Wednesday, November 9, 2011

No Plea From Nashiri, But Lots Else

We've just concluded the arraignment of al-Nashiri and a follow-on press conference involving all of the parties, including some family members of the victims and one USS Cole crewmember. I'll provide greater detail in subsequent posts, but for now, the key developments and some optics:

1. Al-Nashiri arrived in the courtroom with a phalanx of coast guard members. Two individuals wearing latex gloves guided him to his spot at counsel table. Al-Nashiri was wearing a white prison uniform, which I have been told may mean that he has been compliant. He was not wearing any restraints, and Judge James Pohl made a point of saying that it would remain this way unless it was necessary to revisit this policy. At one point, the judge also indicated that members of the commission may draw negative impressions from his prison uniform, although he was entitled to wear it. Al-Nashiri indicated that he understood that he could appear in civilian garb in subsequent sessions. Al-Nashiri seemed to have a good rapport with his defense team, although he also conveyed a bit of a cocky attitude, which rubbed some observers the wrong way.

2. After several preliminary issues were resolved or discussed (see below), it came time for the arraignment. Al-Nashiri waived the reading of the charge sheet and reserved his pleas and motions at this time. So, the arraignment ended with no formal plea.

3. Apparently, an issue had arisen in an earlier "802 conference" (i.e., a conference held in camera) that one of al-Nashiri's assistant detailed defense counsel, Michel Paradis, may have a conflict of interest. The issue emerged as a result of an "off hand" comment by a member of the prosecutorial team to the effect that Paradis is also appellate counsel in the al-Bahlul case. Al-Bahlul is named as a co-conspirator in the al-Nashiri case. A discussion ensued in which it was surmised that al-Bahlul is not likely in jeopardy on the al-Nashiri conspiracy charge given how broadly the conspiracy was alleged in his own charge sheet. The judge then turned to the defendant and explained the he had the right to conflict-free representation, but could waive any apparent or actual conflict of interest, bearing in mind that this particular lawyer may experience "divided loyalties." In particular, the judge noted the concern that al-Bahlul might offer to cooperate for a lighter sentence and could give Mr. Paradis privileged information relevant to this case. Al-Nashiri said several times that he understood the issue and wanted to proceed with Paradis on his team.

During this exchange, Cuyler v. Sullivan was invoked, which held that when multiple defendants are represented by the same attorney in the same case, a defendant must show that an actual conflict “adversely affected” counsel’s performance in order to establish the type of conflict that would constitute a denial of effective assistance of counsel. This was one of several reference to federal law during the proceeding, everyone's point of reference. This conflict dispute comes on top of another challenge brewing in the al-Bahlul case. The defendant there refused to mount a defense at trial and received a life sentence (the longest adjudged to date). This has raised the question of whether Paradis was actually authorized to appeal on his behalf.

4. Rick Kammen, the defendant’s learned counsel, was then offered an opportunity to voir dire the judge. He indicated that he was asking questions at the request of his client. In so doing, Judge Pohl confirmed that

  • al-Nashiri was presumed innocent until proven guilty;

  • he has never discussed this case with the Convening Authority;

  • he has never had ex parte communications with the prosecutorial team;

  • his role is to ensure a fair trial within the applicable rules;

  • if/when confronted with gaps in the operative law, he intends to look to case precedent, analogize from other bodies of law, and use his best judgment;

  • his views on the death penalty are irrelevant and will not interfere with his role presiding over the commission;

  • sentencing decisions are made by the members of the commission, so his personal views on appropriate sentences are irrelevant;

  • the defendant is entitled to introduce any evidence he deems to be mitigating, subject to challenge from trial counsel;

  • he understands torture to be defined by law, subject to counsel briefing him on the operative definition;

  • if public officials ordered his torture and will not be prosecuted or punished for their role in his mistreatment, members of the commission may be so instructed;

  • he did not have an answer for the question of whether the United States had forfeited its moral authority to apply the death penalty by virtue of torturing the defendant; and

  • he intends to follow the rules of evidence and admit that which is admissible.
Kammen declined to challenge him as presiding judge. Kammen's questioning revealed that the issue of al-Nashiri's pre-trial treatment will be front and center to their defense (see our prior coverage here).

