Case Coverage: Military Commissions

This Week at the Military Commissions, 3/15 Session: In Case You Have to Testify to it 14 Years Later

By Cody M. Poplin
Monday, March 20, 2017, 8:00 AM

It’s 8:59 am on Wednesday morning and the military commission convened to try Abd al Rahim al Nashiri, accused of plotting al Qaeda’s attack on the USS Cole in 2000, is set for business. Today, FBI agents will identify evidence—mostly fiberglass and wires collected aboard the Cole in the days following the attack.

Military judge Air Force Colonel Spath gavels us into session. Nashiri, the man on trial, is not present. But the prosecution, the defense, and all parties present yesterday are here again. And Carol Rosenberg, the Dean of the Guantanamo Bay press corps is tweeting live updates. We’ve even had several days of productive pretrial hearings. Believe it or not, things seem to really be humming here at GTMO—an all too rare occurrence.

Back to business. Nashiri has voluntarily waived his right to be present, as he did yesterday as well.

Richard Kammen, defense counsel for Nashiri, rises to address a few preliminary scheduling matters. He also notifies the court that the defense has filed a petition for certiorari with the Supreme Court regarding the denial of a writ of mandamus by the D.C. Circuit. Kammen notes that it it “surprising the universe of information concerning the torture inflicted on Mr. Nashiri that is now public.” Kammen also advises the court that he is filing a motion regarding the government’s failure to produce evidence relevant to Nashiri’s defense.

Judge Spath sums up a few more preliminary matters, and then announces that he is planning to put together a trial order for 2018. He suggests that come 2018, everyone will be spending a lot more time down at GTMO. Spath also estimates that it is going to take months to seat a military jury to hear the trial.

With that, Judge Spath calls the first witness to the stand. First up is Tracy Kneisler, who testified yesterday. Assistant Defense Counsel Rosa Eliades begins her cross-examination, beginning with questions regarding Kneisler’s equipment. The cross talk is confusing at first. It seems Eliades is asking about equipment that Kneisler does not remember bringing or collecting from the airport. Kneisler does not remember missing any equipment, which she says she would recall.

Kneisler testifies that when she arrived at the scene of the bombing, the New York team of FBI agents was already present. That Evidence Response Team included Dayna Better Sepeck and Jane Rhodes, both of whom were involved as the custodian of records.

Eliades now asks about the evidence room. She wants to know what it was like and where it was located. Did agents really call it the “theatre?” Kneisler isn’t sure about what people called it, but remembers that it was an air-conditioned interior compartment of the Cole. She also notes that it was capable of fitting at least ten people. Oh, and there must have been chairs because she remembers sitting down. But she was only there for a day, so it’s all a little fuzzy.  

Kneisler confirms that the only people she remembers seeing in the room were the eight agents on her team and the two from New York.

Now Eliades wants to know what Kneisler had with her when she went to collect evidence. Kneisler had evidence bags, a sharpie, some gloves. She doesn’t recall what else. But she remembers that used the sharpie to record what she collected and the time it was collected.

Kneisler then walks us through the procedure for collecting and bagging evidence. Items were collected from the scene and sorted into bags; then, once the bags were full, they were sealed and taken down to the evidence room. Evidence collection personnel would then assign the piece and item number. But she doesn’t recall whether there was an evidence log or not. She tells Eliades that a log is a norm or “best practice,” but that it isn’t required.

“Why is it good practice?”, Eliades asks, clearly building to something here. “Because you might have to testify to it 14 years later,” says Kneisler.  But Kneisler also notes that one could reconstruct an evidence log since all the information is recorded on the evidence bags anyway. It merely helps administratively.

Now Eliades wants to know why Kneisler was reassigned off the ship following the first day. What did that decision look like? It seems the FBI team supervisors asked her to go search one of the houses in the city. She notes there were several scenes and she worked a number of them. If she wasn’t at one, she was at another. There was not exactly a lot of idle time. Kneisler returned to the ship on October 22, 2000. So she was there on the dates of the 16th and 22nd.

