3/3 Session #3: To Reconsider

Lunch hour concludes at Guantanamo and at Fort Meade. Thus we come to AE248H, the prosecution’s motion to reconsider Judge Spath’s prior ruling, that granted a defense motion and excluded certain evidence of Al-Nashiri’s “wanton disregard for human life,” so far as concerns the charge of terrorism against the accused. In short, the government desires to show that foreign nationals located in and around the Cole, at the time of the attack, were harmed---rather than military personnel who were on the boat, but who are not, under the circumstances, deemed protected persons under international law. Such evidence would demonstrate the “wanton disregard” alleged by the government, but Judge Spath had excluded it incorrectly, in the view of the Chief Prosecutor, Brig. Gen. Mark Martins. The court’s ruling only permitted proof regarding foreign nationals on the Cole only, but blocked proof as to other persons near the explosion---despite the government’s apparent plan to prove “wanton disregard,” by submitting evidence regarding affected non-victims who were in the surrounding area. Thus Martins specifically asks for paragraph five of Judge Spath’s earlier order (248B) to be reworded. This “unjustifiably” operates to exclude relevant, probative evidence regarding the Cole---and the fact that the vessel’s bombing counted as a terrorist attack. The point is this, in Martins’ view: Judge Spath’s error arose from confusion. The defense, and later the court, relied on materials concerning the charge of perfidy, not the charge of terrorism, as Martins makes clear through citation of transcript and motion papers. Only the latter charge includes the “wanton disregard” element.  The Chief Prosecutor thinks this mistake in turn led Judge Spath to grant the defense filing, and improperly to shrink the universe of evidence that prosecutors might use to prove “wanton disregard.”  But he now asks Judge Spath to reconsider, especially given the charge sheet’s extensive and detailed allegations of operations taking place in and around the Gulf of Aden, where the Cole was attacked. In this regard the Chief Prosecutor also cautions that, if allowed to stand, Spath’s ruling might cut out highly probative testimony: take the testimony of one Yemeni witness, who observed events from a refueling dolphin adjacent to the Cole. (The latter wasn’t “on board” the Cole, and thus his comments would not be permissible under Judge Spath’s order.) Or that of many other Yemenis, whose names and locations are displayed on a chart that Martins displays. For these reasons, the Chief Prosecutor asks the court to strike the offending language in the relevant paragraph, or to clarify his ruling so as to permit the admission of needed proof. Maj. Tom Hurley speaks now for the accused. There was a ruling by the commission he says; and a motion to reconsider, argued extensively by Gen. Martins; Hurley seems to be complaining about the lack of any new facts or law.  And one or both are required in order to grant a reconsideration motion.  The prior ruling was instead “clearly supported based on the evidence and the law,” in the defense lawyer’s view. He asks Judge Spath to deny the prosecution request---adding that Martins and company appear to seek an impermissible advisory opinion in advance of trial. (As an aside, Hurley observes that the prosecution surely will take an interlocutory appeal, upon a denial of the motion---and thereby delay matters.)  He adds a few words more---Hurley appeals to the court’s experience and wisdom, for example, in urging the motion’s rejection---and returns to counsel table. Martins in rebuttal: You have the authority to reconsider, just as we’ve suggested, under military commission rules. Clear errors of law, for example, can and should compel reconsideration. And there’s no request for an advisory opinion here, either: Instead, the prosecution seeks clarity about what is and what is not out of bounds.  He concludes. This brings our docket---and our coverage---to an end. Court and counsel touch on a few housekeeping and scheduling matters before the proceedings wind down.  See y'all in April.