5. With respect to the government's motion for two protective orders (governing classified and sensitive information), the judge declined to sign these prior to the arraignment, notwithstanding the prosecutor's request in this regard. He indicated, however, that he intends to finalize the protective orders next week, which would enable discover to commence. In particular, he expects "section 3" disclosures (prior statements of the accused) to occur quickly. As I'll discuss in a subsequent post, the defense challenged only pieces of the proposed protective order in their briefs. They, too, want the order in place so they can begin discovery. (So far, the defense has received nothing from the prosecutor, including al-Nashiri's medical records).

6. The judge indicated that he would allow a remote closed circuit TV feed to Fort Meade in Maryland, for the media, members of the government, and the general public, and at the U.S. Naval Station in Norfolk, VA for family members of the victims and survivors. Kammen argued that the general public should be entitled to view the proceedings. The judge agreed in principle, subject to access to the two installations and space availability. (His written order in this regard is now available here).

7. With regard to the "meaningful acquittal motion" (see prior coverage here), the judge attempted to frame the motion as an instruction issue and thus potentially premature at this stage. Kammen insisted that interim decisions about discovery and disclosure (especially of sensitive or classified information) might be impacted by the fact that the defendant will not be released even if he is acquitted. Kammen invoked Witherspoon v. Illinois, which held that a state statute allowing the dismissal of all potential jurors with mere qualms about the death penalty violated the defendant's due process and jury trial rights, although individuals who indicate they will refuse to apply the death penalty can be dismissed for cause. Kammen indicated that there may be commission members who will not want to participate in a process they consider "meaningless" since the defendant will simply be detained under a law-of-war framework if acquitted.

Kammen also argued that the government should admit the possibility of detention following acquittal for the sake of transparency, which he deemed "the language of the day." Trial Counsel Anthony Mattivi, detailed from the Department of Justice, argued that this issue was "unripe" and that the defendant's motion conflated the military commission process with the habeas process proceeding in the federal courts under a different burden of proof and operative standard. When pressed on the question of whether a commission member might "backward plan" his or her decision on the case if it was known that al-Nashiri won't be released, Mattivi assured the judge that the commission members would follow the law as given by the judge. At this point, Mattivi clearly indicated that he wanted the defense to be able to mount the same defense that he could mount in federal court. It will be interesting to watch if he remains true to this aspiration.

In the end, Judge Pohl declined to rule on the motion on grounds of it being premature. However, he indicated that the defense was entitled to raise the issue if it impacts on other aspects of case preparation.

8. With respect to the motion from the defense to be able to request expert assistance from the Convening Authority ex parte (in order to protect attorney work-product and case strategy), there was some question about whether Judge Pohl even had power to order the Convening Authority (Retired Navy Vice Adm. Bruce MacDonald) to allow such requests. In the end, everyone in the courtroom seem to have concluded that he does (with Trial Counsel expressing some reservations on this point), but that he did not have the power to order the Convening Authority to grant the relief requested (i.e., to pay for expert assistance pre-trial).

Apparently, in two prior instances, the Convening Authority had refused to allow the defense to make an ex parte requests for such assistance. The issue was resolved when the two sides agreed to submit a joint letter to the Convening Authority agreeing to the proposed ex parte system and asking the Convening Authority to reconsider his prior position on this point. Everyone also concurred that once the defendant decides to utilize a particular expert as a witness, disclosure obligations kick in to protect against surprise and trial by ambush. Trial Counsel also reminded everyone that if it is necessary for the expert to travel to the island to meet with the defendant, there will inevitably be some disclosure of the individual's identity. He also pledged, however, that his office would not seek out such information. Mattivi stressed that his office does not want to invade attorney work product, a position that runs counter to his colleague's position on the next motion considered.