Eliades turns to prosecution evidence number 41. How did Ms. Kneisler find it?

Kneisler says she does not remember how it came into her possession, but a diver must have given it to her since it was collected underwater. Eliades, digging in now, asks, “Would it have been helpful to have that documented so that you could remember?” She continues, “Isn’t it important how you came across that piece of evidence since you didn’t yourself retrieve it?” Kneisler admits that it is.

Has she processed many scenes where she was the original person in the chain of custody but not the person who discovered the item?, Eliades asks.  

In fact, Kneisler has. For example, at the Pentagon on 9/11. Sometimes, evidence from a scene must be “sifted” away from that scene in order to determine if there is valuable evidence from within the larger material. But in those instances, Eliades posits, Kneisler was able to at least specify from where the evidence was retrieved. Kneisler agrees.

Eliades pushes harder here, now. “Is that even your handwriting?”, she asks. She gets a mixed answer. Kneisler says that one part is her handwriting, the other isn’t.

Eliades now wants to talk about four other exhibits to which Kneisler testified.

Regarding the first, Eliades is confused about the dates. If Kneisler was not on the ship on 10/18/2000, how could she initial for this piece of evidence’s chain of custody? Was she asked to sign it twice, since she knew she would not be there later? Kneisler denies this—she had no idea where she would be the next day.

Then why did she sign the bag twice on the original date?

Kneisler interjects, “I didn’t—the handwriting for the 10/18/2000 is not mine.”

She signed twice, but did not date the second signature line. It appears she did the same for the other three piece of evidence, too. But the bags are not the official chain of custody record, which is actually a separate form.

Eliades concludes her cross by asking whether or not Kneisler knew if FBI Special Agents Jane Rhodes-Wolfe and Dayna Better were always together in the evidence room. Kneisler doesn’t know, and no, she doesn’t have pictures from within the room either.

Trial Counsel Mark Miller rises for re-direct.

“What sort of information does an evidence log contain?”, he asks.

Kneisler tells him that it contains the item number, its description, where it was located and who collected it. In this case, all of that was on the evidence bags. She says that the integrity of the evidence was in no way affected by the presence or absence of an evidence log.

Miller now asks about prosecution evidence 41. Where did Kneisler get the information regarding where it was located? She doesn’t recall, but she would have been told by someone else. To the best of her knowledge, evidence was being collected underwater by divers and brought up to deck to be sorted. She participated in the sorting on the deck.

Eliades is back up for re-cross. She wants to know more about the evidence log, though there doesn’t appear to be much more to say. It’s a piece of paper that includes all the evidence located on the evidence bags—an administrative tool. Eliades pushes: she wants to know if it isn’t also a form of documentation, too. “It documents the same information as is on the bag,” Kneisler says.

And with that, Ms. Kneisler is relieved from the stand and the court takes a 10 minute recess

***

We resume as scheduled.

The prosecution calls FBI Special Agent Edmond Cronin to the stand. After a few questions regarding training and background, Mark Miller turns us to the Cole.

Cronin confirms that when he arrived in Yemen shortly after the attack he was the only Boston-based agent. The rest were from New York and Washington Field Offices. Cronin was tasked to work with Agent Kneisler.

Miller asks Cronin if anything sticks out from that first day aboard the ship. Cronin replies, “The complete destruction of the galley. The gaping hole that was on the side of the ship.”

Even so, Cronin says that he was quickly provided a space to work on the deck, where they began to look for items that would not be “native” to a U.S. warship—particularly pieces of the exploded device.

Miller wants to know what the scene was like. “Was it a difficult scene to work?”

Cronin sets out the details: it was 110 degrees, the ship was struggling to keep power, sailors were missing, divers were in the water looking for the bodies of missing sailors. He doesn’t say it, but from his cadence he intimates chaos.

Cronin then explains how the FBI teams collected evidence at the scene of the Cole. He notes that generally Agent Kneisler marked the bags once they were full and sealed. At the end of the day, the evidence would be taken from the evidence room off the ship to the beachhead.

