This Week at the Military Commissions, 4/24 Session: A Long Run for a Short Slide

We return to Guantanamo for a military commissions hearing in the case of Abd al-Hadi al-Iraqi—or, as he’d now like to be called, Nashwan al-Tamir. Military judge Marine Colonel Peter Rubin calls the commission to order and begins by questioning Adam Thurschwell, newly assigned counsel for Hadi, on his potential conflicts of interest related to his work as defense counsel in the military commissions case of Ammar al Baluchi and appellate litigation on behalf of Salim Hamdan. Satisfied that there is good cause to believe that there are no conflicts, Judge Rubin swears Thurschwell in as defense counsel. He then notes the absence of Army Majors Wendall Hall and Robert Kincaid as defense counsel, who have both been excused by the Chief Defense Counsel “[g]iven the needs of other cases that include the anticipated charging of another high-value detainee as recently communicated to the Periodic Review Board by the chief prosecutor.” What that imminent charging might be, we don’t learn.

Judge Rubin advises Hadi of his right to be present and waive presence, and Hadi indicates his understanding.

The court dives into administrative business, with the defense moving to cancel hearings scheduled for June 2017 on the grounds that Eid al Fitr will be taking place from June 26 through 28. Judge Rubin grants the motion in part and agrees to cancel the first half of the June hearings, reserving hearings for June 29th and 30th after the end of the Eid holiday, with an additional open session scheduled for July 1 if needed.

Next up is a defense motion to deny a government motion to conduct an oral deposition of Ahmad Darbi, a Saudi detainee who pleaded guilty in 2014 under a deal that would allow him to serve out his sentence in Saudi Arabia beginning in 2018. The government is seeking to have Darbi identify Hadi as an Al Qaeda commander in Afghanistan. Hadi, who now says that his real name is Nashwan al Tamir, argues that the government has mistaken him for someone else.

For the defense, Thuschwell argues that Darbi’s deposition would be inappropriate. The government must retain a witness that it intends to call at trial, he says, and in this case, the prosecution has made no sign of doing so. Further, Thurschwell says, the government must make a “good-faith reasonable effort … to try to get the witness to appear at trial” before the judge moves on to the question of deposition. He ties these problems to the defendant’s broader Sixth Amendment right to confront witnesses against him.

Thurschwell suggests that the government has been tripped up by the details of Darbi’s plea agreement: he will likely be departing Guantanamo for Saudi Arabia in February 2018. The government misjudged how long pretrial hearings in the Hadi case would take and is now scrambling to fit in his deposition prior to his departure. “Mr. Al-Tamir should not be the individual who suffers the cost of the government’s mistake,” Thurschwell argues. He further disputes the government’s argument that, after departing Guantanamo, Darbi would be prohibited from potentially returning to testify because of his status as an inadmissible alien and under the terms of his plea agreement, and he argues that the government has an obligation to make a “good-faith reasonable effort” to look into loopholes. Thurschwell goes on:

If I'm using the expression right, I think at the end of the day the commission will discover, if this deposition goes forward, that we're going to have a very, very long run for a very, very short slide.

As far as we can tell based on government representations and the discovery that they've provided to date, Mr. Al Darbi is going to say he met our client once 20 years ago, in 1997, and point to him and say, yes, that's the guy.

There are other ways for the government to prove that Hadi is who he they believe he is, Thurschwell argues. And under United States v. Vo and Brady v. Maryland, there must be a substantial likelihood that the outcome of the case would be different in order for the court to allow deposition testimony.

Responding for the government, Commander Kevin Flynn says that the defense’s proposed good-faith standard is misplaced; under the law, the prosecution must simply “establish that there’s a substantial likelihood that the deponent will be available to testify at trial.” The defense is blurring the line between “the taking of a deposition and the admission of a deposition into evidence”—the latter of which is when the good faith standard applies. Furthermore, because the defense’s motion is a motion to reconsider Judge Rubin’s earlier ruling to allow the deposition, the team must show clear error, which they have not done.

After a ten-minute recess, the court moves on to consider a defense motion to cross-examine Darbi as to whether his testimony will have been affected by the “physical and psychological abuse” inflicted by the government. The defense wants to show both that the testimony should be suppressed and that it will not be credible.

Thurschwell wades into the question of “whether we can use the term torture,” arguing that “we are entitled to use the words that a witness has used in past statements to inquire about what they meant, whether they still believe it, why they think that.” If Darbi uses the term, Thurschwell says, he won’t be using it in a legal sense.

For the government, Lieutenant Commander B. Vaughn Spencer disagrees. He argues that the fact that Darbi himself has referred to his treatment as torture is irrelevant to whether or not the defense should be allowed to use the term. Darbi should stay away from “the politicized and sensitive term torture,” which may appear to the members of the jury to represent a conclusion that he was tortured in the legal sense—though he is “free to talk about the alleged mistreatment in detail, in excruciating detail, and I'm quite certain the defense will cross-examine him on that in excruciating detail.”

