This Week at the Military Commissions, 9/7 Session: The Return of the Prodigal Defendant

And we’re back, after a trifling 18-month delay, a lot of litigation, and a major D.C. Circuit decision: the military commission has reconvened for three days of motions hearings in the case of Abd al-Rahim al-Nashiri, accused of orchestrating the USS Cole bombing. Presiding as military judge is Air Force Colonel Vance Spath, who begins the hearing by asking the prosecution and defense to introduce their respective line-ups before the court. It’s been a while, after all.

Mark Miller of the prosecution introduces the government’s team, consisting of Brigadier General Mark Martins, Lieutenant Paul Morris, Lieutenant Jonathan Cantil, and Lieutenant Cherie Jolly, with assistance from Sergeant Vanessa Pichon, Mr. Forrest Parker Smith, and Mr. Louis Marmo. For the defense, Richard Kammen notes that al-Nashiri’s team has undergone a bit of a shakeup since the court was last convened; currently, only Kammen and Lieutenant Commander Jennifer Pollio are present. Four military members of the defense team have left since the previous hearings, three with al-Nashiri’s consent and one—Commander Brian Mizer—without.

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Judge Spath runs through al-Nashiri’s right to be present or waive presence, and al-Nashiri opts to forgo prayer breaks during the hearings.

Judge Spath then begins the hearing in earnest with an ode to the importance of 802 sessions, of which the judge and both parties held only one during the 18-month break in proceedings. He believes these sessions are important to encourage “civil behavior between the two sides.” It emerges that Kammen turned down an informal 802 session yesterday, and Judge Spath is doing his best to coax the defense back into participating in the informal, off-the-record 802s.

Kammen rejects Judge Spath’s suggestion on the grounds that the defense wants all such conferences on the record in light of two “sea changes.” Sea change number one is the D.C. Circuit Court of Appeals’ recent decision in Nashiri II, holding that the military commission proceeding must play out in full before the federal courts can reconsider the commission’s jurisdiction over al-Nashiri’s case. As such, Kammen argues, “it is really incumbent on us to create as robust a record as possible of the many problems that we see in this process”—which is, “no disrespect” to Judge Spath, “not a real process.” Sea change number two is that the defense has become concerned over possible ex parte communications between the government and the court.

Judge Spath assures Kammen that there’s nothing to worry about on his end as far as ex parte sessions go. For the prosecution, Miller says that he prefers informal, off-the-record 802 sessions as opposed to on-the-record sessions.

Now that the 802 issue is temporarily out of the way, Judge Spath, the defense, and the prosecution begin arguing over what motions will be heard during the three-day session and in what order. First on the table are two unclassified defense motions regarding abatement of the proceedings: one motion to abate pending the reinstatement of Commander Mizer as al-Nashiri’s counsel, and one motion to abate until two new members of the defense team receive their security clearances.

Judge Spath wants to start with the Mizer motion—but because of a misunderstanding over whether or not the defense intended to call him as a witness, Mizer is only now en route to the video teleconferencing location. While Mizer heads toward the VTC, the defense begins instead with testimony from other witnesses. Because Judge Spath has declined to let those witnesses testify, Kammen and Polio make do by reading aloud their written testimony.

The witness testimony, by chief defense counsel Brigadier General John Baker and Dr. Sondra Crosby, emphasizes the “severe adverse impact” on both al-Nashiri and the defense team caused by Mizer’s departure without al-Nashiri’s consent. Mizer’s departure was particularly straining to Nashiri’s psychological state, Crosby argues (through Kammen) because al-Nashiri had his “most trusting relationship” with Mizer—”which is not to say it is a relationship of complete trust, it [was] only the most trusting relationship.” As a result, Crosby says, al-Nashiri lacks confidence in his new legal team. “At times,” she goes on, “I understand that he has questioned their very existence.” That’s about as fundamental as mistrust gets.

Baker, through Pollio, also testifies that the Military Commissions Defense Office is experiencing “significant resourcing issues” particularly as to “lack of qualified military counsel.” Additionally, he says, the defense is suffering from the delay in processing of security clearances for civilian counsel. Mary Spears and Rosa Eliades were detailed as civilian counsel for al-Nashiri a year ago, but they have yet to be fully cleared or to meet with their client.

Turning to the government, Judge Spath says that the security clearance issue “needs to be a priority for somebody.” “We need to move this forward,” he continues, or “we’re going to get to a point where we can’t go anywhere.”

The court goes into a brief recess for a euphemistic “health and comfort break.” When a healthy and comfortable Judge Spaths calls it back to order, Miller announces that Mizer is still not at the VTC location, but should be there shortly.

For the government, Lieutenant Morris requests that the court also hear testimony from another witness, Commander Stephen Gill. Gill is only available this afternoon and the government would like him on the stand. But Gill also isn’t yet at the videoconferencing location, so the court engages in some reshuffling of schedules to fit everything in.