Cronin travelled with the evidence when the evidence was brought back the the United States. He testifies that when the aircraft carrying the evidence landed overnight in Germany, he worked with Air Force crew to secure the aircraft with a lock to insure the evidence wasn’t tampered with.

Now Miller walks Cronin through several pieces of evidence. They discuss the evidence—“miscellaneous small pieces” and “pieces of black plastic”—and the significance of various notations on the evidence bags regarding location, discovery, and chain of custody, all recovered by Cronin and Kneisler.

After verifying the information on the bags, Miller rests and Defense Counsel Navy Lieutenant Jennifer Pollio rises for cross-examination. Pollio wants to know if there were any explosive examiners aboard the Cole with Cronin arrived. She says there were two, Leo West and Don Sachtleben.

Pollio quickly rotates. Why was Cronin delayed after he landed? Cronin tells her that “it was the process of entering the country of Yemen.” Even so, Cronin says that the delay on the tarmac did not delay investigatory efforts since they would not have begun until sunrise anyway.

Pollio has a few questions regarding the evidence collection room. Cronin remembers the room a bit better than Kneisler. He says it was 15 feet wide, 30 feet long. It had chairs too. And it was definitely a movie theatre; there was a screen in the front of the room. But he doesn’t know how the evidence was arranged in the room. He also doesn’t have a clear memory of whether or not the evidence was taken directly from the theatre room to shore.

Pollio wants to know if all the evidence that was collected that first day was also removed from the Cole that first day. Cronin thinks so, but doesn’t appear sure.

Cronin also testifies that there were members of the crew assigned to help investigators determine what was and was not “native” to the ship, but he does not remember asking them for assistance.

After a few final questions regarding the flight back to the United States, Agent Cronin steps down from the stand.

Next up is Special Agent Kevin Finnerty. Miller walks the court through Finnerty’s employment history as well, which includes extensive investigatory training and experience. Finnerty testifies that upon arrival in Aden, the Yemeni military would not allow his investigatory team to disembark the aircraft. After negotiations and an agreement to allow Yemeni authorities to review their equipment, however, they were allowed off and into the country. Oddly, the Yemenis then ran the equipment through an x-ray machine that was not working. He does not remember them going through the actual equipment.

Finnerty testifies that his team leader, Garrett McKenzie, did an initial survey of the scene when they arrived in order to map out the investigation. Agents began their search along the shoreline because “they were still doing an assessment on aboard the ship.” He tells the court that he does not remember recovering anything of value from the shoreline.

He acknowledges watching FBI and Navy divers collecting evidence from under the Cole. Once the evidence was sifted on the ship, it would be put on the deck. Once on deck, Navy engineers or other crew members would assist in determining what belonged on the ship and what was foreign.

Miller then introduces government exhibit 220, pictures of the evidence pile from the galley. Finnerty recognizes it. He tells Miller that the galley was “the most difficult [scene] I’ve worked,” because he and other agents had to remove the bodies of deceased sailors “piece by piece.”

He describes a gruesome scene: There were active sailors aboard the ship; they were sleeping on deck; the ship was struggling to stay afloat; it was 100 degrees and 100 percent humidity; the air conditioning was nonexistent; and all around was “decaying flesh.” He then details even more graphic depictions of the investigation and recovery of sailors’ remains.

All the while, the ship was not stable, he says. He notes that the ship had a 20-by-20 foot hole in its hull that was constantly letting water in. He describes the power going off several times, causing the pumps to stop. At those points, he says he could “feel the entire ship start listing.” On at least one occasion, the ship caught fire.

Finnerty then describes the evidence collection and chain of custody process, which largely reflects what was already in the record. Finnerty too identifies evidence for the record and acknowledges that he recovered it. More fiberglass and some miscellaneous metal, which he suggests is from the boat that targeted the Cole. Each piece of evidence introduced has the correct item numbers and carries Mr. Finnerty’s signature.

