Proceedings Resume in United States v. al-Nashiri

Last week at the Guantanamo military commissions, proceedings resumed in the case of alleged USS Cole bomber Abd al-Rahim al-Nashiri. Air Force Col. Vance Spath was dual-hatted for the week as both judge for regular pre-trial-motion practice and deposition officer for the deposition of Ahmed al-Darbi, another Guantanamo detainee slated to provide testimony in al-Nashiri pursuant to a pre-trial agreement with the government. Most of the week’s proceedings, including the deposition of al-Darbi, were held in classified or otherwise closed sessions, but the court addressed a number of administrative and logistical matters in open sessions on July 31, Aug. 2 and Aug. 4. In a money-saving shift for the court, the open sessions were not transmitted by secure video to stateside locations.

Defendant’s Presence in Court

Judge Spath kicked off the Monday morning session by announcing that everyone besides al-Nashiri (excepted for security reasons) would be permitted to have coffee in the courtroom. Turning to the proceedings at hand, Judge Spath emphasized al-Nashiri’s right to be present at all hearings and the requirement that any absence on the part of the defendant be accompanied by an unequivocal waiver of that right. All parties agreed that the judge should reiterate the right and waiver requirement before commencing al-Darbi’s deposition the next day.

Issues Related to the Deposition of al-Darbi

The direct examination of al-Darbi consumed the bulk of the week and gave rise to a number of discussions in 802 conferences and open session. On Monday morning, before the deposition began, Judge Spath explained his role for the week as deposition officer and how that role differed from that of a judge. He explained that, as the deposition officer, he would rule only on objections to the form of questions and issues of privileged material; any substantive objections lodged by the prosecution and defense teams he would annotate for the record but not rule on. Defense counselor Richard Kammen objected to Judge Spath’s decision to hold the deposition entirely in closed session, expressing concern about the lack of public access to unclassified portions of the proceedings. In response, Judge Spath noted that the transcript of the deposition would be entered as an appellate exhibition and eventually published.

Next, Judge Spath clarified that al-Darbi’s deposition was being conducted pursuant to a pre-trial agreement with the government, in order to preserve his testimony in case he was no longer physically available (i.e., had been repatriated to Saudi Arabia) at the time of trial. The deposition was not intended as a vehicle for discovery beyond that which would be required for the defense to adequately cross-examine the witness. Additionally, while al-Darbi’s defense team would be present for the deposition, it would not be allowed to intervene in the questioning except to assert privilege. The team would, however, be allowed to speak with the client out of session. Kammen also raised the issue of the defense team being denied the opportunity to interview al-Darbi ahead of the deposition, prompting Judge Spath to indicate that he would likely allow broader cross-examination in the interest of fairness.

In the Monday morning and afternoon sessions, the parties debated the plan for videotaping the deposition. The prosecution team wanted one camera focused on the deponent and one on the defense table, to capture “any evidence created during the deposition by the accused.” The defense team objected, preferring that the cameras focus either on the deponent or the courtroom as a whole, rather than on al-Nashiri. Any reactions by al-Nashiri would be visible to the prosecution and could be attested to at trial, without need for video proof. The prosecution cited the Abu Ali case as precedent for having a camera trained on the accused, but Judge Spath found it distinguishable because the goal in that case was to enable the deposition of an individual residing overseas in a manner consistent with the Confrontation Clause, rather than to capture the dynamics of a pre-trial deposition at which both the accused and the witness are present. Furthermore, the Abu Ali case provided an example of how a witness deposition could be conducted remotely, suggesting that al-Darbi could be deposed again for trial even from Saudi Arabia. The prosecution’s concerns about the future admissibility of evidence as to al-Nashiri’s behavior during the current deposition were therefore likely unwarranted.

At the end of the week, Judge Spath asked for an update on remaining discovery related to al-Darbi’s deposition and other outstanding issues heading into cross-examination during the September session. Earlier in the week, after the prosecution alerted the judge and defense counsel to additional Jencks material the government was producing, the defense conveyed discontent with the pace of discovery and informed Judge Spath that it had received 300 additional hours of relevant audio recordings only the week before, even though the material had been ordered due by April. Any further delays, Kammen said, would strain the defense’s ability to process everything and adequately prepare for cross-examination. On Friday, the prosecution summarized its recurring discovery obligations and its expected production timeline: relevant and material behavioral health records for al-Darbi through March 2017 had been turned over, and additional records through July would soon be produced for in-camera review; medical records through July 2017 had been submitted for executive-branch review and subsequent production to the defense; all relevant Detainee Information Management System records had been produced; logs of incentive items provided to al-Darbi were current through mid-July and additional entries were undergoing executive-branch review; and forthcoming would be an updated list of al-Darbi’s video calls, mail and other communications received, visitor logs (including notes and summaries of FBI interviews with al-Darbi), and additional PowerPoint and audio material. Kammen requested clarification as to the volume of classified materials slated for production pursuant to the defense’s filings; the prosecution estimated approximately 1,000 pages.

