4/24 Motion Hearing #4: Miscellany

The court returns from recess and quickly puts off consideration of two defense motions---AE229 and AE230---seeking to compel information from the government pertaining to the training and certifications of the medical personnel treating Al-Nashiri, as well as any changes in the Guantanamo medical polices for high-value detainees since 2006. The government indicates that Friday's witness, the senior medical officer in charge of Al-Nashiri's care, can answer these questions faster than the government can provide a response. Judge Pohl says the defense can raise these motions again if they are unsatisfied with that testimony. Next, the defense raises AE237, a motion related to the defense's request for clarification of process by which it may appeal denials of access to JWICS and SIPRNet. While the defense team previously had such access as members of the military, their access was curtailed in July 2013 by Secretary of Defense Chuck Hagel. This motion asks for the reasons underlying the Secretary's decision. Maj. Hurley concedes that this is Secretary Hagel's prerogative, but explains that the defense may seek relief from that order from either the Secretary or the military commission if the reasons for the restrictions appear arbitrary or capricious. Mr. Sher reiterates the government's position on defense access to the classified networks: The defense may rely on discovery for documents relevant to their case. The court moves on to AE241, a defense motion to dismiss the charges against Al-Nashiri pertaining to the attack on the M/V Limburg for lack of jurisdiction under international law. As CDR Mizer explains, "international law does not permit the United States the authority to punish acts against French ships, Iranian oil, Bulgarian nationals, or Malaysian contracts." Anticipating the government's arguments, he notes that it is the government's burden in this case to show that there is some basis for jurisdiction over this issue, and it is insufficient for the prosecution to claim that the US was vindicating French interests at the time when there is no evidence that France believes it is at war. The prosecution's Maj. Evan Seamone explains that, under the international legal principle of lex specialis, the relevant law in this case is the international law of war, which provides jurisdiction over any enemy engaged in hostilities with the US who violates the international law of war during the period of hostilities. Further, analogizing to the protective principle of national jurisdiction, the government explains that development of evidence at trial would demonstrate a nexus between the attack on the Limburg and US interests: oil prices, shipping insurance rates, and security in Yemeni waters where US Navy ships operate. The attack was also part of a common scheme or plan to attack the U.S.S. Cole and The Sullivans to "encourage prompt departure from the Middle East" by the US and its allies. After brief rebuttals on the issue from both sides, Judge Pohl raises motion AE246, a defense motion to strike the government's first asserted aggravating factor that would warrant the death penalty---that the life of one or more persons other than the victim was unlawfully and substantially endangered. Learned Counsel Kammen points out that the aggravator does not specify exactly which persons were allegedly endangered by the defendant's conduct and so is impermissibly vague. It allows the prosecution to pick the targets of this aggravator depending on how the evidence unfolds without adequate notice to the defense. On behalf of the prosecution, Mr. Sher explains that one may fairly infer that the aggravator, when read with the charge with which it is associated, refers to all the sailors---injured and uninjured---aboard the Cole on the day it was attacked. Learned Counsel Kammen returns to reiterate that this stacking of aggravators onto vague charges creates an "unconstitutional stacking of the system in favor of death." Argument on this motion concludes and the court recesses until Friday morning.