This morning’s proceedings in the Nashiri case begin with standard procedural discussions, including noting that the accused waived his right to be present at that morning’s commission hearing. Military judge Air Force Colonel Vance Spath, allows the government to question the relevant Assistant Staff Judge Advocate to ensure that Nashiri was made aware of his right to attend the hearing and properly gave his informed consent to waive his presence. After Judge Spath is convinced that all the proper procedures were followed and that Nashiri did indeed waive his right to be present, he moves on to the meat of the morning’s proceedings: addressing motions put forward by the defense.
Judge Spath first addresses a defense motion to compel the production of the accused’s medical records, filed in August. The judge seems sympathetic to the defense’s request, and notes that he wants to deal with this issue relatively quickly. He argues that it should be “easy” to determine what records the defense should be able to see and what records both sides should be able to see: the defense should be able to see psychological records and medical records whereas the trial counsel should only have access to the latter.
There's undercurrent of frustration with the slow pace of the commission in today's hearing, and that certainly informs Judge Spath’s seeming annoyance with the amount of time that it has taken to deal with the proper triaging of medical and psychological records: “We have all these people who want this case to move forward, and we’re battling medical records of an accused being held facing capital charges, so let’s fix it.” In response, trial counsel wavers slightly, arguing that the separation of medical and psychological records could take some time. Judge Spath isn’t having much of that, repeating the phrase, “This is easy” five times. He ends the discussion on this issue by strongly counseling that this issue needs to be resolved “by March.”
The rest of the first morning session is spent addressing a defense motion to compel witnesses in support of an earlier motion to abate proceedings due to the destruction of evidence, namely videotapes that the defense contends would show that the CIA tortured Nashiri. The lead defense counsel, Richard Kammen, proceeds to speak at great length about the need for these witnesses and what he believes the videotapes would have shown. He first establishes the general need for the witnesses: “evidence comes from witnesses.” In the effort to create a robust trial record to convince the judge, or a later judge, that these videotapes are “so important and prejudicial, and the destruction is so flagrant and prejudicial that some form of dismissal or perhaps other relief is warranted,” witnesses are necessary in order to create an evidentiary record.
As Kammen moves on to why the four specific witnesses are requested, Judge Spath interrupts him to ask about the timing of the alleged destruction. The judge notes that the allegation is that the destruction was by a government actor, but not the prosecutor or investigator in conjunction, and wonders if that matters. Kammen responds that the distinction is not necessarily as black-and-white as the question presumes, because he believes that the evidence would show that Nashiri was named as an unindicted coconspirator in the investigations relating the bombings of the USS Cole. That matters because the CIA “knew who [Nashiri] was.” Kammen also argues that, most importantly, the actors in question were specifically told that they should not destroy the tapes because it was potentially exculpatory evidence. His argument goes as far as to implicate the White House:
I think there will be hearsay evidence that members of the House Intelligence Committee discussed with the CIA the exculpatory nature of [the videotapes], and that I believe – well, I don’t believe – I know that it went to the White House counsel, and I believe she advised not to destroy the tapes because they were potentially exculpatory.
This, Kammen argues, demonstrates the importance of the tapes and why they were should have been saved for future use in court.
He then goes on to provide justifications for each of the four witnesses named in the Defense’s motion. Turning first to former CIA attorney John Rizzo, he notes that Rizzo was well acquainted with the CIA’s enhanced interrogation program and that he indeed was part of the planning and implementation of the program. (Kammen notes, however, that “everyone in the CIA” was aware of the tapes and they became a source of concern after the infamous Abu Ghraib photographs were leaked.) He argues that Rizzo will testify that he advised former director of the CIA'S National Clandestine Service Jose Rodriguez not to destroy the tapes, though Rodriguez ultimately did just that. This communication, Kammen suggests, will speak to the “flagrancy” of the government’s conduct in destroying the tapes, which is an essential component.
Kammen next moves to the importance of Rodriguez as a key potential witness in demonstrating this same "flagrancy," especially given his destruction of the the tapes. Kammen also makes passing reference to Rodriguez’s book, in which he apparently references Nashiri as “the dumbest terrorist he had ever seen.”
Next up is the discussion of James Mitchell and Bruce Jessen, contracted psychologists with the CIA who designed much of the Agency's interrogation program. Kammen explains that the “landscape of knowledge” has shifted dramatically recently thanks to the publications of Mitchell’s book, “Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America.” (Kammen slides in a not-so-subtle dig at Mitchell, noting that the book was written with a ghostwriter.) Kammen turns to the text of Mitchell’s recent publication to make a key argument: witnesses are necessary to discuss these tapes and their subsequent destruction, because “written materials don’t capture it all.” In his book, Mitchell explains that to truly understand enhanced interrogation, “you need to talk to the people who were there.” Kammen agrees, saying that the commission should do just that: hear from the “torturers” themselves.