While waiting for both Mizer and Gill, Judge Spath takes on the defense’s motion for abatement until Spears and Eliades receive their security clearances. He notes that, under the current rules, al-Nashiri is entitled to a learned counsel (Kammen) and one detailed military counsel (Pollio), to which Spears and Eliades would be additions. Spath believes that the court will be able to move forward in pretrial proceedings despite the defense’s motion for abatement, as al-Nashiri is still adequately represented under the terms of the statute. He seems to be asking: Can’t we just push back the motion for abatement until the proceedings are further along?

Uh, no, says Pollio. The motion for abatement is ripe, she argues; the defense is “severely undermanned,” and needs additional civilian counsel not later, but now. She’s asking for an abatement of six months from the day that Spears and Eliades are read in, so that the two can have “full participation” for any pretrial motions or hearings.

At the mention of pretrial motions, Judge Spath bristles. “Pretrial motions, absent new information, should… have been coming to a close 18 months ago,” he says. “We are through the pretrial motions stage.” He’s clearly irritated about the delays plaguing Nashiri’s case. And who wouldn’t be? The D.C. Circuit recently speculated that it might be a full decade before the case is done.

For the government, Cantil argues that the court has already addressed exactly this problem under Judge Pohl, before Pohl transferred the al-Nashiri proceeding to Judge Spath. Judge Pohl previously declined to abate proceedings to allow additional defense counsel to obtain a security clearance, on the grounds that al-Nashiri already had his statutorily allotted learned counsel and detailed military counsel. Judge Pohl’s reasoning still holds here, Cantil says: neither the Rules for Military Commissions nor the Military Commissions Act provide “a right to specific additional counsel,” despite the defense’s argument.

In response, Pollio says that al-Nashiri has a right to “effective assistance of counsel,” especially because this is a capital case. She points to Tsarnaev, Moussaoui, and McVeigh to argue that in no other capital litigation has the defendant been left with only two counsel.

“The bottom line,” says Judge Spath, “is we cannot abate these proceedings every time a new defense counsel is detailed.”

Mizer, says Cantil, is still en route. And in order to wait for him to arrive, the court goes into recess once more.

When the court reconvenes, Mizer appears at long last over the video teleconferencing system. He’s ready to testify, but Judge Spath, Cantil, and Kammen immediately get into a tangle over the logistics of swearing him in as a witness. Despite what Judge Spath describes as “longstanding practice in the military” allowing the government to swear in witnesses, Kammen objects. He thinks that having the government swear in Mizer, as opposed to Judge Spath doing so, “really sends a very clear message that we in the defense are second class.”

“I don’t think you’re second class,” says Judge Spath.

Mizer begins his testimony. He was assigned to al-Nashiri as lead military counsel and developed “a very good working relationship” with the accused, despite al-Nashiri’s distrust of the commission system. His orders expired in October 2015, at which point he requested of Chief Defense Counsel Brigadier General Baker to withdraw from al-Nashiri’s case. al-Nashiri did not consent to Mizer’s withdrawal. Under cross-examination by Cantil for the government, Mizer says that he chose to request a withdrawal rather than seek to extend his orders because “there was no case at that point.”

That’s it for Mizer’s testimony. The court recesses again.

With the court back in session, Lieutenant Commander Stephen Gill is now ready to testify at the VTC. Gill’s involvement with the court stems back to Judge Spath’s ruling in March 2015 disqualifying the legal staff of the convening authority for military commissions, on the grounds that the authority’s issuance of a soon-revoked requirement for judges to live at Guantanamo for the duration of military commissions constituted “unlawful command influence.” After the order disqualifying the staff, Gill began to effectively act as al-Nashiri’s sole legal advisor. He soon became concerned that some of the disqualified staff had remained involved in al-Nashiri’s case despite Judge Spath’s order.

Between direct and cross-examination, Gill tells a complicated story regarding what he believes to be unlawful involvement in al-Nashiri’s case by the convening authority’s staff. Gill was demobilized from active duty following his filing of reports on the staff’s involvement, and believes the demobilization was a retaliation. He’s since filed for a declaratory judgement in federal court under the Military Whistleblower Protection Act.

Over the course of Gill’s testimony, the government does its best to paint him as unreliable—or as a “litigious personality,” as Judge Spath puts it—who’s currently involved in bitter divorce proceedings and two lawsuits against the government in federal courts, and who has filed more than eight civil matters over the last decade. The defense is unhappy with this line of questioning and wants to call additional witnesses to prove that Gill is telling the truth about his experience working for al-Nashiri. Judge Spath agrees that the defense has a right to do so, but he wants to focus on getting through Gill’s testimony before moving on to other issues.

Once Gill finishes up his time at the VTC, Judge Spath moves on to other administrative matters. He says the court will hear argument on the defense’s motion for abatement over Mizer’s withdrawal tomorrow (Thursday). Or that’s the plan, anyway. Today’s proceedings, according to Judge Spath, demonstrate “how plans don’t survive first contact.”