7/26 Session: Rampant Unlawful Influence, with a Brief Detour to the Confrontation Clause

Judge Pohl calls the session to order. Optimism for a productive day is in the air. We’ll get through at least four motions today, and are on track to finish up the open sessions and get into this week’s 806-closed session ahead of schedule.

Judge Pohl picks up from yesterday’s session on a hopeful note: because there is only one courtroom at Guantanamo for the three proceedings currently underway, and because “there may very well come a time when one of them actually goes to trial,” the government should consider the logistics. Judge Pohl thinks the case in trial should take priority over pre-trial proceedings in the others, and Brigadier General Mark Martins of the prosecution assures him that if he wants to move forward, the government will work out the logistics.

Before getting into new motions, we have a few points on prior motions to address. First, Judge Pohl and defense attorney James Connell discuss the meaning of the commission rule governing video teleconferencing (VTC) witnesses and Judge Pohl’s previous order on the subject. Next, Connell wishes to clarify his position regarding the statutes of limitations for particular war crimes, relating to the prior motion AE 251. Connell argues that 18 U.S.C. § 3286, which extended the usual five-year statute of limitations for particular terrorism crimes to eight years in some cases and did away with the limitation altogether in others, applies only to civilian domestic crimes, not to war crimes.

Prosecution attorney Danielle Tarin counters that the extension statute certainly does apply to these particular crimes. Connell rebuts that, “if the United States had chosen to charge these men with these offenses in the United States, they would have had the benefit of an eight-year statute of limitations and could have done so until 2009.” But since the United States chose to prosecute the defendants for war crimes at Guantanamo, § 3282’s five-year statute of limitations and the Uniform Code of Military Justice are controlling.

343: Remedying Unlawful Influence

Defense motions 343F and 343H are regarding the appearance of unlawful influence, stemming from a proposed rule change in 2014 that would have forced military judges presiding over the commissions to move to Guantanamo. Though this was purportedly an effort to make the proceedings more efficient, the defense was concerned that the judges might want to speed the process along to be able to move back to the States--perhaps inclining them to deny defense continuance requests, for example.

The convening authority responsible for the proposed rule change, Major General Vaughn Ary, resigned after the proposal was determined to be unlawful influence. But, the defense notes, other members of the government involved in that proposal still work at the convening authority. The defense discusses various emails that acknowledge the convening authority staff understood the proposal might have amounted to unlawful influence.

In the al Nashiri commission, Judge Spath ordered that because the convening authority’s office displayed a conscious disregard for the law in attempting to promulgate the rule despite knowing it could amount to unlawful influence, anyone involved with the commission of unlawful influence there be prohibited from working on the commission further. The defense therefore asks Judge Pohl to disqualify those individuals from handling anything related to this commission following the order in the Nashiri proceeding.

The prosecution’s attorney, Robert Swann, argues that Judge Pohl has already promulgated an order relating to the unlawful influence and need not take any further action. The defense responds that at the time of Judge Pohl’s initial order, “the full involvement of persons other than Major General Ary had not come to light.” Thus, according to Connell, the order warrants reconsideration.

Relatedly, defense motion 344 asks Judge Pohl to address the unlawful influence inherent in the preparation of reports on subordinate military judges, because these reports are “a classic threat to independence.” The defense asks that the cases be dismissed for violating 948j(f)’s statutory prohibition of unlawful influence of commission judges. The prosecution counters that “remedies for unlawful influence are fashioned to eradicate any taint of unlawful influence, not to reward a party not entitled to relief.”

Time for a mid-morning break. Next, we’ll pick up with motions 373A and 091E.

373A: Access to Witnesses

Back from recess, the commission takes up a new motion regarding the seizure of attorney-client privileged DVDs. In 2014, Connell went on an investigative trip to Kuwait and Dubai on behalf of his client, Ammar al Baluchi. On that trip, he took video recordings, which he later burned to a disc to give to al Baluchi. In June 2015, the government seized those DVDs. After several months of various informal and formal requests by al Baluchi’s lawyers, all discs were returned to the detainee. The government’s report on the incident uses pseudonyms, and Connell believes the defense should be entitled to request the names of the relevant witnesses so they may be interviewed.

The government’s counsel, Edward Ryan, gives two reasons for the government’s refusal to match the pseudonym to an individual and make that information available to the defense: (1) the government has already handed over a fair amount of information, including sworn statements, so the request is irrelevant and cumulative, and (2) identifying information regarding servicemembers fulfilling their duties should not be compelled to be released in this way in discovery. Instead, the defense should submit an “interview request” to the government and the government will then review for materiality under 701 and Yunis standard.

091E: Motion to Reconsider

Next up is a motion to reconsider a previous challenge to the commission’s convening authority scheme in light of Williams v. Pennsylvania. Last Term, the Supreme Court held in Williams that a judge must recuse himself from a capital case when, in his previous role as chief prosecutor, he authorized the prosecution to seek the death penalty. For the defense, Connell argues that although the government previously prevailed on an argument that the convening authority exercises executive, rather than prosecutorial or judicial, discretion, Williams changes the analysis with respect to prosecutorial functions. Although those cross-functions that necessarily impair due process are warranted in the courts-martial context by the exigencies of the military, Connell contends that they are not so warranted in military commissions.

Prosecution attorney Major Christopher Dykstra responds that Williams merely clarified the existing standard of judicial recusal in most jurisdictions, and that contrary to Connell’s argument, “the convening authority is neither a prosecutor or a judge.” As such, Dykstra argues, the Williams decision does not impact the commissions and the motion for reconsideration should be denied.

