Coverage of Al-Nashiri’s Arraignment: Motions Hearing Part 1

I’m going to wrap-up Lawfare’s in-depth coverage of Abd al-Rahim al-Nashiri’s arraignment with some discussion of the post-arraignment motions hearing. Given the length of this part of the hearing, I’ll be presenting it in three parts, one for each of the three defense motions ruled on by Military Judge Pohl.  The first motion—whether al-Nashiri may be able to attain a meaningful acquittal—is one with which Lawfare readers are likely familiar given Bobby’s earlier coverage here and here. As soon as the arraignment is complete, Judge Pohl jumps into the motions hearing.  He notes that the first motion asks the commission to order the government to inform the defense what would happen if al-Nashiri were acquitted; that is, what would his post-trial custody status be.  Lead Defense Counsel Richard Kammen states that this is correct.  He then notes that, based on public statements from many public officials, it is clear that if al-Nashiri is acquitted, there is no intention to release him.  Indeed, Kammen states that he believes that the prosecution has conceded as much in its response brief, citing the Executive’s power under the AUMF (Authorization to Use Military Force) to detain al-Nashiri.  He says that he wants the government to formally acknowledge this position, as it will insert itself into the litigation in multiple ways.  He notes the ongoing litigation over the scope of the protective order, stating that if al-Nashiri is never getting out, then the need to withhold information changes.  In addition, this issue implicates the scope of discovery and what is appropriate discovery. At this point, Judge Pohl interjects, “not to argue for the government’s position,” and asks, “hypothetically,” whether Kammen believes that the government’s position is that there is authority to detain al-Nashiri until the end of hostilities.  Kammen states that this is the government’s position.  Judge Pohl responds, saying that there is a potential end to the hostilities, at least in theory.  Kammen agrees, “in theory.”  He then notes that the “war on poverty” and “war on drugs” are ongoing.  Judge Pohl states that there is a legal difference between those “wars” and this one.  Kammen reiterates that this is what he understands the government’s position to be.  He again states that the defense simply wants the government to acknowledge that its position is that it will continue to hold al-Nashiri regardless of the outcome of the case. Kammen then, without much segue, begins discussing social science research into the death penalty.  He notes that the research shows that jurors want to know what will happen when they convict someone; he cites Witherspoon v. United States, in which the Court recognized that some jurors opposed to the death penalty may not be willing to convict and thus required that a jury be “death eligible.”  Kammen argues that in a situation in which a defendant will not be released, it raises issues similar to those in Witherspoon, such as whether Witherspoon “excludables” should be excluded from service on a member panel. Kammen notes that there may be another issue—if a military service member believes that acquitting al-Nashiri will result in his continued detention, then he or she might not want to travel to Guantanamo to participate in a “meaningless” trial.  Judge Pohl notes that the members do not get a choice as to whether they will be panel members.  Kammen responds that they get a choice in whether or not they will stay.  Judge Pohl corrects him, slightly, stating that they may participate in the decision as to whether or not they stay. Judge Pohl at this point asks Kammen if, “at the end of the day” all he wants is an instruction.  Kammen says yes, among other things.  He states that he does not see this as speculative, given the government’s position here and in other courts.  Kammen states that the government recognizes that the detainees have a habeas right, but also that the United States is not obligated to comply with an order from an Article III or military commission judge.  Judge Pohl states that it is true that the decision to continue holding a detainee is not made by the Office of Military Commissions or the prosecutors in this case, but rather by people “higher up.”  Judge Pohl states that the prosecution could say right now that the government will not release al-Nashiri if he is acquitted, but notes that the prosecution is free to change its position between now and the end of the trial.  Indeed, Judge Pohl says that two years ago, the detention facility at Guantanamo was supposed to be closed.  He notes that he is no habeas expert, but states that he believes it is correct that a habeas judge cannot order release from Guantanamo because he cannot “order immigration to be released.”  