This Week at the Military Commissions, 3/13 Session: “It Was Devastating”

Editor's Note: This post has been updated with a paragraph concluding the day's coverage, as the transcript for the last session of the court's March 13th hearings was originally not available on the Office of Military Commissions website.

***

Monday’s session begins with Richard Kammen for the defense telling Judge Vance Spath that the prosecution team has not produced as much discovery material on the CIA’s detention, rendition, and interrogation (RDI) program as it initially said it had: the Prosecution said they turned over 1,000 pages, but Kammen says it’s more like 300. Mark Miller for the prosecution insists that that 1,000 number is right. Judge Spath moves on: “We’ll figure it out.”

Judge Spath then tells both parties that he is going to grant the prosecution’s motion to depose Ahmed al-Darbi. The prosecution must turn over discovery materials related to al-Darbi, including mental health records, to the judge for in camera review by April 15. As for the defense’s motion AE335 to suppress al-Darbi’s testimony on the grounds that it would be coerced (discussed last time), Judge Spath reiterates to Miller that if there is an evidentiary hearing on the issue, the prosecution will have to demonstrate voluntariness.

Judge Spath then moves on to the primary issue of the day: presenting witnesses who collected and were custodians of evidence from the Cole bombing. William Mark Whitworth, unit chief of the explosives unit of the FBI laboratory, is the first. He’s a 28-year FBI veteran who in charge of the division collecting forensic evidence after bombings. After walking through standard operating procedures, Whitworth explains that Cole evidence was flown into Andrews and Norfolk and he mentions the agents who flew it in.

Kammen begins cross-examination: he’s interested in the work the explosives unit did in Yemen. Whitworth tells Kammen that bombings are “probably the most difficult crime scene that you can conduct,” agreeing with him that there’s “always chaos,” “absolutely catastrophic” injuries, and all the evidence is in “very small pieces.” There’s a need to “document everything” because “what’s important may not be obvious.” The actual analysis of the data took place at the American lab, not in Yemen. Examining the Cole evidence, the unit found DNA, fingerprints, trace evidence, explosive chemistry, and paints and polymers from the boat. They mapped the quadrants in which pieces of evidence are found, but they did not mark the precise location for the “tens of thousands of pieces of fiberglass” in part “because it’s a very random event in a bombing scene as to how things are thrown,” and therefore precise location “is not as important to me as a device examiner.” There is written documentation where things are found, but that is kept in the New York Field Office, not in his lab. Kammen then asks how the field examiners decided what was important enough to send back. Whitworth does not know. Kammen mentions a 2000 DOJ “Guide for Explosion and Bombing Scene Investigation”—Whitworth knows it well; his office helped write it. Whitworth says it contains “best practices,” but refuses to call it “authoritative.”

Redirect comes shortly after. Whitworth clarifies that the Guide is not mandatory because appropriate evidence collection practices depend on the scene of the crime. He reiterates that with bombing scenes, it’s less important to photograph where all the pieces of evidence are. Whitworth has himself worked on bombing and body recovery teams at the Pentagon after 9/11, Bali in 2002, and has been to Afghanistan, Pakistan, and South Africa. As best he can tell, the Cole evidence review team did nothing inappropriate.

Kammen is back again for re-cross. He clarifies he wasn’t suggesting things were “mismanaged,” and Whitworth acknowledges that there were separate, mandatory SOPs for the review team that were “more rigid than the guidebook.” There was some sort of “12-step process” that the evidence team was working from. That’s it for Whitworth: he’s dismissed, told not to discuss his testimony with others, and there’s a 15-minute recess.

When the court reconvenes, Miller calls Thomas O’Connor, a 20-year FBI veteran assigned to the Washington Field Office. He has served as an instructor on post-blast training and has served as an evidence response team leader. Before the Cole bombing, he worked as part of the evidence team at the 1998 U.S. embassy bombing and in Kosovo in 1999. O’Connor was assigned to be the evidence team leader going to Yemen. When he arrived, the Yemeni military initially did not allow them to leave their plane; when they did get off, the Yemeni military put their gear through metal detectors “that actually weren’t working.” They then figured out how to apply the general principles of post-blast collection to the Cole—an explosion in the water. He reiterates Whitworth’s point that it doesn’t matter where evidence ends up; they divide the scene into grids and note just which grid it came from. Miller shows the commission a series of photos of the scene of the crime when the team arrived, and successfully moves for admission of all.

