11/5 Session #2: Skyping With HVDs

The commission returns from recess and prepares to consider AE 284 and 284L, a defense motion and supplement seeking to allow Al-Nashiri to hold supervised Skype calls with his elderly parents. Before that, however, defense attorney Richard Kammen informs Judge Spath that Al-Nashiri has an upset stomach due to his transportation and would like a corpsman to bring some dissolvable medicine to settle it.It's something of a logistical pickle, as the staff says that they cannot bring a corpsman at the moment. This is the first the government is hearing of the issue, says prosecutor Justin Sher, but they will send someone to try to address the issue while the proceedings continue. At the outset, Kammen explains that the state of play on this motion is a bit in flux after an unknown individual at Guantanamo recently informed Al-Nashiri that he will soon be allowed to have supervised telephone and Skype conversations with his family. It seems, however, that that may no longer be the case. Judge Spath asks whether the Guantanamo decision to allow Al-Nashiri and his family to pass along letters and videos, but not engage directly over Skype, should receive deference under current case law. Kammen explains that while it gets some deference, it must be weighed against a new Department of Defense directive that doesn't exclude supervised Skype calls for high-value detainees (HVDs) "where practicable." The government has not said that it cannot accommodate the request and so the court should grant the defense motion. Noting the murky origins of these motions, Judge Spath presses Kammen on the standard of review for this motion: Is it deliberate indifference to Al-Nashiri's medical needs because the Skype calls would be beneficial to address his post-traumatic stress disorder? Or is it a condition of confinement for which the detention facility receives deference subject to, under Hatim, a demonstration that it has a rational basis for its decision? Kammen is not inclined to choose a standard, pointing out that if the facility's decision is owed deference, the court has not seen evidence of the Guantanamo commander's position on this issue. When pressed, however, Kammen says the defense prefers to frame this as a conditions of confinement question guided in part by evidence that allowing the Skype calls would be medically helpful to Al-Nashiri. As Lt. Paul Morris rises for the prosecution, Judge Spath asks what the current state of play is on this issue within Guantanamo. Lt. Morris explains that the unidentified Guantanamo official prematurely notified Al-Nashiri that he would be allowed to engage in supervised Skype calls with his family when no such determination had yet been made. While government policy evolves over time to include additional services to the accused, the question before the commission on this motion is whether the defense has shown that failing to provide those Skype calls demonstrates a deliberate indifference to the serious medical needs of Al-Nashiri. They have not done so and the commission should deny the motion. That is all well and good, says Judge Spath, but won't the defense next come with a motion citing Hatim and saying that this policy has no rational justification? In the interest of judicial economy, can the commission address that follow-on issue now? Lt. Morris points out that the government has already provided declarations from Guantanamo personnel and the Defense Department showing that there are alternatives to Skype and providing the government's rational basis for rejecting Al-Nashiri's request. Given the failure of the defense to show deliberate indifference and the government's evidence of a rational justification for the policy, the commission should deny the motion under either standard. Kammen returns for rebuttal and acknowledges that the government provided declarations from witnesses, regarding the rational basis for this policy. But when the defense asked to cross-examine those witnesses, the government wanted to withdraw them. In effect, there is no evidence upon which the commission may make a rational justification determination. Nor does the defense buy Lt. Morris's claim that someone accidentally informed Al-Nashiri that he would be allowed to engage in supervised Skype calls; the Guantanamo environment is "too controlled" for something like that to happen. At the very least, the commission should grant the defense's motions in AE 284Q and 284R to compel witnesses to testify on the Guantanamo policy and explain why Al-Nashiri was prematurely informed that he would have supervised Skype calls. Lt. Morris is up again and stresses that the proper standard here is deliberate indifference, not rational justification. Judge Spath acknowledges that the 284 series of motions certainly started that way, but, due to Hatim and the Defense Department policy, may now require a rational basis review. However, it is up to the defense to present evidence showing there is no rational basis for not allowing Al-Nashiri to have supervised Skype calls. Lt. Morris stresses that the defense has failed to make the case for the Skype calls under either standard. But shouldn't the defense get an opportunity to show, through witnesses and other evidence, that the policy is irrational? Lt. Morris says that they do get one, subject to the military commission rules. The last word goes to Mr. Kammen, who highlights the government's efforts in this and similar litigation to present evidence through declarations without allowing the defense an opportunity to cross-examine witnesses. He also argues that the distinction between high- and low-value detainees may have made sense early on when detainees had immediate intelligence value, but it is absurd and arbitrary to continue that distinction where a detainee has been held for over a decade. Finally, Kammen pushes the judge to give the defense the tools it needs to meet its burden on this issue. Before wrapping up, Judge Spath asks for an update on Al-Nashiri's medication to calm his stomach. Sher says that the accused will have an opportunity to receive his medication over the break, and with that the commission recesses until the afternoon.