Nashiri Motions Hearing #5: Tie Me Up, Tie Me Down Again--And Do It In Public, Please

Judge Pohl then announces that he wants to switch gears and deal with Rule 505 and closure issues now. The government, he asks prosecutor Joanna Baltes, wants an in camera hearing to talk about whether to close a later hearing on the motion to unshackle the defendant in lawyer meetings (AE 026), right? Baltes affirms that this is the case. And the defense, he asks Commander Stephen Reyes, doesn’t even think that hearing needs to be closed, right? Reyes affirms that this is correct. Reyes gets up to speak. His understanding, he says, is that after lunch, the court will go into a closed session to determine whether to go into a closed session. Judge Pohl earlier said that this happens in all other cases, but this--Reyes argues--isn’t every other case. Everyone here--flown down specially--is indication that this case is special.  We have closed circuit television to Fort Meade and Norfolk because of the immense public interest in ensuring that these hearings are kept open as much as possible. In every system of justice in America, he argues, the default is a public hearing. The defendant has that right. The hearing should only be closed if less-restrictive measures will not work. The military commission rules of evidence do not require that the hearing after lunch be closed. That entire hearing can be done in open session. Judge Pohl asks: Didn’t you file a Rule 505 notice that you were going to introduce classified evidence concerning the shackling motion? Reyes affirms that he did. Then how can we discuss that classified evidence in open session? The issue is whether Nashiri will be able to testify, Reyes says. Judge Pohl responds that Nashiri has every right to testify in his case in chief, and his counsel have the right to present relevant evidence on any motion. But nobody has the right to present irrelevant evidence. Isn’t the purpose of this initial hearing to figure out whether his evidence is relevant? Right, Reyes says, but that determination can be made in an unclassified session. How--if you’re going to use classified evidence? The defense motion is unclassified; the government’s response is too, Reyes says. You seem to be wanting it both ways, Judge Pohl says. If you say that all of the evidence is before the commission, then why do you need to introduce other classified evidence? If you want to use classified evidence, do you agree you cannot do that in the open? Reyes agrees. If you want to use classified evidence, Judge Pohl says, the closure must be narrowly tailored, but the hearing must be closed.  That’s the law. Reyes agrees. Do you intend to introduce classified evidence? Yes, Reyes says, but the post-lunch hearing concerns whether Nashiri’s testimony is relevant and necessary.  For that purpose, there is no need to close the court. Will we discuss classified evidence to determine the relevance and necessity of his testimony? I don’t think so, Reyes says. We are on the razor’s edge here, Reyes goes on.  If there’s a need to go to classified evidence, we can close the hearing.  But the default should not be a closed session. Reyes suggests that Judge Pohl should take evidence in open session, and then go to closed session only as necessary. The goal, he says, is to promote transparency. The rule says to take the least restrictive measures. The defense says, Reyes concludes, that this argument about the necessity of Nashiri’s testimony does not need to take place in camera. Baltes speaks very briefly. We are talking about two things here, she says.  The defense is talking about factors under Rule 806 about courtroom closure. We agree that you should consider those. All we’ve asked for in response to the defense request to use classified material is for a Rule 505 proceeding, she says, which are allowed to be held in chambers. It is hard to set the ground rules for the use of classified evidence in an open hearing. That is all the government has asked for. Perhaps the 505 hearing could be bifurcarted. We could do classified evidence in camera and then go on the record and talk about relevance in a way that does not implicate the classified evidence. Judge Pohl says he prefers the other way around--that is, that people are less likely to refer to classified evidence if they’ve talked about the unclassified material first. He asks Reyes: You want to give me unclassified reasons for hearing this material, right?  Reyes affirms that he does. Judge Pohl assents. Trial counsel Mattivi, at this point asks about plans to hear from media lawyer David Schulz--representing several newspapers--and Judge Pohl agrees that Schulz should speak before the parties. Schulz rises and says he is representing ten news organizations whose journalists attend and report on these proceedings. Schulz has submitted a letter on behalf of these clients, and Judge Pohl says he’s read and considered it. He verifies that neither party objects to Schulz being here, and neither does. Shultz thanks Judge Pohl for the opportunity to be heard. While it is a short walk from the gallery to the podium, he says, the public interest is different from that of the parties, and it is protected by First Amendment. Schulz says he is here to present arguments against closure  of proceedings on the shackling motion, which may include testimony by the defendant.  