9. Finally, we reached the question of the attorney-client privilege (see our prior coverage here). Navy Cmdr. Andrea K. Lockhart took the podium and proceeded to defend the practice of the new commander of the military commissions, Rear Adm. David Woods, to "cursorily review" or "scan" mail marked as legal (she refused to concede that such review required anyone to actually "read" the documents in question) for "contraband." She explained the need to screen for not only physical contraband (such as staples or incendiary material), but also printed contraband, such as the names of court personnel or witnesses, escape plans, or other classified information that might appear in attorney correspondence. Her mantra was that such a content screen was crucial

for national security, force protection, and safety
and explained that, in the past, improper materials had been sent to other detainees and marked "legal mail." Eventually, Thomas J. Welsh, staff judge advocate for JTF-GTMO, was called to the stand to provide insights into the origins of the new policy and the way in which the review of mail was conducted.

Judge Pohl almost immediately signaled his hostility to the impugned practice. Indeed, on several occasions, he took over the questioning from detailed defense counsel Stephen Reyes, who handled this motion with passion and verve. Judge Pohl pressed Lockhart and Walsh on how someone could "scan a document for content" without reading it. In addition, he asked why counsel could be trusted in face-to-face conversations not to convey "verbal contraband," but could not be trusted not to do so in writing. Lockhart, rather feebly, argued in reply that the intrusion was less with respect to written materials, which struck a difference balance between the attorney-client privilege and the imperative national security concerns, and that the commander's judgment in this regard was entitled to deference. She also argued that any policy had to be "even-handed" in light of past violations; Judge Pohl retorted that there was nothing "even-handed" about punishing this defense team for the misdeeds of others. The nail on the coffin of the prosecutor's case was definitely laid when Reyes solicited testimony that some of the individuals conducting the review were linguists from J-2 department: intelligence.

It was no surprise that Mattivi did not argue this motion; no doubt he found it distasteful in light of the stark departure from federal practice. Indeed, at times, it appeared that Lockhart represented the prison and its commander rather than the government in her argumentation. Walsh also seemed uncomfortable with the process, and essentially admitted that it was a decision of the commander. At one point, Reyes drew giggles from the courtroom when he asked for a "cursory review" of the legal advice he had provided Woods. In an irony no one missed, Lockhart immediately asserted the attorney-client privilege. Although Judge Pohl clarified that there is no attorney-client relationship in question, Reyes did not pursue this line of questioning (much to the chagrin of those of us in the audience).

The judge made a ruling from the bench granting the defense motion subject to the following. The prison is to develop a policy for clearly marking attorney-client privileged material. The JTF is to review this mail only to ensure that it is properly marked and contains no physical contraband. They are not to read the contents.

10. Finally, the court asked the prosecution when it would like to commence trial. Mattivi suggested February 2, 2012--a mere 3 months away. The defense indicated it would be ready a year from now, at the earliest. The judge scheduled a telephonic hearing in December prior to a January in-person hearing. The judge indicated that a first order of business would be to set a briefing schedule, especially for

systemic issues unconnected with the facts of the case.

11. At a superficial level, this proceeding looked very similar to any hearing you might attend in federal court. However, as soon as you scratch the surface, the idiosyncratic nature of the commission proceedings becomes immediately and starkly apparent. For one, no defendant would ever have had to file motions demanding that prison guards not read attorney-client privileged communications or seeking to file ex parte requests for expert assistance. Nor would the question of whether a meaningful acquittal could be achieved ever be raised. Judge Pohl gave the impression of being an independent thinker, committed to providing an intrinsically fair process, although he indicated several times that he was constrained by the operative procedural rules. Moreover, it was clear that there are gaps in the procedural scheme that will need to be filled as we move forward. Counsel instinctively reached for established law in these circumstances, highlighting the question of why we are all in this parallel judicial system at all.

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