Last Week at the Military Commissions, 6/29 Session: Al Darbi Wants You to See His Deposition

The military commission to try Abd al Hadi al Iraqi met only once this week. The commission discussed the publicity of the al Darbi deposition, al Hadi’s presence at that deposition, the exclusion of al Hadi from proceedings at which the government or defense shares classified information, and the defense’s ability to apply for resources to obtain expert assistance ex parte. The military judge ruled that the al Darbi deposition would be bifurcated, with direct examination in August and cross-examination at a later date. Here is our summary of the proceedings.

Procedural Matters

Military judge Marine Colonel Peter Rubin gavels the hearing to session. He notes that the same parties are present as when the commissions last recessed except for Lieutenant Commander Lincoln and defense counsel Brent Rushforth. Judge Rubin notes that the commission has granted a request for Rushforth’s absence through the remaining commissions that will meet in 2017 and has received a waiver from the accused consenting to Rushforth’s absence. Judge Rubin notifies al Hadi of his rights and al Hadi says he understands. Judge Rubin then summarizes a June 27 RMC 802 session and a June 28 pretrial conference, both of which occurred with all counsel but not al Hadi present.

Defense counsel Adam Thurschwell wants to put two matters on the record. First, he notes that the defense has not promised a certain date of notice for a recent set of discovery documents that is several hundred pages longer than anticipated. They anticipate filing a notice related to that material by the October session. Thurschwell also expresses concern about the delays in turning over discovery to the government. He shows the court an image of a report that contained information that is highly significant to the defense preparations for the deposition of Ahmed Mohammed Haza al Darbi.The report says that al Darbi stated that he received field commands from al Hadi in 1996. Thurschwell notes that the importance of this evidence illustrates a need for expedited discovery turnover. Judge Rubin asks the government if there is any outstanding discovery. Navy Commander Douglas Short, counsel for the government, notes that there is still outstanding discovery and that the government is working to prepare them for the defense.

Should the al Darbi deposition be public?

In the opening proceedings, Judge Rubin notes that both parties have agreed to bifurcate the al Darbi deposition, with the direct examination of al Darbi during the August session cross-examination to occur at a later date to be determined.

Judge Rubin opens oral argument on the government’s motion to depose Ahmed Mohammed Haza al Darbi in private. Commander Kevin Flynn makes three arguments for the government. First, he argues that a deposition is a preliminary proceeding to a trial, not part of the trial itself. It is not a session under Section 949d of the MCA nor is it governed by the RMC 806 public trial provision. Moreover, while RMC 702 is silent on this issue, it does state that the accused does not have a right to attend a deposition. Therefore, he argues that the public likely does not have an absolute right to watch the deposition either. He cites to a series of federal cases holding that the principle of public access does not extend to a deposition taken under the Federal Criminal Rule of Procedure 15(a). He also cites to case law that the Sixth Amendment right to a public trial may not extend to a deposition if the deposition is later shown at a public trial.

Second, he argues that a private deposition would avoid unintended consequences. Commander Flynn argues that since the judge would not be ruling on objections raised during the deposition in real-time, the public deposition proceedings would risk prejudicing the public. Further, he argues that a closed deposition would prevent any damage to national security that would arise from an unintended disclosure of classified information.

Last, Flynn also notes that active commissions, especially the Nashiri trial, have ruled on the same question in favor of the government’s position. While the Nashiri finding does not bind Judge Rubin, Flynn posits it should be informative.

Commander Flynn then addresses the arguments made in the defense’s countermotion. He believes that the defense is arguing that al Hadi is invoking the Sixth Amendment right to a public trial, which therefore entitles the public to attend his deposition. Flynn argues that, while the defense invokes Waller v. Georgia (1984), that the case is not relevant because it addresses a motion to suppress—which is part of a criminal trial—and not depositions or other preliminary proceedings. Commander Flynn also notes that the government disagrees that al Hadi can invoke the Sixth Amendment in the first instance. Commander Flynn concedes that the accused has a right to a public trial, but insists that right emanates from the MCA, not the Sixth Amendment.

