This Week at the Military Commissions, 12/13 Session: Dismiss the Case?

Tuesday’s hearing begins with a motion by Richard Kammen, acting for the defense, to recall yesterday’s witness Colonel Edward Sheeran for further testimony. The defense discovered last night that, as of October 2016, Sheeran was the acting legal advisor in Nashiri, and may still be. Given this new information, Kammen has further questions for Sheeran that he’d like “fleshed out.”

For the government, Navy Lieutenant Paul Morris suggests that there’s no need to bring Sheeran back to testify; the defense has as much information now regarding his role as legal advisor as they will if they bring him back to the stand. He lays out a preview of the defense team’s argument for them: they may try to argue that Sheeran should have been disqualified from working on the case as a legal advisor under military judge Air Force Colonel Richard Spath’s order of last year disqualifying several other legal advisors from Nashiri.

Judge Spath says that he isn’t concerned by Sheeran’s having worked on the case; after all, Sheeran wasn’t disqualified by the judge’s original order, and the order didn’t require the Office of the Convening Authority (OCA) to come forward and suggest further staff members who might also be disqualified. Nevertheless, he agrees to allow Sheeran to return to testify later in the week.

For the defense, Navy Lieutenant Commander Jennifer Pollio argues that this new development regarding Sheeran points to “the problem that the lack of discovery in this case causes.” The defense is routinely denied discovery (in this case, information on the identity of the legal advisors assigned to the case by the OCA), which creates problems for witness testimony: “We then fight tooth and nail to get a witness, and we can't do a proper examination of the witness because we don't have the discovery that would allow us to cross-examine.”

Morris disagrees. The problem isn’t that the defense is being denied information, he says; it’s that they’re looking for information that isn’t there. The defense team wants a “smoking gun” proving that the legal advisors disqualified from Nashiri by Judge Spath exerted unlawful influence over the new legal advisors assigned to the case.

Judge Spath seems sympathetic to Morris’s argument. “I'm trying to find evidence of unlawful influence, he says, “the who is being influenced unlawfully, and the what.” He denies a defense request for further discovery on the issue, but says he’s open to allowing discovery if future witness testimony suggests there may be something to this search for a smoking gun.

The court heads into a short recess. When it returns, we learn that the video feed at Fort Meade hasn’t been working all morning. Kammen is irritated about the lack of transparency, but Mark Miller suggests for the government that interested parties can just read the transcripts.

Pollio gets to the meat of today’s session with a defense motion for discovery on Muhsin al-Fadhli, a Kuwaiti linked to the attack on the French oil tanker MV Limburg who was killed in a U.S. drone strike in July 2015. If the defense can show that Fadhli masterminded the attack on the MV Limburg and that the bombing wasn’t primarily the work of Nashiri, this would be potentially exculpatory evidence.

The government has provided the defense with 20 or 30 pages of discovery on Fadhli, but Pollio says there surely must be more: given that the U.S. government appears to have targeted Fadhli for assassination, there must exist a heftier packet of information on Fadhli’s activity and his involvement with the Limburg. “There must be a robust package of information in order for the United States Government to kill somebody rather than to bring him to face charges in court,” she says. And if there’s not, well, “then this drone striking of Muhsin Al-Fadhli was probably illegal.”

Pollio clarifies that the defense has filed this motion as a Brady violation, arguing that the government’s suppression of this evidence is a violation of Nashiri’s due process. To remedy the violation, she’s asking the judge to dismiss the case entirely.

“We understand that this is a drastic remedy,” Pollio adds.

Unsurprisingly, Judge Spath seems dubious. He believes that Pollio is jumping the gun, to put it mildly: the case is still in pretrial hearings and is nowhere near the point where dismissal is an appropriate remedy. “You didn’t ask for witnesses here.”

“Quite frankly, sir,” says Pollio, “a lot of the witnesses are dead.”

The judge points out that the defense could have called government witnesses. But Pollio is unfazed, and goes on to argue that though the case is still years out from trial, the government’s refusal to provide the defense with information on Fadhli affects the entire case. As far as remedies go, she would also like the judge to reexamine the process by which the defense can submit requests and receive discovery from the government. “I understand that the prosecution may not have those files on their desk, but they represent the government … that is trying to kill Mr. Nashiri.”

