This Week at the Military Commissions, 1/9 Session: Female Guards, Special Counsel and Discovery

It’s Monday, and pretrial proceedings resume in the case of alleged al-Qaeda commander Abd al Hadi al Iraqi, aka Nashwan al-Tamir.

The usual players take the field: Brent Rushforth, defense counsel for Hadi; Commander Douglas Short, trial counsel for the government; and Colonel Peter Rubin, presiding as of November 2016. Judge Rubin notes the absence of the defendant, Hadi. Rushforth explains that an old issue has risen anew: after Hadi was moved to the holding cell, the guard force changed to include a female guard, and Hadi objects to being touched by that female guard. Judge Rubin agrees that the commissions have already decided this issue on a motion fought vigorously by both parties (in a ruling by the previously presiding judge, Captain J.K. Waits), and that the defendants may not demand an all-male guard force. The defense is dispatched to discuss the options with Hadi, but Judge Rubin warns, “one way or another, he will be brought into the courtroom during the recess.”

After a 15-minute recess, Judge Rubin reads Hadi his rights regarding attendance at court sessions, explaining that in some situations he may choose to not attend, while in others he may be so compelled. The judge then allows Hadi to make a statement about the morning’s events. Hadi describes his distress at the encounter with the female guard and his dismay at the judge’s order:

I never thought that a judge would issue an order that would really not permit somebody who is trying to practice his religion in a way that he did, in a very respectful manner. . . . All of this is just for a simple matter that is the touching by a female. A female can sit next to me, can talk to me, can work with me, but cannot touch me. That is a simple teaching. It’s not a matter of respect. I do respect every human being, black, white, woman, elderly, child, everybody. . . . If there is going to be a female guard that’s going to come, I will probably not be able to meet with my lawyers and I cannot come to court, so I don’t know how we can achieve justice here.

Judge Rubin explains that no insult is intended by assigning female guards but that the guards rotate so frequently that it is not feasible to continually accommodate an all-male guard force; the issue, he says, is settled. He denies the defense’s request for a continuance, and the defense respectfully informs the court that it will consider appealing for a writ and seeking a stay of the military commission.

The judge launches into a summary of the prior day’s closed session but is interrupted by Hadi, who is shackled in the courtroom and asks to be returned to camp to rest. He says, “You can see the blood in my hand and in my wrists.” Judge Rubin responds that they will take a recess soon and that Hadi can return to camp at that time. (According to the Miami Herald, Hadi could not be seen on the video feed because of the imposition of an unexplained partial video blackout.)

AE 064A: Special Trial Counsel

First up on the docket is motion AE 064A, in which Hadi’s defense challenges the Chief Prosecutor’s authority to detail special trial counsel to represent the government on specific remediation of alleged obtaining classified information outside of the discovery process. Captain Fischer is on this motion for the defense and argues that the Chief Prosecutor essentially appointed special counsel to investigate the defense’s possession of specific materials. The defense’s position is that this is wholly beyond the authority of the Chief Prosecutor. Lieutenant Commander Spencer argues for the prosecution that it isn’t accurate to characterize the special trial counsel’s role as investigative. Furthermore, Spencer argues this same procedure has been used for years in the military commissions, has been ruled on by other commission judges, and is well within the broad authority of the Chief Prosecutor.

The judge interjects. He’s being told Hadi is in some pain in his restraints. After both sides wrap up arguments on 064A, Judge Rubin tells the attorneys to convene during recess to discuss the scope of arguments on the next motion up, AE 066, and the session goes into recess.

AE 064A: A Preservation Motion

When the commission is called back to order, Hadi has opted to return to the compound. Judge Rubin denies AE 064A (the defense motion argued just before recess). Next up, motion AE 066, a defense request for a commission order directing the government to preserve all materials related to the torture, abuse, or mistreatment of Hadi.

Captain Miller for the defense on 066. Miller notes that the motion is only for the limited purpose of preservation so that discovery motions on specific materials can be issued and argued. The defense argues preservation both ensures constitutional and evidentiary rule compliance and protects the defense from the destruction of evidence that may be material and helpful to mounting Hadi’s defense. According to the defense, the information will be material not only at the guilt phase but also as to punishment.