O’Connor then lays out of the uniquely complicating factors about this investigation. It’s the only explosion in a deepwater port he’s ever worked on; “the crew was still onboard, and . . . they were trying to keep the ship afloat,” and in some parts of the ship it was 130 degrees Fahrenheit. They worked on recovering bodies of twelve missing sailors for about seven days in a row. The damage inflicted on the Cole was “devastating.” An underwater team looked “for remains that may be at [or] below the waterline.” More pictures of the Cole are admitted into evidence. Evidence was taken from each deck of the Cole, put into buckets, and sifted. Throughout this time, the crew of the Cole “were busy”: “there was literally times when they didn’t think the ship was going to stay up.” Even more photos of the Cole get admitted; Kammen doesn’t object to anything. O’Connor explains that they were looking for pieces of the boat carrying the bomb, “the motor, anything that we could possibly have,” also “motherboards, plastic that would contain the device itself”—“something that didn’t belong on a metal ship.” The Cole’s master-at-arms was assigned to help them sift through evidence, which helped in those determinations. Photos of these “foreign objects” are admitted. O’Connor explains that in some of the photos, you can see that metal is rusted “from chemical reaction of the blast.” That’s the kind of thing they’re looking for. More photos follow. At 11:44 am, the court breaks for lunch.

Miller continues direct examination at 1pm. After pieces of evidence are “determined to be of potential value,” agents put them into bags and record them, place the bags in a secure room on the ship, and then brought to shore each night. Jane Rhodes and Dayna Betters were custodians and took the items back to the New York office to process. When bodies were recovered, they were put in body bags and brought to a separate area on the ship. More data from the bodies were collected to identify them, and they held short ceremonies for the victims. Photos of evidence are shown and admitted. A duplicate of the chain of evidence document is produced. O’Connor confirms that he signed registration information on various pieces of evidence that have been introduced as prosecution exhibits. Of all those pieces of evidence, he has “no reason to believe that they have been altered in any way.” Direct examination is over.

Kammen begins cross-examination. O’Connor agrees with him that prompt documentation at a crime scene is critical because investigator testimony fades over time. Kammen brings up the 12-step evidence collection process; O’Connor knows it. Kammen walks through each step. O’Connor confirms that he worked with Leo West and Don Sachtleben from the FBI explosives unit in Quantico. Sachtleben received an award for his assistance during the investigation, Kammen mentions, but O’Connor did not know about that. O’Connor’s team left when there was a threat to his hotel. Kammen rewinds back to his initial arrival and how the Yemenis wouldn’t let them de-board their plane. They were not physically prevented from getting off, but they did not feel comfortable doing so. After briefly touching on the threat to the hotel and the FBI’s command structure, Kammen jumps back to the investigation itself. As for mapping out the location of evidence, the beach itself was not gridded; anything that looked like it didn’t belong on a beach was collected. Kammen asks a few more questions about how they labeled locations, but O’Connor emphasizes that the only relevant locational detail is that evidence is “found within the zone of the blast.” Kammen tries to ask about how the Yemeni government had initially suggested that the Cole bombing was an internal explosion during refueling and not a terrorist attack, but Judge Spath blocks this line of questioning; it’s irrelevant. Shortly after, Judge Spath calls for a brief recess.

Judge Spath reopens the hearing with a brief announcement: “I don’t want to talk about coffee anymore.” The problem is that participants in the commission can have whatever drinks they, like provided they clean up their mess; people in the gallery are limited to water. “It only took six years to fix the coffee situation,” quips Kammen, and he restarts his cross-examination.

Kammen shows O’Connor a few pieces of evidence and confirms that O’Connor, just by looking at a piece of debris, does not know if they were collected, relevant, fingerprinted, or anything else. Kammen then asks about a piece of evidence collected from the ocean floor: O’Connor does not know which diver collected it or where exactly the evidence was collected. Again, precise location is not important. Finally, Kammen asks if there are any mandatory standard operating procedures that must be followed in evidence collection; O’Connor says no. With that, he’s dismissed.

Jane Rhodes-Wolf is called next. She joined the FBI in 1996, retired March 2016, and was in the New York Office when she volunteered to join the Cole evidence response team. She confirms O’Connor’s testimony that she was in part responsible for the evidence custodian system. “We established the best we could, given the conditions, an evidence control area.” Every night they would take the evidence gathered and move it back to a trailer onshore. The room where they kept the evidence during the day and the trailer (which was in a Marine encampment) were locked. Eventually when things became unsafe in Yemen, they moved the trailer to the USS Tarawa, a Marine transport ship, which took the evidence to Norfolk. Most of the evidence came from above deck. Recovering victims “was our number one priority,” but they were also looking for debris from the terrorists’ ship, “explosive residue[,] or any other clues to the identification of the attackers.” West, Robert Siefert, and Sachtleben from the explosives unit helped them figure out which pieces of evidence were important. It was hard work: 110-degree weather every day, one of the few crime scenes with victims “still present,” and the sailors were all physically and “emotionally drained.” Miller shows a copy of the chain of custody receipt and Rhodes-Wolf confirms its authenticity. She does the same for several pieces of evidence from the Cole. After a while, Judge Spath calls for a 15-minute recess.

They return at 4:16. Miller resumes his questioning of Rhodes-Wolfe, clarifying a few chain of custody and handwriting queries while showing more photos of evidence. Judge Spath adjourns for the day; they'll return on Tuesday at 9.