12/15 Session: Sleepovers at Camp Justice and “Unlawful Influence”

Thursday’s morning session in the Nashiri proceedings begins a few minutes after 9am, with mlitary judge Air Force Colonel Vincent Spath calling the commission to order. The first witness of the day is Edward Sheeran, deputy chief of staff at the Office of the Convening Authority (OCA). Nashiri’s defense team questioned Sheeran on Monday about OCA’s compliance with a 2015 order that screened several OCA personnel from any participation in Nashiri’s case, which Judge Spath issued after those individuals attempted to accelerate commission proceedings by adopting a rule requiring the judges to live at Guantanamo until completing their assigned cases. The Deputy Secretary of Defense ultimately revoked the rule, and Judge Spath issued his order to head off any potential “unlawful influence” by OCA over the Nashiri case.

Sheeran was not among the screened individuals listed in Judge Spath’s order. However, after his testimony on Monday, it emerged that Sheeran could have served as the acting OCA legal advisor in the Nashiri case, and that the defense team was unaware of this prior to Monday’s questioning. As a result, Judge Spath granted defense counsel Richard Kammen another opportunity to examine Mr. Sheeran.

Kammen now discovers that Sheeran is currently the acting OCA legal advisor in Nashiri’s case. He asks Sheeran if this fact “slipped [his] mind” during the Monday session, or if Sheeran had “conscious[ly] decided” to omit any reference to his legal advisor role. Kammen also insinuates that the prosecution team may have coached Sheeran into avoiding the subject, which Sheeran denies. Sheeran asserts that the subject of his tenure as acting legal advisor in the Nashiri case never came up when he discussed his Monday testimony with the prosecution team, and that his omission was simply an oversight.

Kammen moves on. He now questions Sheeran about one of the OCA individuals who was screened off from Nashiri’s case by Judge Spath’s order. This person, Mark Toole, is the acting legal advisor for all cases other than Nashiri’s; because of the order, he cannot participate in the Nashiri case, and must even leave the room whenever the case is discussed at OCA. However, Kammen notes that Toole has supervisory authority over several OCA personnel who are involved in Nashiri’s case. Sheeran concedes this point, although he is unsure whether Toole writes the annual performance evaluations for these individuals. In any event, Kammen’s questioning highlights the tension between Toole’s general supervisory role at OCA and his formal segregation from the Nashiri case.

After a brief recess, Judge Spath excuses Sheeran and swears in the Joint Detention Group Commander at Guantanamo, Colonel Stephen Gabavics. Colonel Gabavics is testifying in connection with Nashiri’s request to reduce the number of trips he must take between his detention cell at Camp 7 and Camp Justice, where the commission is located. Nashiri’s preference is to spend more evenings at Camp Justice, since the trips to and from Camp 7 exacerbate his PTSD.

After some introductory questions about Colonel Gabavics’ experience in commanding detention facilities, Kammen asks if he is aware that some of the Camp 7 detainees had previously been in CIA custody. At this point, the prosecution objects and notes that this question is likely to touch on classified information. Judge Spath agrees and tells Colonel Gabavics that he will have to come back tomorrow morning for a closed session. Before leaving, Colonel Gabavics notes his opposition to Nashiri’s request, seeing it as “not in the best interests of either the detainee or the operational force” under his command.

The next witness testifying on this matter is the senior military physician at Camp 7, an unidentified Army officer who is referred to in the transcript simply as “SMO” (for Senior Medical Officer). Kammen first asks the officer about his familiarity with Nashiri’s medical issues. The doctor testifies that he has reviewed Nashiri’s medical records as far back as 2007, and that he has also reviewed the Senate Intelligence Committee’s report on the torture of the Guantanamo detainees. The officer next tells Kammen that he has interacted with Nashiri several times since reporting to Guantanamo in September, and that Nashiri has complained about back pains but also “talk[ed] about how healthy he is, for the most part.” The doctor continues to provide further details about Nashiri’s medical treatment, but when Kammen asks about Nashiri’s medical records, the prosecution objects again on classification grounds.