But, defense counsel notes, the government argues that the information is not material because Hadi wasn’t subject to enhanced interrogation techniques. Although the defense doesn’t concede that Hadi wasn’t subject to EITs, it argues that EITs alone aren’t dispositive; any mistreatment would be material. Perhaps more importantly, the defense says the information is material in that it is relevant to tying the defendant to co-conspirators, which is critical to the prosecution’s case.

Lieutenant Commander Lincoln is on deck to argue the preservation motion for the government. Lincoln highlights that the defense has had numerous opportunities to file motions to compel (of which the prosecution has received just one) and discovery requests (all but one of which the government has responded to). A preservation order, the prosecution argues, is unnecessary because the government understands and has complied with its discovery obligations and it is burdensome because it is overbroad and would be nearly impossible to comply with and to enforce.

Instead, the prosecution “welcomes” a motion to compel, which it believes to be the proper vehicle for resolving discovery disputes. Finally, the prosecution takes issue with the defense’s characterization of discovery disputes as “hiding evidence”: if the defense disagrees with the prosecution’s determinations of what is discoverable, the proper mechanism, again, is a motion to compel.

Miller counters by reiterating that a motion to preserve is simply the preliminary step to a motion to compel: “since they welcome motions to compel, I would think they would welcome the preservation order as well.”

The session breaks for lunch.

Appellate Exhibit 065

When we return from lunch, the government’s team has changed. Now, Special Trial Counsel Major Lebowitz is up to argue Appellate Exhibit 065, in which the prosecution requests that the defense destroy classified information in its possession. (Note this is the result of the very procedure argued earlier today in motion 064A: Special Trial Counsel, on behalf of the prosecution, investigates and requests return or destruction of certain classified information.)

Major Lebowitz explains that the defense is obligated to return, destroy, or cut off its access to classified material, regardless of how it obtained the information, and that allowing the defense to argue it should have access because the information is material turns the 505 procedure (the military commissions equivalent to CIPA solutions for handling classified information) on its head.

Judge Rubin is puzzled by the prosecution seeking an order while at the same time a third party IT firm is being contracted to assist the defense teams in searching their files for the material in question, and that process seems to be going forward. The government wants to be clear on the issues to the court from the beginning, “to ensure that the commission is on the same page with the government” because “an issue can go sideways very quickly.” As of right now, however, the government simply wants an assurance from the defense team that it will conduct due diligence and remediate any classified information found in its files.

Captain Fischer for the defense wisely parrots the judge’s concern that an order on this matter is “premature.” When the judge presses the defense on whether they can commit to remediation if problematic information is found, Fischer likewise responds that even that question is premature, asking the defense to “commit to remediate in a vacuum.”

This makes Lebowitz even surer that now is the appropriate time for the commission to issue an order to Hadi’s defense team: “the fact that this defense team is not committing to going through their own files and conducting some level of due diligence to see if they have this information . . . then that’s a problem. This is national security information.” According to Lebowitz, if the defense believes it should have a particular document, it should destroy the copy it obtained improperly and properly obtain the document via the discovery process.

Appellate Exhibit 065A

The final motion today is a variant of 065. In 065A, the prosecution requests an order prohibiting the defense counsel from using SIPRNet or JWICS (share drives and networks) to browse or obtain classified information outside the discovery process. (This is apparently how the information subject to remediation in 065 was obtained in the first place.)

Major Lebowitz wants to be absolutely sure that there are no gaps or misunderstandings in what constitutes prohibited browsing or downloading of information on these networks.

As with 065, the defense argues this would simply be a premature, unnecessary, and repetitive order, and that the defense team is already complying with its obligations. Furthermore, the defense highlights that all of its members are cleared and subject to nondisclosure agreements, so the idea that this all implicates security breaches is inaccurate.

After wrapping up the day’s argument, Rushforth has one last request: “if I may, I’m not sure you have anything to do with this or could do anything, but if there’s some way you could get a flight out Thursday instead of Saturday, a lot of us would be very appreciative.”

“I wish I had that type of power and authority, but no, I believe all of us will be here until the flight leaves.”