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Military Judge Hears Arguments Over Constitutionality of Charges Against USS Cole Bomber

In the military commission hearing of Abd al-Rahim Hussayn Muhammad al-Nashiri, there waits a potential death sentence. Al-Nashiri is the alleged al-Qaeda operative said to be responsible for the bombing of the USS Cole in October 2000. He is also one of fourteen high-value detainees currently being held in the detention facility in Guantanamo Bay. … Continued

In the military commission hearing of Abd al-Rahim Hussayn Muhammad al-Nashiri, there waits a potential death sentence. Al-Nashiri is the alleged al-Qaeda operative said to be responsible for the bombing of the USS Cole in October 2000. He is also one of fourteen high-value detainees currently being held in the detention facility in Guantanamo Bay.

On Wednesday, the judge allowed for Al-Nashiri to no longer be shackled to the floor when he meets with his attorneys, a practice which the defense argued “re-traumatized” Al-Nashiri as it reminded him of his time in secret prisons subject to torture at the hands of the CIA. On Thursday, in a Kafkaesque twist, Judge Pohl ruled that Al-Nashiri was not entitled to translations of the 100,000 or so documents to be used in seeking his death; disallowed defense counsel’s motion for reconsideration, stemming from an order by the judge for the defense to produce its “theory on the case,” prior to discovery of unredacted documents; and that Al-Nashiri need not be present at his hearing, presumably no longer subject to forced extraction from his cell if he chose not to attend.

The prosecution sat on the right side of the room, closest to the box in which the military commission sat. The government was represented by nine individuals and was led by Gen. Mark Martin. To their left sat the defense. Al-Nashiri is represented by four attorneys – two military, Lt. Cmdr. Stephen Reyes and Maj. Allison Danels; and two civilian, Rick Karmmen and Michel Paradis. Also at the defense table was Al-Nashiri’s full-time translator.

On Wednesday, by allowing Al-Nashiri to no longer be shackled to the floor, Judge Pohl effectively ducked having to rule on the First Amendment issue surrounding the closing of that hearing to the public, which would have involved Al-Nashiri recounting his torture at the hands of the CIA in secret prisons.

In anticipation of that argument, counsel representing a media consortium, David A. Shulz, a New York attorney who specializes in First Amendment issues, argued that such testimony should be heard by the public, marking the first time that a non-party attorney was permitted to make an argument before a Guantanamo military commission and an extraordinary step in the promotion of transparency in the military commission process. As Mr. Shulz noted, “while it is a short walk from the public gallery to this podium, it is an important recognition of the fact that the public has a stake in the openness of these proceedings.”

Mr. Shulz’s position rested on the argument that “the First Amendment of the Constitution constrains and sets the ground rules under which any hearing on that motion could … be heard.” By ruling that Al-Nashiri need not be shackled when consulting with his attorneys, details of Al-Nashiri’s treatment was not heard, nor was the battle over the First Amendment right waged.

On Thursday, the first interesting development of the day was the presence of Al-Nashiri in the courtroom. Previously, Al-Nashiri’s counsel brought a motion requesting that he not be required to attend the hearing should he so choose. Previously, if a detainee was scheduled for a hearing and stated he did not want to attend, extraction teams would forcibly remove the detainee and bring him to the hearing. In granting that motion, Judge Pohl stated that Al-Nashiri was not required to attend the hearing if that was his decision. However, he also commented that he gives great deference to the Joint Task Force (JTF) commander in running his detention facility and it was his prerogative to move a detainee from point A to point B as he saw fit even if it meant wasting resources to perform an unnecessary task. However, after listening to defense counsel’s concern that the JTF commander may elect to move him despite the judge’s orders, Judge Pohl stated that, should that happen, JTF may have to show that it was reasonable and not being done simply to “mess with the detainee”.

Despite the discussion of the motion yesterday and the potential for a day full of legal posturing today, Al-Nashiri decided to attend the hearing and there was no mention of a forced cell extraction.

The first motion on the docket was the defense’s motion on the constitutionality of the bar on the accused’s right to seek reconsideration. Judge Pohl kicked off the proceedings by asking Lieutenant Commander Reyes of Al-Nashiri’s defense team whether the motion was ripe. The defense’s motion rose out of an order by Judge Pohl for the defendant to produce its “theory on the case.” Judge Pohl has requested this document in order for him to determine what discovery the prosecution must share, in an unredacted manner, with the defense.

The purpose of the motion was to request that Judge Pohl not be restricted by the plain language of the Military Commission Act and instead be permitted to act in a manner suited to “protect the fundamental fairness of the proceedings.” Unfortunately for Al-Nashiri, the Judge ruled against the defense. Judge Pohl determined that there was nothing in the statute precluding him from sua sponte (of his own accord) reconsidering a ruling and it was, therefore, not necessary to determine yet whether allowing the defendant the opportunity to request that reconsideration was permissible.

This ruling caused one of Al-Nashiri’s attorneys, learned counsel Rick Karmmen, to make a comment for the record scorning the ruling as one that “demonstrates [the] kind of problems with this whole process” as it forces the defense to make its theory on the case in a vacuum, without knowing all of the facts and without the safeguard of judicial reconsideration. This, however, did not sway the Judge.

After several other motions regarding discovery of documents, the defense moved to request that the government provide translations of all documents provided for Al-Nashiri’s review. As the accused, Al-Nashiri has the right to meaningfully take part in his defense. In order to do that, the defense contended that he must have access to every document it is determined he be allowed to review, which amounts to approximately 150,000 pages. However, most of those documents are in English, which Al-Nashiri can’t read. Defense counsel contended that because they only have access to three translators who can only translate fifteen pages per day, equaling roughly 7,200 pages per year, Al-Nashiri is not being given a meaningful opportunity to participate in his defense as he will never be able to access all of the documents permitted to him. Therefore, his counsel contended, the government should provide translated versions of those documents and that the only reason they were balking at this request was due to the cost.

Judge Pohl, however, was not convinced. Siding with the prosecution yet again, Judge Pohl agreed that nothing in the statute states that the government be required to translate every document for the defense. Furthermore, he noted that “there are four attorneys in this case who all speak English, who all can read the material and discuss it with their client … and it is the lawyer’s job to look at the evidence to see how it is relevant to the case.”

And with that ruling, frustration boiled over in Richard Kammen once more and he again chided the court for its “transparently unfair ruling [to deny] Mr. Nashiri any right to effective assistance of counsel … and any rights he might have under the Fifth, Sixth, [and] Eighth Amendments to the Constitution.”

Mr. Kammen then began his next motion by stating he would be brief as it appeared the court was not interested in his experience as a learned counsel. The heated back and forth between Judge Pohl and Mr. Kammen felt like it had been brewing for days, if not weeks or months, culminating with Mr. Kammen’s statement that “if you [Judge Pohl] don’t want him [Al-Nashiri] to have effective assistance of counsel, deny the motion. Seriously …” Unsurprisingly, Judge Pohl took offense to this suggestion and told the court that he had ruled on motions on their merit and asked Mr. Kammen to simply move on.

The remainder of the afternoon passed without incident or excitement. Two more motions were brought in open court, a defense motion to hire an investigator in Yemen and another defense motion to request discovery of government expenditures, both of which were granted. Finally, after a short break, Judge Pohl concluded the week’s hearings by setting the next session for July 17.

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