4/24 Motion Hearing #2: Recalling Crosby & Another Multiplicitous Charge

The afternoon session gets started without Al-Nashiri in attendance. Learned Counsel Rick Kammen rises to press Lt. Hurley's case one last time that the defense should be able to question Dr. Crosby about certain facts that, he says, will show systemic problems that contribute to the inadequacy of treatment at Guantanamo Bay. Judge Pohl hears out the defense's case and realizes that there had been a miscommunication between the court and the defense. The court recalls Dr. Crosby so she can testify as to specific issues that speak to the treatment that Al-Nashiri can receive on the island. While Dr. Crosby returns to the court, Judge Pohl continues the proceedings with consideration of AE235, the last of the defense motions to dismiss a charge for multiplicity, the remainder of which were discussed during Wednesday's session. Maj. Allison Danels asks the court to dismiss the charge for attacking civilian objects as subsumed by the charge for hazarding a vessel. According to Maj. Danels, an element of the latter charge is attacking a civilian object---in this case the M/V Limburg---and so if the prosecution successfully proves that the defendant hazarded a vessel, it will also have proven that he attacked a civilian object. CDR Andrea Lockhart provides what has become a familiar response to the defense's claims of multiplicitous charges: In fact, the charges for attacking a civilian object and hazarding a vessel have different elements. The former requires that the defendant intended to attack civilians, while the latter requires intent to endanger the safe navigation of a vessel. While a conviction for both charges might require that they be merged for sentencing, they are not multiplicitous and should not be dismissed before the facts are presented and the jury renders a verdict. Maj. Danels has a new argument against the government's potentially overlapping charges: Even if these charges are merged for sentencing, it "skews [the proceedings] in favor of death." With Dr. Crosby still on her way back to the court, the parties continue to the next motion.