There will be a classified evidence (Rule 505) hearing, and our position is that the First Amendment constrains the ability to closes the proceedings, he says. Judge Pohl asks whether he’s addressing closure of the motion itself or whether he’s talking about the 505 hearing. Schulz says that he certainly does not dispute the propriety of holding a closed hearing about whether closure should happen, but with one caveat. The same standards, he says, apply to all proceedings; to the extent that the initial hearing concludes that there is nothing there warranting closure, then a redacted transcript of that hearing should be made public. There is a public interest in understanding the court’s reasoning. Schulz says he wants to make three points: concerning the constitutional right to attend and observe proceedings, concerning standards for when these proceedings can be closed, and concerning how those standards might apply to issues likely to arise. First, Martins, he notes, has been travelling around making speeches--to the ABA, at Harvard Law School, and at the New York City Bar--explaining how reformed commissions have a role to play in guaranteeing the rule of law. Public confidence in that is best satisfied, he says, when the public can attend. Criminal prosecutions are subject to the First Amendment right of the public to attend, a right which is enforceable. Military appellate tribunals have applied access rights to Article 32 court martial proceedings. History and policy support this position, he says. Military tribunals have been done in public since their dawn. The commissions after the Lincoln assassination, as well as the Yamashita trial, the Nuremberg trials, and the Dachau tribunal were all public. All of the policy reasons given by Supreme Court to allow public access rights apply here. One factor is where a public presence advances the purpose of the tribunal, and public access puts people on good behavior, prevents abuse, and minimizes perjury. The defense and prosecution both agree on that point, he notes. Second, the standard Supreme Court cases articulate specific tests for a judge to apply in deciding whether to close a courtroom. The key was some substantial probability of injury to some equally compelling right. These are typically the rights of the defendant. By contrast, here, the primary concern is with national security issues and with the safety of individuals.  But the same constitutional standard applies to the determination of those issues, says Schulz. In other words, to close the hearing, the court must make a finding of some substantial probability of injury to a person or to national security. Judge Pohl breaks in here. Does the statute say “substantial probability” or “reasonably to be expected,” he asks? Schulz acknowledges that the statute offers a lesser standard. But he says that the media’s position is that the Constitution requires a higher standard than does the MCA. The Press Enterprises case in the Supreme Court supports that view, he argues. The high court rejected a lower standard in that case. And the standard here should be the Supreme Court’s standard: Has the government made showing of some substantial probability of a risk to national security interest if the proceeding takes place in open court? If the standard is met, Schulz argues, and closure is thus going to happen, the question becomes what alternatives might be available that respect First Amendment rights--for example, excluding certain evidence. If not, then the court must consider whether the order requested is as narrow as possible as to scope and time. Perhaps the court can suppress certain facts, instead of closing the whole hearing, he suggests, or maybe transcripts can be released later, or redacted transcripts released as soon as practicable. The constitutional standard is the same, Schulz says, even if information is classified. The MCA standard does not say that a hearing should be closed if classified, but closed if the court determines that there is a national security threat. This is an important point for Schulz: classified does not mean closed. We know this, he says, from civilian settings. For example, in the Fourth Circuit case of In Re Washington Post, he says, the question was how to deal with classified evidence in a civilian criminal case. The Fourth Circuit said it was troubled by the possibility of endangering lives, but it was also troubled by the idea of judges’ abdicating their responsibility to review the executive when national security concerns are present. There is a great deal of information known about what Nashiri would testify about, though it may still be considered classified, he says. For example, the inspector general’s report talks about his waterboarding and his being threatened with a drill. It is impossible reasonably to conclude here that national security would be threatened by public discussion of publicly available facts, Schulz argues. Should the judge determine that closure is warranted, however, it should be as limited as possible, Schulz goes on. He emphasizes that the 40-second delay in the transmission of proceedings, and the availability of the white noise button, both of which serve to withhold sensitive information, should be considered a less restrictive alternative to closure. Even watching the proceeding without sound can be helpful to the public. Judge Pohl seems unconvinced on this point. These protections are there for situations where classified information suddenly comes up, he says. That’s a different problem than closure is meant to address. He says he’s not sure they would necessarily suffice to replace a closure. Schulz