2/24 Motions Hearing #3: Change of Venue

The last matter for the court this morning is AE 187, a defense motion seeking to move the location of the military tribunal from Guantanamo Bay, Cuba to Norfolk, Virginia. Commander Mizer, for the defense, points the court to Rules for Courts-Martial (RCM) Rule 606(b)(11) as authority for the claim that the case for a present-day attack on the U.S.S. Cole would be held in Norfolk because the "crime scene," convening authority, witnesses, and even prosecution and defense lawyers all reside in or near Norfolk. Judge Pohl questions whether he has the authority to change the venue when the RCM provision cited by the defense does not have an analogous provision in the rules governing the military commission. In fact, doesn't the lack of such a change of venue provision indicate Congress's intent not to provide that power? Mizer notes that two provisions of the Military Commissions Act, 10 U.S.C. § 949j, which requires that defense counsel have comparable opportunity to obtain witnesses before a military commission as it would in federal court, and 10 U.S.C. 949a, applying courts-martial procedures to military commissions, fail to expressly carve out changing venue from the court's power and so the court is able to change venue. Finally, Mizer notes that the prosecution previously argued that the military commissions lack subpoena power because, in part, they have the option to change venue and, as such, the court should exercise that power if it ultimately decides it does not have subpoena power. Judge Pohl asks Mizer how he would get around the provision of the National Defense Authorization Act prohibiting the expenditure of Defense Department funds to transfer individuals from Guantanamo Bay to the United States. Mizer urges the court to utilize funding either from the Department of Homeland Security or, more likely, from the U.S. Marshals Service who have general responsibility for moving prisoners across the country. Lt. Bryan Davis rises for the prosecution and rejects the defense's contentions that the location of the trial "must have some nexus to the location of the charged offenses" and that holding the trial in Guantanamo Bay deprives the defendant of his right to a fair trial. In regards to the nexus between the location of the trial and the charged offense, Davis notes that such a requirement has never been held to apply to military commissions. Nor is this inconsistent with Article III courts, which often hear cases taking place on the high seas in a location with no nexus to the site of the charged offense. As to potential prejudice to the defendant from a trial at Guantanamo, Davis argues that such prejudice is hypothetical and lacks any evidence bearing out such assertions. Because the jury will be drawn from around the world and will be the same whether the case is heard in Guantanamo Bay or Norfolk, there can be no prejudice to Al-Nashiri. Finally, regarding witnesses, Davis notes that while the prosecution contends that the court lacks subpoena power, it may still exercise compulsory process to issue a subpoena and require a witness to testify remotely. Thus, there is no reason to overturn the convening authority's decision, pursuant to the Rules for Military Commissions (RMC) Rule 504(e), to hold the trial at Guantanamo. Mizer responds on rebuttal that pretrial publicity is not the only consideration for a change of venue in the military context and the military judge, at least under the RCM, has the authority to change the convening authority's venue determination. The government passes up the opportunity for its own rebuttal and the court recesses until the afternoon session.