Ultimately, Kammen’s overarching point is borrowed from Mitchell’s own writings: the commission should have clarity on what was going on—how the taping worked, what was taped, and what was destroyed—and the only adequate way to do that is to actually talk to the people that were on the ground. Kammen, maintaining that this is a “big deal,” notes that these witnesses are necessary if the commission is to get at “the truth of things and we’re serious about having a real proceeding.”
Naturally, the trial counsel takes the opportunity to respond. Mark Miller, for the government, declines to address Kammen’s arguments directly. Instead, he focuses on the underlying motion, the motion to abate proceedings: “the sole issue before the court today is the appropriateness of granting an abatement, nothing more and nothing less.” Miller dismisses most of Kammen’s lengthy argument by contending that none of it was actually relevant to granting abatement. While some of what Kammen mentioned might be relevant to alternative, hypothetical pleadings, they simply are not germane here.
Judge Spath seems somewhat sympathetic to this argument, but also notes that if he does deny the motion, everyone knows that all the parties will simply revisit the exact same arguments later. Miller concedes, but nevertheless maintains that it would be better to revisit the issue later so “the issues are more succinct."
Given the opportunity to reply, Kammen is hardly surprised at the government’s contentions. In fact, he’s downright exasperated:
Seriously, that’s the discussion we’ve come to expect in this court. The government says you’re never right. The government says you’re never on time. The government says delay it again. The government says oh, wait until we get the discovery, which has been over two and half years. That’s exactly the discussion we expect to have, and that’s why this is so frustrating.
Kammen goes on, largely reiterating his earlier points about the necessity of creating a evidentiary record. The government opts not to reply and Judge Spath gavels the court to a short recess.
We pick up again mid morning for the second and final open session of the day, first tackling another defense motion to compel witnesses. This time, Assistant Defense Counsel Rosa Eliades present’s the defense’s case. The motion, she explains, is to compel witness testimony from three FBI Special Agents and one NCIS Special Agent who were all present during the 2007 questioning of al-Badawi who, the defense contends proffered statements that implicated Nashiri. The defense challenges the statement on two fronts: first, that it is “fruit of the poisonous tree,” in that al-Badawi was only questioned regarding Nashiri’s conduct after Nashiri was tortured and indicated al-Badawi as a connection, and, second that there was coercion at the time of al-Badawi’s statement itself. The defense contends that thee four witnesses named are necessary because all four were present when al-Badawi’s statement was taken and each signed off on the report detailing the statement.
Judge Spath asks the defense about timing: the U.S. government had known who al-Badawi was for a long time before this specific questioning. So why does questioning him later in time connect to the interrogation of al Nashiri? The defense explains that al-Badawi’s statement is “derivative because the information [the government] obtained from the torture of Mr. Nashiri was used to go back and reexamine Badawi.” Questioning the witnesses is essential to establishing a causal connection there.
The government, when given the chance to respond, notes that while there is a lot of agreement between the parties here, there is no need for all four witnesses. Indeed, Navy Lieutenant Cherie Jolly argues, this is a case of “post hoc ergo propert hoc” (after, therefore because of). Lt. Jolly challenges the motion, arguing that the defense cannot establish that al-Badawi’s 2007 statement is actually derived from Nashiri’s.
The final motion discussed is the defense’s motion to compel testimonial immunity for Abdul Al Salam Al-Hilah. The discussion over this motion is relatively brief and the defense and trial counsel are on complete opposite sides here. Assistant Defense Counsel Spears first lays out the three prongs required by RCM 704(e) in order for a court to compel a Convening Authority to grant testimonial immunity to a witness: (1) the witness intends to invoke the right against self-incrimination to the extent permitted by law if called to testify; (2) the government has engaged in discriminatory use of immunity to obtain a tactical advantage, or the government, through its own overreaching, has forced the witness to invoke the privilege against self-incrimination; and (3) the witness’ testimony is material, clearly exculpatory, not cumulative, not obtainable from any other source and does more than merely affect the credibility of other witnesses). Spears goes through these one by one, arguing that the defense has satisfied each. Immediately after, Navy Lieutenant Jonathan Cantil, for the trial counsel, argues that the defense has failed to satisfy each and every prong. Even after some back and forth between each lawyer and Judge Spath, there’s no common ground to be found. And thus ends the morning’s proceedings.