Monday and Tuesday at the Military Commissions: Al Nashiri

The Al Nashiri military commission proceedings returned Monday for what is scheduled to be two weeks of pre-trial motion hearings. After an off-the-record session in the morning, the commission picked up in the afternoon session with AE 332, a defense motion to dismiss for unlawful influence and violation of due process for failure to provide an independent judiciary. Before beginning oral argument on the motion and related issues, commission judge Air Force Colonel Vance Spath disclosed recent discussions he had with the Air Force's Judge Advocate General and Deputy Judge Advocate General, as well as with Colonel James Pohl, Chief Judge of the Commissions, related to Change 1 to the Rules for Military Commissions. Change 1 requires that detailed commission judges drop all non-commission matters and relocate to Guantanamo Bay immediately until the conclusion of the commission. It seems that there is some confusion within the Air Force and among commission judges as to whether Change 1 applies to all commission judges—including this commission on the U.S.S. Cole bombing—or only to those hearing cases related to the attacks of September 11, 2001. After the disclosures, the commission moved to AE 332C, a related defense request for discovery of documents pertaining to Change 1 that are within the convening authority's possession. The defense explained that it expected to find in these documents names of potential witnesses, information about how this policy change came about and whether the convening authority promulgated Change 1 for an unlawful purpose, and evidence that Change 1 was meant to accelerate the pace of litigation at the commissions, which should be the purview of the commission judge, rather than the convening authority. The defense rejected the government's claim that such documents fall under the "deliberative process" privilege, noting that this privilege is not one that the military rules recognize and, even if it does apply, it can be overcome by a sufficient showing of need. Courts have read the privilege narrowly when there is a public policy interest in understanding how the government makes certain decisions and in discovering government malfeasance. If the judge decides that any of these documents are privileged, the defense asked for an index with basic information about each nondisclosed document—sender, recipient, date, caption—to facilitate a full discussion of why each document is privileged. During the government's argument, Judge Spath clarified how he is thinking about this discovery request: If he finds that the privilege does not apply in this instance, he will apply the normal standard for compelling discovery. If the privilege does apply, it may be pierced based on factors listed in a case cited by the government—In re Sealed Case. The government accepted this framing of the issue. The prosecutor explained that the military commission rules cover any privilege recognized in common law, and the government has presented three cases showing applications of the privilege in civilian cases. In response to the public policy justification for piercing the privilege, the government pointed out that the judge has reviewed these documents in camera and will make this discovery determination having seen all the documents. Next, the commission took up AE 332E and 332G, defense motions to compel witnesses related to the creation of Change 1—in particular, commission convening authority Vaughn Ary, Deputy Secretary of Defense Robert Work, and Department of Defense General Counsel Stephen Preston. These individuals, especially Ary, could testify as to why the TJAGs—the chief Judge Advocate Generals of the Army, Navy, and Air Force—were cut out of the process of assigning the military commission judges. The defense would also like to call the TJAGs to testify about their thoughts on Change 1, whether they were consulted prior to the change, and how they plan to staff as a result of the new policy. When the prosecution rose to provide its rebuttal, Judge Spath quickly explained the underlying issue in this series of motions: The documents describing the justification for Change 1—and these are documents attached to the motion, not the documents that the judge reviews in camera—show the convening authority of the military commissions expressing "his displeasure with the pace of litigation, and at least, arguably, his displeasure with the speed at which I am moving this case forward." The question then becomes whether such statements have an impact on the judge and, perhaps just as importantly, whether the public views future actions by the judge as attempts to "pay [the convening authority] back for a change I don't like," to "curry[] favor with him so I don't have Change 2," or even "to get this case resolved faster so I can move home." How can the prosecution say that the defense is not entitled to any witnesses to discuss these documents? The government responded that many of the answers that the defense seeks, such as whether the TJAGs were consulted or why the convening authority issued Change 1, are in the documents provided already; however, Judge Spath pointed out that there might be some value in asking additional questions to "let the defense flesh that out." Ultimately, the prosecutor agrees with Judge Spath that at least Vaughn Ary, the convening authority, is the witness requested by the defense "most obviously close to being necessary and relevant on the issue before the commission." The commission recessed for an extended break, after which it briefly reconvened and Judge Spath issued rulings on the day's motions. He found that there is no "deliberative process" privilege for the documents and so will release those documents that would be available under normal rules of discovery—that is, those that are relevant, necessary, and noncumulative. This means that the defense will have access to all but seven of the 47 documents at issue. On the witnesses, Judge Spath ruled that Vaugh Ary must testify, either in person or by video conferencing.Finally, Judge Spath indicated that he must still determine whether hearings can continue while the unlawful influence motion is under consideration, and with that Monday's session came to a close. Tuesday's session started with an agreement that Vaughn Ary would testify Wednesday morning. In addition to Ary, the defense asked to call four other witnesses after reviewing the documents released by the government on Monday. Those witnesses include Alyssa Adams, Raghav Kotval, and Matthew Rich, legal advisors at the convening authority, who were involved in the production of Change 1 and the various iterations of the policy before it was finalized. The defense pointed to markups on earlier proposals for Change 1 by Kotval that indicate he was concerned that the new policy might constitute an unlawful influence. The defense argued that bringing Kotval to testify could go to the "public perception of fairness of the military justice system." Comments by Rich indicate, according to the defense, that the government intended this policy to "unseat the three sitting military judges of this trial judiciary." Finally, the defense resubmits its request to call Department of Defense General Counsel Lt. Col. John Vaughn based on his comments in some of the newly released documents. The government asked Judge Spath to hold off on allowing additional witnesses to testify about convening authority deliberations until Ary, the head of the convening authority, has had a chance to testify. The government also pointed out that there is no evidence that the communications among the four requested witnesses were seen by the convening authority and so their comments cannot go to the unlawful influence of the convening authority. Judge Spath wondered whether the emails might indicate a general sentiment that the convening authority has shared in the office, something to which the legal advisors might be able to testify. Wrapping up Tuesday's brief session, Judge Spath indicated—and he clarified that he was not making a ruling—that it might be wise for the government to allow the defense to interview the three convening authority legal advisors to move the process along. The government should also make sure that those three advisors, as well as the Army TJAG, are available and ready to testify if necessary to avoid delaying the commission. Finally, Judge Spath said that because of the potential public perceptions of unfairness, the commission would not move on to other issues until the unlawful influence issues are resolved. With that, the commission recessed until Wednesday morning when it will hear from the convening authority, Vaughn Ary.