Thurschwell then speaks for the defense. He first clarifies that the defense only seeks, at a minimum, to ensure that the same public access permitted for other trial proceedings applies to the deposition. He next addresses the government’s characterization of Waller. Thurschwell argues that at a minimum, Waller requires that any part of the deposition that addresses a suppression motion must be public. He also emphasizes the court’s reasoning in Waller, saying that that court held:

It was sufficiently important and sufficiently resembled the kind of hearing that is a trial … and that it served the same purpose that the Sixth Amendment right to a public trial would serve to allow the public to see it.

Thurschwell argues that the rest of the deposition is going to be considered trial testimony, and therefore is covered by the public trial requirement. Thurschwell also argues that because Rule 806 does not specifically address the publicity question, it should be understood in the context of the Sixth Amendment requirement. By his reasoning, if the public trial requirement applies to a suppression hearing, then it should apply to a deposition regardless of whether a deposition is a pretrial proceeding.

Thurschwell is unconvinced by the government’s assertion that objections will not be adjudicated during the deposition--he believe some might be. Further, he argues that it is important for the public to see objections themselves (even if they are not ruled on) in order to determine a witness's’ credibility and “keep the government honest.” That is especially important since the government plans to send al Darbi to Saudi Arabia before the deposition tapes would be seen in court. Thurschwell advances that the government fails to take seriously:

The distinctions amongst the rights granted by Rule 806, the rights granted by the first amendment, the common law right of press access to judicial records — these are three separate things — as opposed to the Sixth Amendment right to a public trial that belongs only to the defendant.

Thurschwell notes that none of the cases they government cites deal with the Sixth Amendment right to a public trial. In each, the defendants waived their right to a public trial in favor of their right to a fair trial, which required limitations on public access to avoid tainting the jury pool. But al Hadi waived his right to a fair trial and invokes his right to a public trial, requiring al Darbi to be deposed in public view.

Thurschwell also notes that there is precedent from the military commissions that remedies the government’s concerns about prejudice. In Mohammad, Judge Pohl wrote

Any potential taint from pretrial publicity caused by the deposition can be explored and remedied by voir dire and proper instruction from the military judge.

Without an explanation for why al Darbi’s deposition differs from the Mohammad case, Thurschwell argues that the court should defer to Judge Pohl’s view. Lastly, he notes that in Nashiri, the deliberations about deposition publicity did not address whether Nashiri had waived his right to a public trial, so the case may not be analogous and Judge Rubin should not consider it in this deliberation.

Thurschwell argues that the most important issue is whether the government’s interests satisfy the test for overriding the defendant’s Sixth Amendment right. He dismisses the asserted interest in avoiding prejudice: al Hadi has waived his right, and the government does not have a right or interest that cannot be overridden by preliminary witness examination. Judge Rubin has no questions about the conclusions regarding prejudice.

Thurschwell then argues that in order to take credibly the government’s argument that the proceeding should be closed to protect against unintentional disclosure of classified information, then the entire proceeding should be closed. Like in the trial proceedings generally, the defense has agreed to several steps to prevent incidental disclosure, including a 40-second delay in streaming, minimization procedures, substitution procedures, and declassification if possible procedures. Thurschwell goes on to argue that classification alone should never be a sufficient reason for military commissions to rule on proceedings. Judge Rubin requests a supplemental written response.

Flynn responds that the Nashiri judge ruled that a deposition is not part of the trial process, and that the defense has still failed to cite a case in which a court ruled that a deposition is part of the process. He argues that it does not matter whether the Sixth Amendment applies or not because there is a statutory right established under the MCA; the court therefore does not need to reach the constitutional question to determine whether there is a right to a public trial, and should refrain from doing so under the constitutional avoidance doctrine. But even if the Sixth Amendment did apply, then the fact that the deposition will become part of a public trial will satisfy their requirements.