pushes on: there is technology available to use that button in place of outright closure, and that is preferable. Judge Pohl thanks Schulz and he stands aside. Judge Pohl has a brainstorm for how to avoid this whole sideshow. He turns to talk to defense counsel Kammen about the shackling motion. Your motion, he says, asks that the JTF-GTMO commander allow your client to meet with counsel without shackles in any manner. If I say “granted,” would that be moot? Is there an alternate process on the table that allows for an unshackled meeting? Not one that’s satisfactory, Kammen answers. We’ve been asking for a setting where we can have contact and see him unshackled. The non-shackling option on the table does not allow for contact. But the issue of re-traumatization of Nashiri, which is what the classified evidence pertains to, relates to shackles, Judge Pohl says. So if you have a non-shackling option to meet with him, I am not saying you have to take it, but doesn’t it moot your motion concerning re-traumatization? It does, Kammen responds carefully, but here’s what will happen: JTF-GTMO will impose more restrictive procedures. Mattivi here interjects, cautioning against going down a road of classified information. Schulz, he notes, is still in the room. Judge Pohl asks Schulz to leave--noting that it’s nothing personal. Kammen says he appreciates Mattivi’s intervention, explaining that the circumstances under which the defense meets with Nashiri are classified. Judge Pohl then returns to his theme: Reading the briefs, which I assume to be not classified, he says, there are two options for meetings. One involves shackling. The other involves a separation between Nashiri and counsel, in which he wears no shackles but cannot directly contact counsel. Kammen responds that he doesn’t know what the latter option looks like, where it would take place, and the like. But assuming you have a non-shackle option, Judge Pohl pushes, does that not moot the re-traumatization issue of your brief, though it may raise other attorney-client interaction issues? The whole purpose of the motion, Kammen responds, is to facilitate contact. We shouldn’t have to choose between bad access and re-traumatization. You are forcing us into a position that’s not fair, in which we must compromise some of Nashiri’s rights to protect other rights. Judge Pohl says he is not asking Kammen to compromise any of Nashiri’s rights. The issue about shackling, however, is tied in with the previous treatment of Nashiri. Because of that, and because of his resulting mental state, shackling allegedly causes a re-traumatization, and the defense has therefore asks for unshackled attorney visits. Unshackled contact visits, Kammen insists. You just added that adjective, Judge Pohl replies. If the issue is re-traumatization because of shackling, is that not mooted by a non-shackling option, understanding that the non-shackling option may be unacceptable on a different basis unconnected to re-traumatization? Kammen is not giving the judge the answer he wants. It forces us choose. Here’s how it works out: With JTF-GTMO, the defense files a motion, and then Nashiri is punished for it. So if you say “granted,” they’re not going to say, ok, let’s give it non-shackling a chance. JTF will take any option that severely interferes with our relationship in some other way. So, in effect, he is punished--our relationship is punished--for trying to assert his rights. In federal court, the granting of a motion means that the marshals will give the defense a chance.  Here they won’t. They absolutely will not. Judge Pohl is still trying to figure out what standard to apply. He cannot say: Warden, here’s how you to run your prison. He’s not in a position to do that, he says. Kammen replies that he isn’t asking the court to enter the detention business. He is merely asking to meet with his client in such a way that, given the facts and circumstances, his physical needs can be easily accommodated without presenting any risk of harm to anyone or the risk of escape. Judge Pohl is skeptical. You want me to say that, he asks, that because the defense is willing to assume the risks, that it is acceptable? From a third-party perspective, there is certainly a risk of misbehavior. And yet, Judge Pohl says, you are saying: Put us in a room and close the door. That is what happens every day in jails all over the country, Kammen says. The business of detention is still on Judge Pohl’s mind. Why, he asks, should I substitute my judgment for that of JTF-GTMO? The answer, Kammen says, is that this is your case; Al-Nashiri is your accused; and it is his right to the effective assistance of counsel. And again, in this situation, there are no risks of the kind a warden would, or the JTF-GTMO should, be concerned about. That’s your opinion, Judge Pohl says. But what about the risk of violence, he presses, even if there is no risk of flight? Different sets of lawyers representing different defendants are in different situations, Kammen responds. He is asking Judge Pohl to assert jurisdiction over this defendant in this case. If other defendants come before other courts, then their cases may be assessed on their facts.  The exchange seems to calm Judge Pohl a bit, so he returns to his practical dilemma, and his initial question: If there is no shackling, as there would not be in the prosecution’s “non-contact” alternative, then would that not address the re-traumatization and other concerns you have?  