Next, Judge Rubin moves to a discovery motion by the defense requesting materials and records regarding Darbi from the government. Thurschwell runs through a timeline of the defense’s discovery requests on the topic. They’ve so far received roughly 4,300 pages of discovery, but are still waiting on more, and Thurschwell notes that the defense team in Nashiri has received far more information than the Hadi defense team on exactly the same discovery. The defense needs these documents if they’re going to establish that Darbi’s testimony is not credible.

For the government, Lieutenant Commander David Lincoln argues that the government has produced everything “that can be found with due diligence,” as required under the Federal Rules of Criminal Procedure. Lincoln disputes the idea that just because Nashiri’s defense team received material, Hadi’s should too; they’re different cases to which different material is relevant. But he does tell the judge that the government is now reevaluating certain documents in light of Hadi’s statement that his real name is Nashwan al Tamir, and may provide new documents to the defense team accordingly.

Turning back to Thurschwell’s earlier metaphor, Lincoln says, “I would say that Mr. Al Darbi's importance to our case is not a long run but a short slide. I have to admit I hadn't heard that analogy before.”

The commission picks up after lunch with a defense request that the judge compel production of the full, unredacted version of the Senate Select Committee on Intelligence “torture report,” along with the “Panetta review” of the CIA’s detention and interrogation program, the CIA response to the SSCI report, and all sources cited in the SSCI report. For the defense, Navy Commander Aimee Cooper argues that the redacted executive summary of the SSCI report shows that the government has mistaken her client for a high-level al Qaeda commander, and Volumes II and III likely indicate just who it is that her client was mistaken for. Cooper goes into great depth to pick apart the comedy of errors he believes will be revealed in the full report.

Citing ACLU v. CIA, Cooper declares, “This is not a FOIA case; it is a criminal case where the evidence contained in the full SSCI report and its corresponding documents actually matter and relate to real and important issues before this commission”

For the government, Lincoln steps up to argue that a military judge may only release classified information if the information would be “noncumulative, relevant and helpful to a legally cognizable defense." That standard isn’t met here, he says. He emphasizes that the government has already combed through the relevant material for potentially discoverable documents. “I think there’s a strong point as to regarding whether the CIA fabricated, lied, and was inconsistent in what [information] was left out,” he says, conceding Cooper’s point on the quality of CIA information.

A ten-minute break later, Thurschwell is back to argue a defense motion “that the commission recognize that these proceedings are governed by the U.S. Constitution”—”a bit … grandiose,” he admits. He clarifies that what the defense really wants to do is establish that their framework for considering the case is derived through Boumediene, which serves as a “baseline” for considering whether constitutional rights besides habeas also extend to Guantanamo. “There should be a presumption that the Constitution applies,” he says, going on to argue that the defense isn’t requesting an advisory opinion of any kind. Rather, this is a ripe issue that immediately affects the case before the commission.

Commander Kevin Flynn argues for the government that Boumediene applies only to the Suspension Clause and has no relevance to the case at hand. The defense is also overreading the U.S. Court of Appeals for the D.C. Circuit’s en banc opinion in Bahlul by extending the court’s narrow ruling on “whether a specific constitutional provision, the ex post facto clause, applied in the context of particular facts and in the circumstances of a particular case” to a much broader and unsupported point about constitutional rights in general. And, moreover, the matter isn’t ripe.

Flynn points out that counsel in the 9/11 case placed exactly the same motion before the commission. In that case, Military Judge Col. James Pohl denied it, and he asks Judge Rubin to do the same.

After another break, Judge Rubin gavels the court back into session for the final time today before Hadi’s prayer break. For the defense, Navy Captain Jeff Fischer is up to argue that Hadi should be allowed to waive his presence in court on the first day of every pretrial hearings, as well as his presence on subsequent days. The motion appears to be related to an incident this January when Hadi had to be forced into the court for the first day of pretrial hearings in a restraint chair, apparently because he refused to be touched by a female guard who was assigned to assist in escorting him that day.

Judge Rubin voices a concern: If Hadi originally wanted to be present but then decides he can’t attend because one of the guards on the escort force is female, is that really a voluntary waiver of presence? Yes, says Fischer. “He's making a conscious choice not to be touched by a female guard and choosing that over presence.” But speaking for the government, Spencer disagrees, diving into the Rules for Military Commissions to emphasize the importance of the accused’s presence in establishing “good order and discipline” during both pretrial and trial proceedings.

Spencer and Judge Rubin engage in a sustained back-and-forth over what it really means to have the defendant waive attendance. Must the defendant be physically present before the judge to waive his or her rights, or can counsel pass along the message? Spencer says the former, but Judge Rubin is dubious. Fischer chimes in to say that military judges have allowed written waivers in other cases.

And with that, the court goes into recess for Hadi’s prayer break. It will return for more pretrial hearings tomorrow.