8/5 Motions Hearing #3: Cole Photographs and the Yemen Friendship Agreement

In the final session for the day, Judge Spath announces he has come to a ruling on AE277.  This is the defense's bid for Al-Nashiri to have an MRI examination, presumably in order to unearth the damage wrought by his abuse at CIA hands. The item had been the subject of a secret Rule 505(h) session on Monday, wherein the parties discussed the handling of classified information and the need (if any) to close the courtroom.  But now the court explains that he does not "see a reason to close the hearing for the piece of information that we discussed during the classified portion yesterday." Memorializing this, Judge Spath says he will submit a written ruling for the record---which is apparently forthcoming.

We then turn to AE283, in which the United States asks, in essence, to schedule a further preliminary session. Prosecutor Lt. Bryan Davis begins, describing his sought relief as modest: the United States "simply requests that the commission set a hearing to determine the admissibility of 93 photographs and three videos . . . that were taken around the site of the bombing of the USS Cole in Aden Harbor."  M.C.R.E. Rule 104 empowers the Judge to make admissibility calls outside of the presence of commission members, and Rule for Military Commission 906(b)(11) likewise refers to pretrial motions as an appropriate vehicle through which to determine admissibility.

Despite the legal authority, Davis candidly acknowledges that it is in Al-Nashiri's interest not to have evidence presented to the military judge that will not eventually be used as evidence in the case. But Davis nevertheless asks that Judge Spath consider the efficiency of deciding evidentiary matters ahead of time. He adds that any prejudice against the accused would be mitigated by the fact that the government still bears the normal burdens of demonstrating authenticity, relevance, and so forth---when at least the photographs are introduced as evidence at trial.

But is it really in the interest of judicial economy to go through admissibility determinations twice: once pre-trial, and then during trial?  Judge Spath asks; Lt. Davis responds that he doesn't anticipate that the defense would challenge all pieces of evidence twice; the process thus would be streamlined, in that the commission could spend less time considering each piece of evidence seriatim and more time focusing on the substance of the matter. The prosecutor moves to the matter of timing: if Judge Spath were to grant such a hearing, the government requests that the parties be given 45 days of notice, as opposed to the defense's request of 120 days.

Speaking for Al-Nashiri, Major Tom Hurley says the defense doesn't object to a preliminary admissibility ruling generally. But he wants to be absolutely clear that the government must still lay the appropriate foundation for eventual admissibility.  And in any event, regarding these photographs specifically, Major Hurley thinks that having a hearing would be a waste of time: witnesses would have to come testify, uprooting their lives, during the hearing and later, in the prosecution's case-in-chief.  As for the timeframe question, the defense attorney says that the 120 day timeframe is helpful because, "when you call [witnesses] as a representative of the Nashiri defense team, as a representative of someone who is alleged to be a terrorist, that doesn't get a lot of phone calls returned." The prosecution's reply after this is exceedingly brief; once its done, AE283 lands in Judge Spath's inbox and awaits decision.

Next, the Court simultaneously considers motions AE285 and AE306. Both, explains defense attorney Maj. Allison Daniels, "ask[] that this commission dismiss all charges as well as the death penalty because the Military Commission Act as applied to Mr. al Nashiri violates the Yemen Friendship Agreement."  The accord was signed by President Truman and reaffirmed in 2004; Article III of the agreement is as follows:

The foregoing, and the rest of the agreement together comprise a treaty, in Daniels' view; and under the Supremacy Clause of the U.S. Constitution, Congress cannot modify its strictures down the road, by dint of the Military Commissions Act.  Is Guantanamo Bay part of the "United States of America," though?  The defense says yes: because the U.S. has "de facto sovereignty over GTMO and plenary control of the entirety of the installation," it is enough of a hook to implicate the Yemeni Friendship Agreement. Bahlul, furthermore, suggests that certain clauses of the Constitution extend to Guantanamo, too.  As a result, says Daniels, Al-Nashiri "can be treated no differently than a United States citizen who is accused of the exact same charges, and the MCA specifically does not apply to U.S. citizens."  She has in mind key procedural mechanisms excluded by the statute---including jury selection, impartiality of the judge, and evidentiary rights. Does the Yemeni Friendship Agreement, Judge Spath asks, apply to enemy belligerents? Yes, apparently; the defense contends that the agreement was reaffirmed in the post-9/11 era, so if President George W. Bush had wanted to alter the plain language of the agreement, he could have done so.

Lt. Davis rises for the prosecution.  He starts by inviting Judge Spath to imagine a world in which the Yemeni Friendship Agreement applies, in the fashion suggested by Daniels and company: if so, then the accused must be treated in accordance with international law, and with the fullest protections of the laws of the United States. Well, fine; the MCA is the law of the United States. In any case, citing to past commission orders 117C, 114C, and 180C, Lt. Davis notes that "virtually all of the issues raised by the defense have been addressed by this commission. This is simply a second bite at the apple, if you will, with the defense and this motion." We've been here, done that, already. The prosecutor adds, at any rate, the Yemen agreement is not the sort of instrument that would help Al-Nashiri here: "the presumption is that international agreements, even those which directly benefit private persons, generally do not create private rights or create private -- or provide for private cause of action."

Daniels rises in reply, and stresses more facts than law---by articulating all of the ways in which Al-Nashiri is treated in a way unequal to a U.S. Citizen. The commission has admitted 66 hearsay statements against him, he has no subpoena power, and Judge Pohl's impartiality to rule on past motions was highly questionable. Her comments quickly conclude, and with them, argument on the defense motions invoking the Yemen agreement.