Judge Spath then turned to a filing by al-Darbi’s counsel claiming broad psychotherapist-client privilege under Military Commission Rule of Evidence (M.C.R.E.) 513 for certain records sought by al-Nashiri’s defense team. Judge Spath assured al-Darbi’s counsel that he believed in a robust privilege for mental health records, especially post-Klemick, and had determined after review of the requested records that only a very small number of documents were releasable to al-Nashiri’s team. Specifically, Judge Spath identified for possible release a handful of documents that would assist al-Nashiri’s team during cross-examination in showing bias. To potentially obviate the need to litigate about the scope of Rule 513 privilege, al-Darbi’s counsel suggested that Judge Spath give them the records he thought were releasable so that they could confer with al-Darbi before deciding whether to allow or contest the release. All parties agreed to this course of action, though the government stipulated that it nevertheless maintained the position that Rule 513 privilege may not apply to detainee health records.

General Discovery Issues

Over the course of the week, Judge Spath took up a number of other discovery and witness-availability matters. On Monday afternoon, he addressed a defense motion to compel discovery related to a series of government filings involving hearsay statements, including appellate exhibits 166, 319 and 327. The motion to compel implicated FBI interview summaries (Form 302s) that the prosecution says were redacted for reasons of relevancy and privilege, as well as witness testimony withheld for reasons of relevance and materiality. Judge Spath also discussed the path forward on deciding the admissibility of statements, including those of convicted co-conspirator Jamal al-Badawi, marred by reports of torture by the Yemeni government. Judge Spath felt that the question of admissibility and relevance of the exhibits in question was not yet ripe for a ruling but said that when a decision became necessary he would consider three factors: totality of circumstances, the interests of justice, and whether or not the statements were obtained through torture. Defense counsel argued that if the military commissions were truly to be a torture-free zone, it was not sufficient that statements al-Nashiri made under duress were removed from the record; witness statements obtained under similar circumstances also needed to be thrown out. The prosecution, in response, advocated for a temporal limitation on that principle, arguing that statements given sufficiently later in time from abusive behavior should still be admissible. Resolution of the dispute was left for another day.

The prosecution informed Judge Spath and the defense on Wednesday that four witnesses scheduled to provide testimony on the 354 series and 377 series of appellate exhibits would be unavailable during the September session due to their involvement in contemporaneous civil proceedings in the Eastern District of Washington. Their appearance was consequently pushed to the November session. The prosecution also provided to Judge Spath an updated list of desired substitutions for classified material, flagging for priority review those items expected to be most relevant to the defense in examining the four witnesses.

Logistics and Scheduling

On Wednesday, Judge Spath addressed the abatement order that had delayed proceedings and explained his reasons for first imposing the order and then conditionally lifting it. The original cause for abatement was a dispute over judicial sequestration arising out of the transportation arranged for the judge and judiciary staff to and from the Guantanamo Bay facility: Judge Spath, as well as Army Col. James Pohl, the presiding judge of the 9/11 trial, objected to sharing the same boat across the bay as the prosecution and defense teams, victims’ families, and reporters. Judge Spath stressed that his desire for segregation reflected a legitimate concern for the integrity of the proceedings and the need to limit informal interactions between the judiciary and the parties; he was not just being a “prima donna.” He told the prosecution that he had accepted the new travel plan—the judiciary would travel across the bay by separate U-boat and its communications regarding travel would be limited to reporting times and the like—and would continue the proceedings as long as, and only as long as, they stuck. Judge Spath also took the opportunity to call for greater civility both in filings with the court and in commentary during the hearings, saying that he understood tempers could flare in the close quarters of the Guantanamo facility but nevertheless still expected the parties to maintain a certain level of decorum.

In the concluding session on Friday afternoon, Judge Spath previewed the September session. Assuming sufficient production of discovery material to allow the defense to prepare, Judge Spath envisioned cross-examination of al-Darbi would take up the first part of the session, possibly followed by a short redirect by the prosecution, and matters related to AE 207 would consume the remainder of the time. Reiterating discussion from earlier in the week, Judge Spath confirmed the slating of the four AE 377 witnesses for the November session. And with that, the court went into recess.