Coverage of al-Nashiri’s Arraignment

Lawfare was on hand earlier today at Ft. Meade, Maryland, to witness the first live (well, 40 second-delayed) transmission of military commission proceedings in Guantanamo Bay, Cuba to a location here in the continental United States.  The day’s events included not only the arraignment of Abd al-Rahim al-Nashiri on charges arising out of the attempted bombing of the USS The Sullivans in January 2000, the bombing of the USS Cole in October 2000, and the bombing of the French oil tanker MV Limburg in October 2002, but also an extensive voir dire of Military Judge Col. James L. Pohl (USA) by lead defense counsel Richard Kammen (or, as al-Nashiri referred to him, “Mr. Rick”), Military Judge Pohl’s ruling on three defense motions, and an hour-long post-hearing press conference.  In addition, Pohl set al-Nashiri’s trial date for one year from today, November 9, 2012, subject to possible defense extensions and al-Nashiri’s waiving of his § 707 speedy trial rights (which he did). Before launching into a brief summary of the various developments from today’s proceedings (a more detailed discussion will follow tomorrow), I want to take the opportunity to thank the folks at the Office of the Secretary Defense Public Affairs Office and Ft. Meade Public Affairs Office for running a very smooth operation, especially given that this live feed was the first of its kind.  Indeed, the PA officers were quite helpful and accommodating to the members of the media present, including providing shuttle bus service throughout the day and ensuring that reporters had access to electrical outlets—no easy feat in Ft. Meade’s base theater. As for the actual commission proceedings, the purported main event—al-Nashiri’s arraignment—took up the least amount of time.  After hearing the charges against him, al-Nashiri, through Kammen, reserved his right to plea at a later time.  Perhaps more interestingly, Pohl engaged in an extensive back-and-forth with al-Nashiri over whether he wished to keep Assistant Defense Counsel Michael D. Paradis on his defense team, given the potential conflict arising out of his representation of Ali Hamza Ahmad Suliman al-Bahlul, who is charged as co-conspirator of al-Nashiri (Ben wrote about Paradis’ representation of al-Bahlul yesterday).  Al Nashiri stated that he understood that there was a potential conflict and that he had a right to conflict-free counsel, but wished for Paradis’ to continue his representation. In addition to the arraignment, Military Judge Pohl ruled on three defense motions related to 1) the ultimate disposition of al-Nashiri if he were to be acquitted (i.e., the law of war detention issue); 2) concerns over the possible disclosure of details related to defense requests for expert assistance; and 3) the procedures used by the Office of the Prosecution Joint Task Force – Guantanamo personnel in itstheir screening of mail marked “attorney-detainee” privileged. With respect to the first motion, in which the defense requested the government to state clearly whether it intends to continue to detain al-Nashiri even if he is acquitted, Pohl seemed sympathetic to the defense’s concerns.  However, he believed the motion to be premature and thought it could be handled later as an instruction.  For now, he denied the motion with leave to file an amended pleading. The defense’s second motion involved requests for expert assistance.  The defense moved for permission to file in camera, ex parte requests for expert assistance, citing its concern that the prosecution could learn privileged or work-product information from any details provided in the requests.  Pohl, however, more or less sidestepped the issue, noting that this seemed more aimed at the Convening Authority and it remained an open question as to whether he would accept requests lacking detail.  Before issuing any order, Pohl believed it would be best for the government to write a letter to the Convening Authority to learn his views on the matter.   When defense counsel expressed interest in making it a joint letter, Pohl stated that he believed this “makes sense.” The third motion arose out of the defense’s concern that the government was reading the contents of attorney-detainee privileged mail being sent into Guantanamo Bay.  After more than of hour of argument — which included calling Joint Task Force – Guantanamo Bay Staff Judge Advocate Cmdr. Thomas Welsh to the stand — Military Judge Pohl issued a fairly defense-friendly order outlining how the government will handle attorney-detainee privileged mail going forward in this case.  In short, a) the defense and prosecution are to agree on a marking system for attorney-detainee privileged mail; b)the government  JTF personnel may review the mail for such markings; c) improperly marked mail may be seized; and d) failure to comply with this procedure will result in Pohl’s revisiting the issue and may consider the government’s alternative solution to the matter—the standing up of a third-party “screening team.” After setting the trial date, Pohl recessed.  An hour later, the defense, prosecution, and victims’ families made comments at a press conference.  Richard Kammen and Lt. Commander Stephen Reyes spoke on behalf of the defense.  Kammen described the day’s proceedings as “very, very interesting” and believed that they demonstrated the problems of military commissions, a system he believed to be “hopelessly unfair.”  The Chief Prosecutor, Brig. Gen. Mark Martins, then made prepared remarks that emphasized the historical pedigree of military commissions, the “armed conflict” nature of the charges against al-Nashiri, and the United States’ “faithful adherence” to the rule of law.  Lastly, the victims’ and survivors’ families, with John Clodfelter speaking as their representative, discussed their thoughts and feelings on seeing al-Nashiri in person for the first time.  They believed that the arraignment got the proceeding “off on the right track” and hope to see justice done. More details of all of today’s events will follow tomorrow.