For the government, Navy Lieutenant Jonathan Cantil argues that dismissal would be “drastic and unwarranted.” There’s no Brady violation as far as he can see. He gets drawn into a long discussion with Judge Spath over what information the government has provided to the defense on Fadhli and what information has been left undisclosed, hedging on whether or not the government intentionally targeted Fadhli with the airstrike and whether Fadhli would have been targeted solely for his role in the Limburg bombing or for his other activities as well. Fadhli was a leader of the Khorasan Group and had ties to Abu Musab al Zarqawi—factors that could have led to his targeting that were unrelated to the Limburg, and about which the government would have no obligation to provide the defense information.

The judge wants to figure out whether or not the prosecution is hearing back from various government agencies in response to the defense’s requests for information on Fadhli. Cantil assures him that they are: “the process is working.” In response, Judge Spath emphasizes the importance of ensuring the public and the defense have “faith in the process.” It’s crucial, in other words, for the defense to believe that the process is working:

That information that is responsive to the PSR [prudential search requests filed by the defense] but not necessarily discoverable is getting to you, and then the discoverable information is getting to them [the defense], but they know that there is a body of information that's not getting to them so they can take advantage of the discovery process through the commission … In a court process it is helpful when the other side knows you have information you are not disclosing, and that way they can come to me and say will you get involved? And that answer will change. Sometimes yes, sometimes no.

The judge pushes Cantil to tell the court more about the universe of information that exists on Fadhli. “How many pages do you have?” he asks.

Cantial suggests that the amount of documents he has isn’t in itself relevant. The prosecution don’t know how much of the information available is related to the Limburg attack and is relevant to the case—and until the prosecution knows that, it won’t know how many pages on Fadhli it can conceivably pass along to the defense. The prosecution doesn’t even know whether Fadhli’s involvement in the Limburg bombing was the main factor behind his assassination.

MJ [Col SPATH]: Have you received the package that the U.S. Government put together on why they were going to do that drone strike?

ATC [LT CANTIL]: No, Your Honor.

MJ [Col SPATH]: Then we don't know. We don't know, so we can't say that.

The judge then asks whether the prosecution informed the defense whether or not Fadhli had been targeted under their discovery obligations. Cantil responds that “there are a number of things that are going through the discovery pipeline.”

“If we haven't told them the government killed [Fadhli] in '15 because it's in the pipeline of discovery, we have a problem,” Judge Spath says.

After a quick break, Kammen steps up to respond to the government. He’s “almost having PTSD flashbacks” hearing Cantil’s arguments, he says—perhaps an unfortunate choice of phrase at a pretrial hearing for a defendant who was waterboarded. He argues that Judge Spath is going to need to issue an order to force the government to comply with its discovery obligations.

Next up is Rosa Eliades for the defense, arguing for a motion to compel the release of medical records on Nashiri both for mitigation purposes and to allow the defense to keep an eye on his health. For the government, Navy Lieutenant Cherie Jolly says that Judge Spath should deny the motion as moot: the government has provided the relevant records, subject to classification review, and will continue to do so. Eliades stresses that the defense wants Nashiri’s psychiatric and psychological records, which they’ve so far been denied, and Jolly responds that they’ll quickly file a response to the defense’s motion on that issue.

Now, Mark Miller steps up for the government to argue that the court doesn’t need to hear further testimony on Nashiri’s motion sickness. (The defense has already brought in a physician to testify on the matter, and Miller feels that testimony from the commander of Joint Task Force Guantanamo is unnecessary.) Kammen chimes in that it’s “up in the air” at the moment whether Nashiri himself will testify.

The question before the court is what a trial will eventually look like in this case, given Nashiri’s own physical and mental condition and the likely psychological strain of a trial on many of the victims’ families, Kammen argues. “All of us have to be sensitive to everybody's needs as we go forward”—including, presumably, Nashiri’s motion sickness.

That’s all for the day, with the exception of some lingering administrative business. The court heads into recess, to reconvene tomorrow.