Kammen states that he just wants the government to clearly state its present intent regarding its post-trial plans for al-Nashiri in the case of an acquittal; given “the realities” of the situation, he states that there is no reason to believe there will be a change in position, regardless of who is in office.  Kammen says he simply wants transparency and honesty. Judge Pohl asks if trial counsel would like to respond.  Lead Trial Counsel Anthony Mattivi states that what Kammen says “we all know,” we don’t know.  He says that the commission has “meaningful work” to do and that the verdict is “meaningful.”  Mattivi then notes that this is separate and apart from everything else.  He states that the government does not concede and has not conceded that al-Nashiri will be held if acquitted.  Mattivi states that he believes the prosecution put forth an accurate statement of the law in its response brief.  He contends that Kammen is conflating the AUMF and the MCA and this should not be permitted.  He states that the commission should not be drawn into this issue and be asked to give the “ultimate advisory opinion.” Judge Pohl interjects and asks Mattivi whether he believes a member might “backward plan” al-Nashiri’s sentence if the member thought acquittal would result in release.  That is, Judge Pohl appears to be suggesting that a member might be less willing to acquit if he thinks al-Nashiri will go free, rather than remain in detention.  Mattivi sidesteps this concern, stating that members will follow the instructions that are given to them.  He adds that he believes that they will be adequately instructed.  Mattivi states that what the defense really wants to argue about is the qualification of members.  He thinks this is a unique, preliminary argument. Judge Pohl responds, saying that he understands that the defense believes that al-Nashiri’s post-acquittal status may impact preliminary issues.  He asks Mattivi if he would oppose an instruction that states that there is a procedure that would allow the defendant to remain in indefinite detention.  He notes that the defense wants a firm position, but that the government is telling him that (1) he does not have the authority to make this decision and that (2) a decision has not been made.  Judge Pohl then offers another possible instruction: acquittal does not mean freedom.  He asks if Mattivi opposes that, noting that he is not asking to bind him now. Mattivi states that he shares the defense’s concerns over planning and prepping for trial and wants the defense to be able to mount the same defense it would in federal court.  But, Mattivi notes, part of what litigation counsel does is plan for different outcomes.  He says that he knows that the defense wants an answer now, but he states that we do not know what the situation will be when we get to the instruction conference. Judge Pohl states that this issue is different from federal court.  In federal court, he argues, if an individual is acquitted but has no other issues with the justice system, he simply walks free.   Mattivi agrees, assuming there are no other issues.  Judge Pohl repeats himself, but with more specificity, stating that if there is no other warrant for the individual’s arrest, he will go home.  He states that the situation is different with al-Nashiri; here, there is no legal bar to prevent the government from simply putting him back in his cell.  Mattivi says if there were no AUMF or no hostilities at the time of acquittal, then the government could not do that.  Judge Pohl, a bit exasperated, says “today” there are no legal prohibitions preventing the government from putting al-Nashiri back in his cell.  Mattivi concedes, “Yes, like Ghailani”—who, of course, was tried in federal court, not in a military commission. Judge Pohl states that he believes this is the defense’s concern, but agrees with Mattivi that the issue is premature. He reserves the matter as a jury instruction issue, saying that the defense could draft an instruction now but that he doubts that they will get to it any time soon.  He suggests that the draft could say something along the lines of “there is legal authority to restrain the accused post acquittal.”  Judge Pohl then says if the defense believes this issue impacts other parts of the case, then it should include that information in the instruction.  He notes that he is not sure about some of the concerns, but does believe there is something to the “backward planning” problem. He brings the argument to an end and rules that the defense’s motion is denied with leave to file an amended pleading that talks about the instructional issue and any other issues the defense believes appropriate.  He says that he will address it at that time.  He asks if either side has any questions; Kammen states he has no questions. The defense’s second motion—to allow in camera, ex parte requests for expert assistance with limited notice to the prosecution—will be the subject of a later post.