Preview – Motions Hearing in United States v. Al-Nashiri

Judging by the docket, we are in for a lengthy motions hearing starting tomorrow morning in United States v. Abd al-Rahim Hussein Mohammed Abdu Al-Nashiri — the capital military commission case alleging Al-Nashiri’s participation in attacks on the U.S.S. Cole and two other vessels.  The upcoming commission session will take place at Guantanamo.  But, as per usual, the proceedings also will be broadcast by CCTV to a viewing facility located at Fort Meade, in Maryland.  Because no fewer than 22 motions and maybe a few more will be under discussion, we can expect the hearing to take up much, if not all, of the three allotted days of the court’s time.  According to an order issued by Judge James Pohl last Month, the following motions will be considered during the session.  These motions, which are referred to below by their commission filing designation (“AE”) include:

1.  AE 026, Renewed Defense Motion for the Defendant to be Unrestrained During Legal Meetings; 2.  AE 038, Defense Motion to Compel the Timely Translation of Discovery into Arabic for the Accused to Read; 3.  AE 040, Defense Motion to Compel the Funding of a Yemeni Defense Investigator; 4.  AE041, Defense Emergency Motion to Allow for the Delivery of Legal Mail to the Accused; 5.  AE 042, Defense Motion to Extend the Time in which the Defense May Submit In Camera, Ex Parte Showing of Defenses and Mitigation Pursuant to MCRE 505 and to Delay Approval of the Prosecution's Proposed 505 Substitutions; 6.  AE 043, Defense Motion on the Constitutionality of the Bar on the Accused's Right to Seek Reconsideration of a Military Judge's Ruling on Classified Substitutions; 7.  AE 044, Defense Motion to Compel the Government to Produce Unredacted Version of the Classified Discovery; 8.  AE 045, Government Motion for a Scheduling Order; 9.  AE 046, Defense Motion to Dismiss for Lack of Personal Jurisdiction because the Military Commissions Act Violates the Equal Protection Component of the Due Process Clause; 10.  AE 047, Defense Motion to Dismiss for Lack of Personal Jurisdiction because Limiting Personal Jurisdiction to Aliens Violates the Define and Punish Clause; 11.  AE 048, Defense Motion to Dismiss for Lack of Jurisdiction over the Charge of Conspiracy; 12.  AE 049, Defense Motion to Dismiss for Lack of Jurisdiction over the Charge of Terrorism; 13.  AE 050, Defense Motion to Dismiss Conspiracy as a Violation of the Ex Post Facto Clause; 14.  AE 051, Defense Motion to Dismiss Terrorism as a Violation of the Ex Post Facto Clause; 15.  AE 052, Defense Motion to Dismiss all Charges because the Military Commissions Act is an Unconstitutional Bill of Attainder; 16.  AE 053, Defense Motion for Discovery of General Information About the Amount of Resources Expended by the Prosecution or Related Agencies Prior to Referral; 17.  AE 054, Defense Classified Motion; 18.  AE 055, Defense Classified Motion; 19.  AE 056, Government Motion for Oral Depositions Pursuant to Rule for Military Commissions 702; 20.  AE 057, Defense Motion for Discovery of Information in the Possession of the Yemeni Government Related to the Investigation of the USS Cole Bombing; 21.  AE 058, Government Motion for a Ruling that the Military Commissions Act of 2009 does not Violate Equal Protection; 22.  AE 059, Government Motion for the Commission to Review Mr. Paradis' Representation of the Accused in this Case.

These motions—at least those that have been released publicly—are available here on the Nashiri docket entry.  The above list, however, does not include seven more recently-filed items, which post-date Judge Pohl’s order but which also could come up in oral argument (and which also can be found at the docket entry). The additional papers include:

1.   AE 067, Government Motion for an In Camera Hearing to Identify and Minimize the Amount of Closure of Proceedings Compelled by Defense Motion AE 062; 2.  AE 057C, Defense Motion to Supplement its Reply to Add a Draft Letter Rogatory; 3.  AE 062, Defense Motion for Mr. Al-Nashiri to be Continuously Held at the Expeditionary Legal Center for the Duration of the Hearings on 11-12 April; 4.  AE 064, Government Motion to Compel Disclosure of the Accused’s Mental-Health Information in Light of the Defense Having Placed His Mental Health at Issue in its Request for the Accused to be Unrestrained During Attorney-Client Meetings; 5.  AE 063, Defense Notice Pursuant to M.C.R.E 505 to Disclose Classified Information at April 11-13 Hearing Relating to AE 062; 6.  AE 061, Defense Motion for an Extension to File a Reply to the Government’s Response to AE 054; and 7.  AE 060, Government Motion for Hearing to Identify and Minimize Amount of Closure of Proceedings Compelled by Defense Motion AE 026.

Not all of the forgoing materials have been publicly released.  Some, like the Defendant’s “classified motions” above – along with any classified responses by the Government and classified reply briefs from the Defendant – have been withheld on national security grounds.  Other filings – those containing some sensitive information but not wholly classified – are still ongoing a security review, and, though they are not available now, may become so shortly.  (According to commission rules, if a security review determines that a court document can be disclosed, then the document will be made available to the public fifteen business days after the document’s filing with the court.  Certain of the most recent filings thus are subject to a lag that has precluded us from eyeballing them before this week’s hearing.)   Still other filings have passed a security review and been posted on the commissions’ website, even though their counterparts – responses by the motion’s opponent, for example, and any replies – have not. We thus have only a partial universe of the written filings that will be under discussion in this week’s hearings.  From this incomplete group, however, we will preview in a few subsequent posts today some of the most significant motions.  Key issues will be whether and what parts of the hearing must be closed, in light of possible testimony by Al-Nashiri that might reveal allegedly sensitive information; and whether certain charges against him may lawfully go forward.