Near noon, Judge Spath calls a recess for lunch.

***

After lunch we are back in session for another round of evidence identification. Agent Finnerty is still on the stand.

He identifies a number of new pieces of evidence, each of which was collected because it did not belong on the USS Cole. And as with the other pieces, each bag of evidence carries Finnerty’s signature. This time though, we’ve moved on to “miscellaneous wires.” The information on the evidence bag here also matches the appropriate chain of custody forms.

After a few more pieces of evidence, Miller rests and Defense Counsel Kammen begins his cross-examination.

He begins by asking about what the Emergency Response Team, of which Finnerty was a member, has pre-packed for evidence collection. Does the team have bags “ready to go with the . . . materials they would need if they were called away?” Finnerty equivocates, but indicates there were no pre-packed bags ready for evidence collection.

Kammen wants to know about the Yemenis at the airport too. He gets the same response as before. Kammen then quickly pivots to the first few days of the search. Were there briefings? If so, who conducted them? To what area was Finnerty initially assigned? Was any record kept of who was assigned to where?

Finnerty does his best to answer each question—mostly, it turns out, he cannot recall. And while he does remember seeing the sifting process, he doesn’t remember how many sifters were present. But someone from the Cole crew was standing there telling collectors which pieces were from the Cole and which were not.

Things get a bit comical for a moment since neither Finnerty nor Kammen appear to know what is the bow or aft of the ship. They resort to “pointy end” or the “round end” to clarity where on the deck the evidence collection tent was located. Even still, Finnerty cannot remember which tent on the deck was the evidence collection tent.

They again walk through the evidence collection process. This time though, Kammen wants to know what happens after the evidence was bagged, sealed, and signed. Finnerty says that the evidence would then be sent down to the evidence room, which was below deck. Finnerty also notes that when he sealed the bags, he would attach tape to the seal and initial the tape so that he knew he had sealed the bag. And here we are, 17 years later, with the tape still there showing that Finnerty sealed the bag.

Kammen now asks about the swabbing of the evidence. He wants to know more about that process. Finnerty tells him that procedure is to do the swabbing before collecting the evidence in order to preserve the chemical residue from the blast. Finnerty says that he thinks the swabbing was done before he arrived at the Cole.

And with that, Kammen ends his questioning and Finnerty is released from the stand. The court takes another 10 minute recess.

***

Colonel Spath calls the proceedings to order again at 2:29 pm.

Jane Rhodes-Wolfe is called to the witness stand. Trial Counsel Miller tells her he’d like to discuss the “evidence custodian duties” that she may have performed.

Rhodes-Wolfe tells the court that the evidence room was a “briefing room” somewhere below deck, but that she probably couldn’t find it today. Even so, she knows they were able to secure it at night. And at the end of the day, they would take a boat from the ship to the beach with the evidence. Rhodes-Wolfe too identifies several pieces of evidence, confirming her signature as the evidence custodian on each file.

Once she has identified the evidence, Miller rests and defense counsel Eliades begins her cross examination.

Rhodes-Wolfe tells Eliades that it took a few days for the evidence team to secure an off-ship evidence container. The container was placed in a secure area on the beach. But she doesn’t recall whether it was climate controlled.

She also now recalls some of the evidence room. It was certainly a briefing room with a screen and maybe 20 chairs towards the back. And again, they kept it locked.

But could somebody have come back and signed an evidence form without Rhodes knowing? Rhodes-Wolfe doesn’t think so, but she wasn’t in the room 24 hours a day, so to answer would just be conjecture. And she clarifies that there were times when other people were in the room with her and Ms. Better.

Now Ms. Eliades has a few questions about prosecution evidence 41C. Why, exactly, does the chain of custody log show a two-day “lag” between collection and when it was accepted for storage. Rhodes-Wolfe isn’t sure—it could have been at the drying station, but it’s hard to remember any individual piece of evidence after this many years. Eliades wants to know if it was at the drying station, would it have been secured? Again, she isn’t sure. It could have been, but she doesn’t know.