Judge Spath is confused, since he doesn’t see anything wrong with discussing the general details of Nashiri’s medical records in open session. Chief Prosecutor Brigadier General Mark Martins interjects, explaining that “the law provides for protection of classified information in a comprehensive way.” Judge Spath agrees, but states that the defense team has yet to approach any subject that could conceivably be classified. He and General Martins have a contentious exchange on this point, with Judge Spath doubting that there is “any national security interest in the different types of [Nashiri’s] medical records[.]” General Martins continues to argue that this should not be discussed in public until Judge Spath relents and agrees to hear the medical records issue in closed session. Kammen is just as confused as Judge Spath about why the prosecution thinks the medical records are classified, and concludes the discussion by noting that “he is just like really lost here.”

After some further back and forth on Nashiri’s medical records, the commission turns to Appellate Exhibit 092, a defense request to “abate the [Commission] proceedings” on account of the government’s destruction of a CIA black site where several Guantanamo defendants were previously detained. (Judge Pohl, who is presiding over the 9/11 trial, approved the destruction of the black site without the defense team’s knowledge. Nashiri’s defense lawyers are now exploring whether to seek Judge Spath’s recusal due to his possible involvement in this episode.)

Much of the substance of AE092 is classified, but today Judge Spath is permitting the defense team to examine him during open session in connection with his possible recusal. Kammen asks a series of questions about how Judge Spath was assigned to the Nashiri case, and how he came to learn of the destruction of the black site (which Kammen obliquely refers to as the “ex parte secret substitution preservation order”). In response, Judge Spath explains that he first learned about the destruction order after he was detailed to the Nashiri case in 2014. He also tells Kammen that he didn’t know prosecutors had failed to notify the defense about the destruction order until after the AE092 motion was filed in 2016, two years after the fact.

Kammen finishes his voir dire, and the prosecution team doesn’t have any questions for Judge Spath on this point. Judge Spath decides it’s time for a brief recess, but first takes a moment to explain to everyone how seriously he takes the recusal motion.

After the recess, General Martins and Kammen have another heated exchange on the defense team’s inability to access Nashiri’s medical records. General Martins maintains that the government has properly invoked classified information privileges to protect the details of Nashiri’s medical care, but Kammen doesn’t understand how this information can sensibly be classified:

We [on the defense team] have Top Secret, Codeword clearance. What possible privilege can be there that we don’t have the authority for our client’s own medical records? This is just a rabbit hole. And if we don’t have a need to know our client’s medical history, then this can’t be a death penalty case and let’s end it. They can have a non-capital case and a lot of these issues go away, but if they want to kill them, they have got to . . . follow the law.

The dialogue between General Martins, Kammen, and Judge Spath on this issue continues at length. Finally, the prosecution and defense agree to confer again over lunch to see if any agreement regarding the medical records is possible.

After the lunch recess, the commission turns to a motion that raises yet another contentious issue: the possibility that the OCA exerted “unlawful influence” over the Nashiri case by failing to comply with the 2015 screening order. In this motion, defense counsel Kammen requests a finding that OCA intentionally “circumvent[ed]” the order by permitting the subjects of the order to continue working on Nashiri. Judge Spath appears to reject the premise of this motion. He observes that even if OCA intentionally disobeyed the order, that would only amount to violation of a judicial order, not unlawful influence. Furthermore, Judge Spath doubts that anyone at OCA intentionally contravened his instructions, and suggest that OCA was at most “ineffective” in its failure to comply with the order. According to Judge Spath, that’s not enough to constitute unlawful influence, since there is no indication that OCA’s non-compliance had a significant effect on the legal proceedings before him.

Kammen concedes that any unlawful influence by OCA is not sufficient to warrant dismissal, as the defense’s motion initially requested. Nonetheless, at this juncture he believes there is sufficient evidence of OCA “undermin[ing]” Judge Spath’s order to warrant a finding of non-compliance. Aside from deterring the OCA from further violations of the order, such a finding would also “be the right thing to do” with respect to Lieutenant Commander Stephen Gill, the legal advisor at OCA who first raised the issue of unlawful influence (and may have been transferred out of the office as a result).

For the prosecution, Navy Lieutenant Paul Morris responds, arguing that Kammen can only show “technical non-compliance” with a judicial order, which falls well short of “actual” or “apparent” unlawful influence. He further notes that even assuming the non-compliance was deliberate, there is no evidence that any of the screened personnel made any decisions or gave any recommendations on any subject related to the Nashiri case.

After a brief rebuttal from Kammen, Judge Spath defers his ruling on the motion and orders the commission into recess again.

