This Week at the Military Commissions, 11/7: Pretrial Proceedings Continue (Part II)

Military commission proceedings in United States v. al-Nashiri continued Nov. 7 with military judge Col. Vance Spath presiding. Judge Advocate General Lt. Alaric Piette remains the sole counsel for the defense present.

In the morning, before going into closed session for the pretrial deposition of Guantánamo Bay detainee Ahmed al-Darbi, the judge explained for the record a series of communications that took place over the prior weekend related to the absence of assigned civilian death penalty learned counsel Rick Kammen and colleagues Mary Spears and Rosa Eliades. Spath described his own efforts to ensure the defense team received the attorneys, witnesses, and other resources necessary to defend al-Nashiri, and called out the absent defense attorneys for essentially abandoning their client. He indicated his intention to issue findings in the matter, responsive to the defense’s request for an abatement of proceedings, in the coming week. At this point, Spath said, his view is that the defense team “has significant resources that they have chosen not to bring to court . . . and it certainly seems like it is voluntary, intentional, and a strategy.”

The court will continue to support efforts to bring in additional military and civilian defense attorneys, and meanwhile will move forward in “noncapital matters” that Spath believes Lt. Piette is fully qualified to handle on his own. Lead prosecutor Mark Miller also noted that, at the direction of the court, the government would try to arrange for Ellen Yaroshefsky and Emily Olson-Gault to give testimony via video teleconference Nov. 13 regarding the absence of learned death penalty counsel Rick Kammen. (Lawyers for Yaroshefsky subsequently filed a preemptive habeas petition in the U.S. district court in Manhattan to block the government from sending U.S. marshals to forcibly compel her to appear.)

The commission returned to open session for the afternoon, receiving testimony via video teleconference from former Naval Criminal Investigative Service (NCIS) agent Robert McFadden. McFadden, like FBI special agent Stephen Gaudin the week before, was called in response to the defense’s motion to suppress co-conspirator statements that inculpated al-Nashiri and were allegedly tainted by information obtained through torture.

Questioned by Miller, McFadden recounted his history with NCIS and described his involvement in the investigation into the USS Cole bombing as a case agent from 2000 to 2002. Miller then jumped ahead to 2007, when McFadden participated in the interviews at Guantánamo of Walid bin Attash, aka Khallad, and al-Nashiri. Mirroring Gaudin’s Nov. 3 testimony, McFadden explained the purpose, number, and sequence of the interviews with the two detainees, confirmed that they were advised of their rights after every break in questioning, and corroborated the content of discussions about the preparation for and execution of the attack on the Cole. To rebut the defense’s allegations of taint, Miller asked McFadden whether he had relied on statements that al-Nashiri made before his transfer to Guantánamo in his questioning of Khallad and al-Nashiri. McFadden said he had not, but clarified that in his role as case agent for the Cole investigation, he had followed intelligence reporting coming out related to that attack and al-Qaida operations more generally. The prosecutor then repeated the series of questions, this time in relation to the Nov. 2007 interviewing in Yemen of convicted co-conspirator Jamal al-Badawi. Badawi directly incriminated al-Nashiri, who used the alias “Bilal,” in his account of the planning for the attack and also positively identified al-Nashiri in a photograph that agents showed him. Miller concluded his examination of McFadden by confirming that the written report of the Badawi interview accurately reflected the agent’s recollection of events. Lt. Piette declined to ask McFadden any questions due to the absence of learned counsel, which Spath characterized as waiving the right to cross-examine McFadden.

After excusing McFadden, the judge returned to the issue of Piette’s ability to participate in pretrial depositions and evidentiary preclearance hearings. Miller reminded the court that Piette had regularly spoken on behalf of al-Nashiri, thereby demonstrating his competence and confidence to do so, in earlier stages of pretrial proceedings. There was therefore no reason why he could not have cross-examined al-Darbi in the deposition earlier in the day. Piette countered that current absence of learned counsel makes a profound difference because “everything in a capital case relates to the capital issues.” The risk of Piette proceeding alone was particularly high given that the government views al-Darbi as a critical prosecution witness “meaning that they believe that his testimony was directly relevant to the possible conviction . . . [and] execution of Mr. al-Nashiri.”

Bringing the discussion to a temporary close, Spath gave his opinion that the defense should have been in a good position to cross-examine al-Darbi after months of delay, and that the civilian defense attorneys’ refusal to appear in the courtroom suggested a deliberate strategy to derail the proceedings. He then put the commission in recess until the morning, when questioning of witnesses related to Appellate Exhibit 207—real evidence from the scene of the Cole attack—would begin.