Thurschwell responds that the government still has not distinguished between the defendant’s Sixth Amendment right to a public trial, the first amendment right to a public trial (that belongs to someone besides the defendant), the common law principle of public access to judicial documents, and the statutory and regulatory provisions of the MCA and RMC.

He argues that the government misunderstands constitutional avoidance. Thurschwell says that constitutional avoidance applies when a judge rules for a criminal defendant on a statutory or regulatory finding to avoid making a controversial constitutional finding. When a judge rules against a criminal defendant on statutory or regulatory grounds, then the judge must reach the constitutional question. Therefore, if Judge Rubin wants to engage in constitutional avoidance, then he must hold that al Hadi is entitled to a public trial under the MCA.

Last, he argues that Waller says the Sixth Amendment right is equally important in important pretrial proceedings that are immediately relevant to the trial. The government has not presented a case that addresses the Sixth Amendment right and finds the opposite. Commander Flynn disagrees, saying that the government has provided three cases that address the Sixth Amendment.

Can the court compel al Hadi’s presence at the al Darbi deposition?

Lieutenant Commander Spencer offers for the government as to why the commission should grant the motion to compel al Hadi’s presence. First, al Hadi has no right not to be at the deposition. Second, the government believed al Darbi will identify al Hadi through face-to-face identification rather than photographic identification and therefore al Hadi’s presence is necessary. Spencer emphasizes the importance of face-to-face identification to the government’s case given that the defense has challenged whether al Hadi is who the government says he is.

Spencer notes that Judge Rubin’s ruling on 074C says that the judge should consider whether al Hadi’s absence from the deposition will frustrate the progress of the trial when deciding whether to accept the accused’s waiver of his presence. He says that the government would seek to ensure that the commission staff does not assign female guards to move al Hadi to his deposition so that he does waive his presence for that reason.

Judge Rubin asks Spencer whether he has the authority as a military judge to require al Hadi to be present at a non-session. Spencer agrees with a characterization by Judge Rubin that his power arises from his inherent authority as a military judge with broad powers. Judge Rubin also asks for the government’s position on Federal Rule 15, which explicitly allows an accused to waive presence at a deposition. Spencer responds that the public’s interest in a fair trial overrides al Hadi’s statutory right to a waiver.

Captain Fischer speaks for the defense. He argues that the government is asking for reconsideration and thus the standard for that motion should apply. The commission issued the order granting the deposition, and in the order, it stated that the accused would be present unless he chose to waive his presence. Fischer advances that the government, in seeking to change the court’s caveat, is seeking a new ruling, which should carry the standard of reconsideration. A motion for reconsideration carries a standard of clear error, which the defense argues did not occur.

Fischer goes on to argue that RMC 702 and the Federal Rule both address this dilemma, according to RMC 702 the accused shall have the right to be present by counsel in an oral deposition. These rules, Fischer clarifies, exist to protect al Hadi’s constitutional rights, not to protect the government’s interest in having the defendant at trial, as he says the government portrays. Lastly, he cites Wilcox, a district court case that the government had brought up in a previous session. While not binding on the commission, in Wilcox, the court held that a defendant could have legitimate tactical reasons to waive their presence at a pretrial hearing.

Judge Rubin asks Fischer whether the defense believes that the military judge has the power to compel al Hadi to attend the deposition. Fischer says he does believe the judge has that power.

Should the accused be excluded from certain sessions to protect classified information?

Thurschwell first notes that in June 2017, the Supreme Court ruled in Weaver v. Massachusetts that when a defendant’s Sixth Amendment right to attend trial is not satisfied, it is a structural error and not harmless error.

Thurschwell argues that the MCA does not allow the accused to be excluded from a closed hearing on the grounds of classified information. There are specific circumstances under the MCA has when a judge may exclude the accused, but involve classified information. According to the defense argues, no further analysis is necessary and the commission should adhere to the principle of constitutional avoidance because al Hadi is entitled to the relief provided by statute. Only if the judge does not believe the accused is entitled to such relief, should he then address the constitutional question. Thurschwell also notes that in In re Terrorist Bombing, the Second Circuit establishes a four-factor test that essentially requires a sufficiently compelling interest for barring the defendant. Thurschwell argues that even if there are reasons that the defendant should be excluded from some hearings, to be determined on a case-by-case basis, the defense attorneys should only be excluded in very limited cases. Further, he argues that checks on the defendant's ability to use classified information to harm national security is severely limited by his circumstance.

