June 12 Session #2: Rules for Inclusion and Exclusion

Our first argued motion is AE142, a defense bid to prevent Al-Nashiri from being from removed from the courtroom during a closed session.  Rising in support of it is Maj Allison Danels, who notes the commission’s past rulings.  Those recognized the accused’s right to be present during all phases of the proceedings, subject to exceptions that are inapplicable here.  Shutting him out of classified hearings will deprive Al-Nashiri of his right to counsel, says the lawyer.  If Al-Nashiri isn’t present, how can he, for example, note inconsistencies between the evidence presented and his own knowledge of events?

The court tests the defense’s premise.  Do you believe this accused has an unfettered right to all classified materials, despite his lack of a security clearance?  Danels: this is a death penalty case, your honor, and no rule precludes him from being present during classified pretrial hearings.  No, that’s about commission process; the military judge still wants to know Danels’ view of the defendant’s rights.  The lawyer cites the protective order, which blocks her from sharing secrets with the accused.  Still not getting there, says the court. Danels refers to congressional intent.  If legislators want to exclude the accused from classified meetings, then they can do so explicitly---but they haven’t.  No surprise there, given the right to counsel issues at play, and the extraordinary penalty contemplated by a capital military commission.  Danels further adds that the accused’s presence lends legitimacy to the proceedings---according to even the government, which has generally urged Al-Nashiri’s presence at hearing sessions and closely monitored his waiver of presence rights.  She wonders how presence be legitimizing for some purposes but not others.  So do you have any authority for your key proposition, counsel---about his right to be present during classified back-and-forth?  Danels concedes that she doesn’t, and then returns to her argument about the absence of an exclusion provision, on the one hand, and the consequences of exclusion for Al-Nashiri’s rights, on the other.

Assistant trial counsel Justin Sher says the accused has a statutory right to be present---but that right isn’t absolute.  In that regard, Al-Nashiri stands in the same position as defendants in civilian national security cases; judges have excluded defendants from classified pretrial hearings in those, too.  The court clarifies: you mean interlocutory matters, right, as opposed to the case in chief?  The prosecutor has the first in mind, but gestures towards a separate procedure come trial-time. But what if the government plans to introduce classified information that came from the accused himself?  Asked differently by Judge Pohl, when can the accused hear classified material during interlocutory proceedings?  When the accused furnishes the classified information to his counsel, answers Sher---subject to safeguards and procedures imposed by the MCA 2009.  The prosecutor seizes on an evident opportunity to move forward, to a comparison of commission and federal court procedures, both of which are informed by CIPA.  And again, in CIPA cases---Marzook and In Re Terrorist Bombings, for example---civilian judges kept defendants out of the courtroom during interlocutory classified proceedings.

Danels returns.  Here’s the thing: the prosecution acknowledges Al-Nashiri’s right to attend his trial.  Well, if so, then why can’t he attend pre-trial classified discussions to boot?  One reason, the court surmises, is that trial evidence more obviously implicates Al-Nashiri’s rights---confrontation, due process, and so on.  Mention of the latter returns Danels to her death-is-different theme.  So we could exclude Al-Nashiri, if the prosecution didn’t seek the death penalty?  The hypothetical is lost on the defense attorney: this is a death penalty case, she says.  She then addresses the MCA 2009’s substitution provisions for classified stuff---which, again, don’t anywhere authorize the accused’s exclusion.  Danels leaves no doubt about what she has in mind: “classified evidence that the accused was exposed to,” meaning evidence bearing on Al-Nashiri’s abusive interrogation.  If the question is torture inflicted on the defendant, then how can he be precluded from hearing pretrial proceedings that turn on evidence of his torture?  He shouldn’t be, as Danels insists.  After once more emphasizing the absence of explicit exclusionary language, she returns to counsel table.

Returning to the podium, the prosecutor cites In Re Terrorist Bombings and Marzook.  In the latter, the court considered the admissibility of defense statements, but not the statements themselves.  We’re doing pretrial stuff here, not trial stuff, he seems to say, and pretrial procedures allow for exclusion from classified session, 'nuff said.  The court asks one more time about accused-provided information, and Sher reaffirms his earlier answer---if it came from the defendant, and was supplied to is counsel, then the accused can be present, subject to the rules.  But barring that, exclusion is the name of the game, before trial anyway.

Kammen asks for a bit more time and gets it.  Mitigation worries him.  In light of that, he underscores the problem of classified interrogation methods that were forced on Al-Nashiri.  Defense counsel can’t simply probe the client’s mind about how much Al-Nashiri knows about this or that classified information; they are specifically prohibited from doing that.   So is Al-Nashiri entitled to classified evidence he hasn’t already been exposed to, queries Judge Pohl.  Kammen agrees that he’s not, broadly speaking, but reiterates nevertheless that this is a capital case, and that the rule ought to be different so far as concerns classified evidence to which Al-Nashiri concededly has been exposed already---that is, evidence of torture.  For Kammen, it’s a matter of providing effective assistance of counsel.  You can’t do that---you can’t do it right---when matters at the heart of mitigation cannot be adduced until trial. That’s just far too late to prepare the needed defense.  The court: if the government files a motion regarding classified material, and there’s no suggestion that the accused has been exposed to that material, is he entitled to hear closed argument then? Again, Kammen answers, such is the vexing nature of these military commissions---we can’t ask our client if he is familiar with the evidence at the outset.  How could we know?

The defense got some extra time, so the prosecution does, too.  On behalf of the government, Joanna Baltes rises and stresses: the case law draws a bright line between arguments on the merits and interlocutory matters, and finds no confrontation or due process problem when the defendant is excluded from the latter. So, Judge Pohl asks, is there any interlocutory matter brought by the government, that involves classified material, but that allows for Al-Nashiri’s attendance? No, responds the prosecutor, though the accused can, as Sher mentioned, attend and participate in hearings, when they implicate classified materials furnished by him in the first instance. As for the defense's can't-find-out-when-the-client-knows-things-that-are-classified paradox, Baltes thinks its a matter of smart lawyering.  Mr. Kammen, she says, is more creative than I when it comes to inquiring whether, in fact, his client is familiar with such material.

Thus concludes argument on AE142.  We’re on a 15 minute recess.