He emphasizes that he does not want to make Kammen choose between unattractive options. Well, says Kammen, you are doing that; let’s be honest about that. Judge Pohl shoots back: You’ve asked me to unshackle Al-Nashiri because that causes him to experience re-traumatization. And as I said, that request can be granted. But I’m not in the detention business. Should the prosecution’s alternative approach prove to be to otherwise improper--that is, should it raise problems other than re-traumatization--you can raise it later.  But re-traumatization is the issue before the court, and that seems to be resolved by the government’s proposal. He adds that, in the event of non-compliance by JTF-GTMO, then Judge Pohl may only be able to tell them to do what they are supposed to do. The camp and the court are separate; there is no unity of effort. Kammen jumps into emphasize just how little he has asked for. The relief we seek is only a no-shackles policy and continued visits with physical contact allowed, he says. The defense, he says, dislikes the governemnt’s proposal because it may lead to more restrictions on Al-Nashiri. Why not handle this simply? Kammen proposes that JTF-GTMO purchase a simple, $5 dollar lock for client meetings with Al-Nashiri--or, he says, a $100 lock, given that we are talking about Guantanamo. Judge Pohl isn’t following him. What probablem would a lock solve?  They could lock the door. Then, in the meeting room, if something happened, security officers could come and unlock the door. The room is monitored by video, Kammen says, though not by audio.  There’s no real risk: At no time is the accused meeting with counsel one-on-one. Al-Nashiri is always there with Mr. Barnes, whom he describes as “a strapping young man.” A lock would do the trick, he says. And with that, Kammen concludes. Judge Pohl confirms that the prosecution does not oppose the defense’s motion, given its proposal.  Is that right? Yes, answers Mattivi, but he wishes to address the defense’s suggestion that JTF-GTMO has punished the accused because his attorneys have filed motions on his behalf. That’s wrong, according to the prosecutor: JTF-GTMO is addressing the issues that the accused has raised. Then he complains that we’re punishing him. In short, Mattivi says, the accused gets “yes” for an answer, and then he moves the goal post. The defense’s access to counsel here is not “bad access.” The access procedures the government is proposing are equivalent to those used by the Bureau of Prisons in federal proceedings. Judge Pohl interrupts him. What about mail issue--the one raised in the defense’s other motion? We thought that was resolved, and then we learned that there were still problems. Was that punishing the defendant, or was it some sort of mistake? Mattivi says that the incident--which goes undescribed--was a 20 or 40 minute misunderstanding only, and was corrected almost as soon as the prosecution discovered it. It was not any kind of punishment. The two sides then agree that this resolution of this issue also moots a separate question--of Nashiri’s being shuttled back and forth between the detention facility and the court-room every day. But then Kammen wants to respond to Mattivi’s point about punishment. Since arraignment, he says, when we would meet here, we were allowed to meet in a room with two locks on the door. We would be allowed to be double-locked in his room, and Nashiri would be unshackled. That was changed because we pointed this out in connection with our visits elsewhere. So what happens? He gets punished for us pointing out what was going on.  Their idea of fixing a problem is that things become more restrictive, not less. This has an impact on our relationship and our ability to prepare for trial.  This is not like a court where the jail is across the street. We need to use blocks of time effectively, and we’re trying to do that under circumstances where there is no risk of escape or harm. Judge Pohl says he will not interfere with how JTF-GTMO runs its detention facility. But, he says, if changes are made to the accused’s detention in apparent response to motions in court, that’s a concern that will provoke scrutiny.  The defense motion, he says, is granted, with the understanding that some non-contact room will be provided and that the defense may renew its motion if it has a problem with this arrangement on some other basis. Regarding shackling during attendance, the government has said many times said that its methods are necessary. But when there is a change--for example, shackling where prior to the change the defendant was unshackled--that gives the appearance of punishment, the government may have two options: to show cause of the need for the change or to revert to earlier policy. In response to a request from Mattivi, Judge Pohl clarifies: Concerning what happens out in the camp, I will defer to commander absent some reason not to defer. In this courtroom, however, I don’t defer to anybody--except appellate courts. The same analysis applies with respect to the cell adjacent to this courtroom. Because the practice has been to have him unshackled, that practice should be remain practice unless you show cause to change it Kammen jumps in to say that the only additional thing he is seeking is that the defense gets the same order for its meetings with the accused in the camp. And if that is a problem for JTF, let them come to court and explain why. Judge Pohl responds: Now you’re penalizing me for ruling in your favor, he jokes. And the proceedings break for lunch.