Wednesday and Thursday at the Military Commissions: Al Nashiri

At the outset of Wednesday's session in the Al Nashiri military commission---the criminal proceeding against a Guantanamo detainee accused of plotting, among other things, the 2000 attack on the USS Cole---Judge Vance Spath added an extra wrinkle to the ongoing "unlawful influence" debate surrounding Change 1 to the Regulation for Trial by Military Commissions.  The latter requires that judges assigned to the commissions relocate to Guantanamo Bay for the duration of their cases. It seems that Lt. Gen. Christopher Burne, the TJAG or chief of the Air Force's Judge Advocate General corps, informed the lead defense counsel in a court-martial that Judge Spath is hearing stateside that the Air Force is in the process of replacing him pursuant to the new policy. The day's business centered around the testimony of Vaughn Ary, the convening authority of the military commissions, via video teleconference. Under direct examination from Al Nashiri's Learned Counsel Rick Kammen, Ary explained that Change 1 was promulgated in part to place the commission judges at the venue of the commissions so "that they would be available to go on the record on a more frequent basis." When pressed on whether this was intended to "impact the pace of litigation," Ary demurred, noting that the trial schedule is up to the judges and that the policy was a resourcing decision intended to position the judges so that they could devote themselves to the commissions. He denied discussing the pace of litigation in introductory meetings with the trial judiciary, the prosecution, and the defense when he first started as the convening authority in October 2014—or at least he couldn't recall—explaining that the meetings were focused on resourcing issues, not timing. In Ary's testimony, Kammen dug into the organization of the military courts, recalling Ary's previous job as the Marines' Staff Judge Advocate—the equivalent of the TJAG for the Marines. The defense treated Ary as a hostile witness throughout the proceedings; on a number of occasions Judge Spath reprimanded Kammen for cutting off some of Ary's longer answers, noting that there are no members (the military equivalent of jurors) at this stage and the purpose of this testimony is for the judge to "assess the witness' credibility and his answers" for purposes of the unlawful influence motion. During a brief break in the direct examination, Chief Judge Pohl's finding of unlawful influence due to Change 1 in the KSM et al. commission came to the attention of Judge Spath. The defense noted the public perception issues if Judge Spath continues proceedings after Chief Judge Pohl stopped his own commission, but Judge Spath explained that "absent an order to abate, we have a witness, we're getting testimony, and we need to finish the UI motion." The judge also said that Chief Judge Pohl's "opinion in that case has no reflection on what we're going to do in this case," pointing out that Chief Judge Pohl issued his ruling on the briefs, while this commission is holding an evidentiary hearing. Finally, Judge Spath wanted the public to know that while he does not feel pressured to move the case along, he wants to keep the commission moving where possible to achieve a resolution for the accused and the public. After another break for lunch, the defense returned to direct examination of Vaughn Ary. During the back and forth, Ary admitted that he and his staff were aware during the development of Change 1 that one or more of the current military commission judges might have to leave the cases as a result of the new policy. When asked why he did not vet Change 1 with the TJAGs before recommending it to Deputy Secretary of Defense Robert Work, Ary responded that he "didn't want anyone to believe that I was criticizing any particular judge. This was about a requirement for the commissions as a whole, as a system." The next series of questions posed to Ary focused on the causes of delay in the military commissions—including interlocutory appeals, monitoring of defense communications with their clients, the FBI investigation of one or more lawyers in the 9/11 case, and classification issues. Ary acknowledged that these issues caused significant delay, particularly the classified information issue, and that there is nothing that the commission judges can do to avoid these delays. In fact, one of the delays in this case was that Kammen was in a trial from June 2013 to December 2013; had Change 1 been in effect at the time, the judge would have been stationed at Guantanamo Bay "with no other duties and nothing to do," which Ary admits would not have been the best use of judicial resources. Similarly, depending on how long it takes to resolve Chief Judge Pohl's order abating and stopping the 9/11 case, the order could require that judge to remain at Guantanamo Bay with nothing to do for quite some time. Kammen then delved into Ary's authority to issue Change 1. Ary admitted that in the typical court-martial system under the Uniform Code of Military Justice, only the TJAGs, not the convening authority, may order a judge to move; however, he said that the Military Commissions Act and the rules governing the commissions provides the Deputy Defense Secretary authority to determine the location—but not the scope—of the commission judges' duties. After prompting by Kammen, Ary acknowledged that Change 1 affects the scope of the judges' duties as well because it requires that the commissions be their only major duty. They then looked at communications from Army TJAG Flora Darpino noting that Change 1 will "reduce[] the pool of Army judges who were available to the commissions." Finally, Ary said that he does not believe Change 1 does not constitute unlawful influence by the Deputy Defense Secretary over the commission judges and he would recommend that policy again knowing what he knows now. Lt. Paul Morris conducted the cross-examination for the prosecution. He asked Ary to clarify how the commission convening authority differs from the convening authority for a court-martial. Ary explained that in the UCMJ system, it would be the JAGs—not the convening authority—that would resource the prosecution, defense, and trial judiciary, whereas it is the convening authority that does so under the Rules for Trial by Military Commission. As part of his responsibility to resource the commissions, Ary implemented a number of changes, including adding staff to the commission's trial judiciary, requesting that agencies loosen up their declassification review processes for commission discovery, and recommended Change 1. He did not run the recommendation by the TJAGs because his role is under the Department of Defense and so it was up to the Deputy Secretary of Defense to decide how to proceed on the convening authority's recommendation. Ary expressed his concern that had he brought this proposal to the TJAGs, "they might have taken some sort of action that was pre-decisional that might have affected the trials." In fact, the whole idea behind developing the policy in the way that he did was "to avoid any impact." When asked to explain comments by some of his legal advisors raising the issue of unlawful influence, Ary said that it was their job to provide him with all sides of the argument so that he could bring any potential issues up with the Deputy Defense Secretary when he provided the recommendation. After a very brief redirect and recross, Judge Spath asked Ary to clarify what pre-decisional actions Ary was concerned that the TJAGs might take if they say the proposed policy change. Ary clarified that in addition to preemptively removing commission judges, they might have taken the new policy as a criticism of the sitting judges. After Judge Spath dismissed Ary, the defense called Deputy Chief Defense Counsel Billy Little to testify for the purposes of impeaching a portion of Ary's testimony. Little informed the commission that during the introductory meeting described by Ary in October 2014, Ary raised the issue of pace of litigation—this is contrary to Ary's account. The "gist" of Ary's comments, according to Little, was "resourcing with an eye to moving the cases forward." On cross-examination, Little admitted that he was in the courtroom during the portion of Ary's testimony when he discussed this meeting, but Little explained that he left the room and did not watch Ary's remaining testimony because he suspected he "might be called as an impeachment witness." The prosecutor pressed Little on whether the purpose of the meeting was simply introductory, rather than to set resourcing policy, but Little pushed back, noting that the purpose "was to meet the new convening authority, and if the opportunity came up to say . . . we're a little short on resources . . . . and it certainly did come up." After a few housekeeping matters, the judge closed Wednesday's session by noting the uncertainty of the schedule for the rest of the week. Indeed, the commission ultimately did not have an on-the-record session on Thursday. Instead, Friday's session will be devoted to additional witness testimony depending on whether Judge Spath grants or the parties can agree on additional witnesses.