Now the proceedings return to the subject of Appellate Exhibit 092, the defense motion to abate proceedings. Kammen begins by reminding Judge Spath that the defense team only learned this year that in 2014, Judge Pohl granted the government’s ex parte motion to decommission the CIA’s black site. Kammen explains that the decommissioning resulted in the destruction of critical mitigation evidence, and argues that this provides sufficient grounds for an order precluding the prosecution in Nashiri from seeking the death penalty.

In any capital prosecution, Kammen explains, the jury may consider the accused’s treatment during confinement. In the Nashiri case, where there are substantiated allegations of “pervasive” and “grotesque” abuse, a jury might well determine that the death penalty isn’t appropriate even after finding the defendant guilty.

Judge Spath interjects, pointing out that it is often the case in capital prosecutions that the crime scene is restored to normal use before the defense has an opportunity to inspect it. Kammen argues that this situation is entirely different, because a typical crime scene is thoroughly documented soon after the crime occurs, and that such documentation never occurred prior to the decommissioning. Kammen also suggests that any substitute evidence provided by the prosecution is unlikely to be adequate in light of the government’s pervasive misconduct in connection with this issue:

We have to remember the context in which these things are occurring. Governmental agencies since 9/11 have repeatedly lied to the courts. They have repeatedly lied to the 9/11 Commission. They have repeatedly lied to various other agencies. . . . We are certainly not prepared to give these folks the benefit of the doubt, and frankly we don’t think that the Commission can give [them] the benefit of the doubt because there is too much history here of dishonesty.

Kammen concludes by arguing that the prosecution’s conduct amounted to a “huge, huge, huge” breach of professional ethics. He further notes that even when a capital prosecution makes a critical mistake in good faith, the law is clear that they “lose the opportunity to try and kill people”; accordingly, an order precluding the death penalty is appropriate here.

Judge Spath now gives the prosecution its opportunity to respond. Lieutenant Morris opens by stating that Kammen has neither the law nor facts on his side, and that he has instead resorted to character attacks on the prosecution team and Judge Pohl. Morris continues to describe how the government’s substitute evidence, which includes video and digital photographs of the black site, meets the standards of the Classified Information Procedures Act and puts the defense in “substantially the same position” as it would be had it received physical access to the site.

The defense and prosecution continue their heated argument on this subject, but Judge Spath doesn’t give any indication as to how he will rule. Instead, he defers further discussion on the motion to tomorrow’s classified session, and orders the commission into recess again.

Following the recess, Judge Spath calls the commission to order for today’s final open session. He notes that al-Nashiri has joined his attorneys for this session, and states his intention to finalize a few minor issues before adjourning for the day. He also informs the attorneys that he would like to rule on the day’s motions “reasonably quickly,” and that he expects them to make progress on the medical records issue.

General Martins informs the court that “an hour after gavel down” today he is prepared to go through Nashiri’s medical records with the defense team, reviewing every page in the record to disclose as much as possible without compromising on any applicable privileges.

Defense counsel Navy Lieutenant Commander Jennifer Pollio interjects, observing that a line-by-line review is unlikely to be fruitful without Judge Spath’s intervention. Pollio explains that a substantial part of Nashiri’s record is comprised of physicians’ handwritten notes, and the prosecution has refused to disclose the notes because a handwriting expert could potentially use them to uncover the identities of Nashiri’s physicians.

Judge Spath, bemused, asks General Martins if “[he] really thinks the defense team is going to hire a handwriting expert” to discover the identities of Nashiri’s doctors. General Martins argues that his refusal to disclose handwritten notes is not based on the fear that the defense will use a handwriting expert; rather, he is trying to ensure compliance with the applicable classification guidance (which protects the identities of Nashiri’s physicians).

After some additional back-and-forth on this point, an exasperated Judge Spath concedes that he may ultimately need to do an in camera review of the records to definitively resolve the issue, adding to the considerable amount of in camera review that he already has on his plate. He further notes that issues like these have delayed the proceedings considerably, and that “it’s going to be 2018” before they finally set a schedule for Nashiri’s trial.

Judge Spath conducts a little more housekeeping on the various motions before him, explaining when he expects to rule on them. Before adjourning, he turns to Lieutenant Morris and asks him to confirm that this is his last appearance before Judge Spath. Indeed it is, Morris confirms. He is leaving active duty for the reserves, and going to work full-time for the Department of Justice. Judge Spath wishes him good luck, and calls the proceedings to a close.