321: Quotable ICRC Reports

Next is a brief but intense exchange related to motion 321, on whether the defense should be able to quote passages from International Committee of the Red Cross (ICRC) reports. The defense argues that there is no rule preventing open-court discussions of the reports as they contain only unclassified information, and that this “is simply material that the government doesn’t want to address in open court because of the nature of the ICRC’s opinion about the operation of Camp VII.” The government’s attorney, Clayton Trivett, responds that preventing direct quotation protects the “important relationship between the ICRC and the Department of Defense.”

Judge Pohl isn’t impressed: “You want me to deny oral argument to protect the public dissemination of information that I have no authority to prevent in an open hearing?” Trivett quasi-clarifies that the prosecution merely requests that Judge Pohl “circumscribe oral argument in this instance to not allowing [sic] for public display of the actual documents or actual citations from the ICRC as far as quotes or specific things they said.”

For the defense, Michael Schwartz counters that this isn’t about oral argument. It’s more fundamental than that: “This is a question about whether this trial is a public trial. Without quoting the ICRC documents, the ICRC summarily criticizes the government, the United States Government, for breaking the law with respect to family communications. Mr. Bin Attash has the right to present that in court. The public has a right to hear it.”

391: Death Certificates and the Confrontation Clause

Next, the government motions to introduce the 2,976 death certificates of the victims of the 9/11 attacks. Before we get too far into the admissibility of these documents, Judge Pohl breaks for lunch.

After lunch, the prosecution’s Edward Ryan argues that the documents are admissible under the hearsay exception for public records. He explains that the Sixth Amendment’s Confrontation Clause (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him”) does not prohibit their introduction into evidence. Under Crawford v. Washington, if the primary purpose of preparing the document is for litigation or investigation—if its primary purpose, in other words, is testimonial—the document is inadmissible hearsay and may only be introduced through the testimony of a witness.

Edwin Perry argues for the defense that the government is actually seeking to “cut corners and do an end-around the Sixth Amendment and the confrontation clause” through pre-admission of these records. Perry notes that “the D.C. Circuit has rejected that a death certificate or an autopsy report is nontestimonial hearsay.” But then Perry perhaps goes too far: “So in other words, if this can be used at some point down the road to prove a past event or a past fact, prove something, then it’s testimonial hearsay.”

Judge Pohl isn’t buying it: “That rationale would make everything testimonial then, right? Because you’re saying that the moment the prosecution wants to use the purported hearsay, it becomes testimonial.” Pohl turns to the practicalities of the defense’s proposed rule: “So each person who prepared the death certificate would have to come in and testify?” Yes. “Could a supervisor who’s familiar with the practice of the office come in?” No. And who comes in for the court orders? The judge would have to come in.

Judge Pohl questions whether Congress intended for the same evidentiary rules to apply under the Military Commissions Act. Perry argues that such a provision would be unconstitutional: “Congress cannot enact a statute that provides less than the Sixth Amendment. The Sixth Amendment is primary.”

James Harrington, a defense attorney, suggests that there may be a “middle road” option for Judge Pohl: redact the death certificates to show only date and fact of death. Judge Pohl has some concluding concerns about whether the confrontation clause analysis allows for such piecemeal analysis.

After a series of other motions, especially the issue of defense counsel’s computer network access in Guantanamo, which apparently has been revoked for all persons subject to demonstrating a need to know, it’s time for an afternoon break.

363: More Unlawful Influence

After some final points on the access issue, last up is 363, another motion to compel discovery. Again, the defense wants discovery on a potential unlawful influence issue. In an advocacy capacity, some members of the defense teams attend international conferences, such as the Committee Against Torture review in 2014 and the Universal Periodic Review at the United Nations Human Rights Committee in 2015, a “state-driven process in which other countries ask questions to the United States.” Apparently at meetings in Geneva, the defense team sought permission from the US embassy in Switzerland to attend in uniform—though servicemembers typically do not wear military uniform in Switzerland out of respect for Swiss neutrality.

Brigadier General Richard Gross, who was also in attendance at several of these meetings, was apparently concerned over the defense team’s attire. General Gross sent an email to the Chief Prosecutor and Chief Defense Counsel expressing his concerns:

I question their presence here at government expense. They are here to publicly criticize and question U.S. policy at the civil society engagement, not defend their clients. The fact that some are in uniform makes this even more egregious. . . . Can something be done to address this?

James Connell argues that this email was an attempt to unlawfully influence the Chief Defense Counsel and the servicemembers operating under him—exactly “the sort of reaching outside of a person’s lane . . . to directly impact the chain of command of the servicemembers who represent [the] detainees.” For the prosecution, Robert Swann responds that General Gross’s email could not be unlawful influence as it was written to officers at an equal or higher position. He argues that the defense wants discovery based on “mere speculation.”

Connell hits back: “Well, the government’s position on all of these motions seems to be, we plan to win, so why should we have to do anything? And that’s fine. I mean, optimism is great. But we haven’t plead the actual motion yet.” Walter Ruiz of the defense clarifies that there are many more facts in the pleadings on this motion that tend to show unlawful influence. Given those other facts, General Gross’s question was not a benign inquiry about attire, but rather a request that the government “do something about it.” Defense attorney David Nevin also dives in to make a point about the “political component” of the case.

Swann falls back on a tried and true appeal to the moral seriousness of the proceedings, arguing that this case is beyond the merely political:

When everyone stops thinking about this case as a political case and starts thinking about what it is, what occurred on September 11 and how 2,976 men, women, and children were summarily executed, when over 3,000 children were left fatherless or motherless or without grandparents to help them be raised…

Nevin objects on relevance to unlawful influence, but Judge Pohl isn’t having it, saying that Nevin “invit[ed] this response.”

After laying out the schedule of motions to be heard in open and closed sessions for the rest of the week, the commission is in recess.