Spencer argues for the government that if the defense wants the attendance question to be judged on an individual basis, then the defense’s oral argument contradicts its motion, which asks for a blanket granting of permission. The government does not seek to prohibit al Hadi from all closed sessions, but opposes the defense’s motion because it wants to retain the ability to exclude the defendant on a case-by-case basis. The government agrees that In re Terrorist Bombing is controlling and its test should be applied. Spencer says that in pretrial contexts or other circumstances where the commission compels the accused to be present, the government would take appropriate steps to make any classified information available to the defendant or counsel, but would in certain cases reserve the ability to remove the defendant to protect information.

Thurschwell notes that while the defense would be open to hearing the government’s concerns about particular circumstances where defense might be excluded, the defense’s view is that the MCA and constitutional provisions are clear about the inclusion of defense.

Defense Access to Expert Assistance without Excessive Notification to the Government

After accepting a request for defense access to secure spaces for attorney-client communications without objection, the proceedings turn to the question of expert assistance and notification.

Thurschwell argues that the requirement that the defense provide a copy of its requests for expert services (that it submits to the Convening Authority) to the government reveals defense strategy and tactics. That understanding arises from an interpretation adopted by the Convening Authority and the government that is not clearly required by the statutory language. Additionally, several regulations, including Sections 949j(a)(1) create requirements and conditions to provide the defense with a reasonable opportunity to obtain witnesses and other evidence, but RMC Section 703(d) creates the requirement for the defense to notify the government. Section 749j(a)(1) goes on to specify that “the opportunity to obtain witnesses and evidence shall be comparable to the opportunity available to a criminal defendant in [an Article III court].” In other military commissions cases, Thurschwell notes, the defense does not send a copy of the application, but a de minimis notice that informs the government that the defense has submitted an ex parte application for resources. Thurschwell highlights that in Wardius v. Oregon the Supreme Court ruled that the fifth amendment due process clause places a limit on nonreciprocal discovery. McWilliams v. Dunn established that defendants are entitled to expert assistance that is independent from the prosecution. The government’s assertion that the notification requirement intends to aid in the government’s ability to switch from its own expert to the defense’s violates the latter requirement.

The government argues that the notification requirement is roughly analogous to that required of defendants under the Rules of Court-Martial. But Thurschwell notes that Congress specified in the MCA Section 949j(a)(1) that the defense in military commissions is entitled to an opportunity to obtain witnesses and evidence comparable to Article III courts, not Courts-Martial. The RCM contain no analogous requirement.

Judge Rubin asks whether the defense’s requests should be met with the exact expert they requested. Thurschwell says yes, and argues that there cannot be a constitutionally-sound substitution mechanism analogous to that from the Courts-Martial system. The convening authority can reject an application for expert assistance and the defense may re-apply. In the first application that the defense submitted under these rules, the convening authority rejected an ex parte application on the basis of government exclusion. Judge Rubin requests an unredacted copy of the order and response and permits it to be submitted ex parte.

Spencer notes that there is a distinction between an expert consultant and an expert witness and that each carries a different standard of employment (governed by sections 702(d) and 702(c), respectively).

The government is willing to make exceptions to the objection to ex parte applications if the defense can make a showing as to why a particular circumstance is unusual. But in the absence of such a showing, the defense’s motion seeks judicial estoppel in objection to the government inconsistently requiring copies of applications.

The defense argues that the government mischaracterizes the relevant regulations and restates its understanding. Judge Rubin asks what standard the defense would expect the court to apply when responding to ex parte applications. Thurschwell says that he believes the federal court standard is appropriate.

Judge Rubin adjourns the session.