he is tired of empty “platitudes” about operational problems, and instead wants to hear actual evidence. And how could such problems be so bad, anyway? There are almost no commission hearings between now and January, something that would take considerable pressure off the guard force, to the extent any is imposed to begin with by an order temporarily granting Al Hadi a male-touch-only regime.  (No hearing means no need for guards to extract the accused and bring him to the Guantanamo courtroom; all that leaves is transportation to and from attorney-client meetings.) Long quibbles: TS/SCI guards are required to handle a guy like Al Hadi, and there's only so many TS/SCI-cleared, female non-commissioned officers at Guantanmo. Judge Waits bats the rejoinder away as irrelevant: what does the number of female guards have to do with the accused's desire to avoid female contact?  Tell me why my temporary, narrowly-tailored order should not remain in effect, he says. The prosecutor once more cites the trouble camp staff will have, if properly cleared female non-commissioned officers cannot handle Al Hadi when transporting him. The court is incredulous, and intones: So you’re removing all female officers from transport teams, in light of my order? What?  That's right, your honor. Judge Waits is visibly angry and just as confused, as his order by its terms does not come close to requiring the policy adjustments Long described seconds earlier.  Well, why don't you have the female officer refrain from touching the accused? There's no need to keep females away from Al Hadi at all times.  The lawyer half retreats, but also wondersa aloud: What if female guards touch Al Hadi incidentally, in the course of exigent circumstances? The boundary lines of their discretion are unclear in the wake of Judge Waits' temporary order---thus Long's bid to have it rescinded. There's more: Long adds that vague legal boundary lines may prove to have worse effects on an incoming guard force, which might contain more female members than the present one.  The court is still unimpressed. This is proffer, not evidence, says Judge Waits. Had the prosecution produced discovery, we could have addressed all these issues, including operational harms. So what’s the way forward?  Quickly we learn this much: AE021 is postponed formally by the court until January, pending resolution of outstanding discovery issues related to the motion.  In the meantime, the court’s interim order regarding AE21 will remain in place. That leaves the case’s residual questions about witness access.  Prosecution, defense and the court discuss this issue ever briefly. The prosecution proposes the submission of parallel, fast-timetable briefing by both sides, with oral argument only as necessary.  Judge Waits likes this; the defense does too, but also asks for a slightly protracted briefing schedule and the option of filing reply briefs as needed. At any rate, it seems access questions will be debated in writing---and not in court: after mulling the parties' proposals, Judge Waits says he wants parallel briefs submitted on the 3rd of December, with no oral argument to follow. One last item: a ruling on the defense’s motion to dismiss for lack of subject matter jurisdiction and to compel a status determination under Article 5 of the Geneva Conventions. Judge Waits denies this---reasoning among other things that that the commission is, in fact, a “competent tribunal” that can presumptively determine the commission’s personal jurisdiction over Al Hadi. That determination will come at a later time, apparently in a forthcoming evidentiary hearing. We stand in recess.