With that, Eliades has no further questions and Ms. Rhodes-Wolfe is excused.

The prosecution calls FBI Agent Dayna Better Sepeck to the stand. She too outlines her employment history and qualifications.

She then recounts a similar story as the others with regards to the initial arrival in Yemen. Yemeni authorities were not “very friendly,” to say the least, she says. But they moved forward without too much trouble, and were quickly at the ship. Upon arrival, it was shortly decided that she would serve as an evidence custodian.

Sepeck then moved to locate an evidence control room. She and a member of the Cole walked the ship looking for a place that was still dry and would be secure. She eventually settled on the briefing room as the best option.

Miller wants to know what it was like on the Cole during the investigation. Sepeck describes a scene similar to those that proceeded her, except her telling is more personal. She remembers the difficulty of the body recovery, and how, “every time a victim was recovered, everything stopped and we honored that victim.” She says that everyone would come up to deck, stand at attention, and honor the fallen, the lips of other crewmembers “quivering so hard” as they tried to hold in their emotions. These circumstances forced the evidence team to make adjustments, she says.

Miller changes his line of questioning now—he wants to know what would happen when someone brought Sepeck evidence. She explains that as a preliminary matter, she would complete a 192 chain of custody form. Then the evidence would be maintained in the evidence control room until it could be moved to the beach.

Sepeck too identifies several pieces of evidence in a fairly uneventful line of succession, confirming her signature on each bag and form and noting the date and time it was received.

Miller does want to examine a few discrepancies however, at the end of his questioning. He advises Ms. Sepeck that the date and time of receipt on a number of pieces of evidence does not match that listed on the chain of custody form. Can she explain why?

Sepeck begins by highlighting that each piece of evidence for which there is a discrepancy is recorded for the same period of time between October 18th at 2:00 and 4:00 pm, even though the forms show they were taken in on the 16th. She cannot recall what happened, but it is clear there is a pattern and she likely had a reason for the adjustment.

With that, Judge Spath calls a ten minute recess.

***

The court returns from recess and defense counsel Eliades begins her cross-examination. Sepeck, of the evidence collection room aboard the Cole, is still on the stand.

Eliades begins her questioning with a review of Sepeck’s experience in evidence collection, but quickly turns to the Cole. Does Ms. Sepeck remember the timeline of her involvement? Did she ever leave the ship to work another scene? Sepeck cannot remember exactly, but she does remember processing a house in Aden at some point. Her job was mostly to serve as the evidence room custodian.

Eliades asks Sepeck if “anyone else had access” to the evidence room. Sepeck can’t say if anyone else on the ship might have had a master key, but the only people she knows were in the room were her and her assistant.

Sepeck says that they didn’t keep a record of when the evidence was removed from the room and taken to the beach either. But she remembers that there was an evidence recovery log. They used it to track every piece recovered from the Cole. Of course, the last time she saw it was in Yemen. She turned it over to to someone from the Washington Field Office when she left the country.

Eliades changes course just a bit. “Did [Sepeck] maintain any documentation of people who entered this evidence room?” Sepeck says no, and she doesn’t know how many people entered the room, but the majority were FBI agents. “The only documentation that we did in that room were the evidence logs and the 192 chain of custodies,” she says. Did Sepeck see anyone else handling the recovery log? She says no. Only she completed the logs.

Sepeck walks the court through the evidence room. It was small, as she’s indicated, but had several separate areas. She doesn’t want to “wager a guess” on its dimensions, but she remembers at least two chairs and some desks. The “meeting room,” however, was different from the evidence room. The meeting room had a “whole bunch of chairs.” The evidence room may have been connected to it, but she cannot recall.

Eliades now wants to know about the discrepancies between the bags and the chain of custody log. Did Sepeck document anywhere why she would consistently mis-date the bags? Again, she doesn’t, but she tells Eliades that it “doesn’t change the chain of custody—it doesn’t change the fact that I received the item when I received the item.” The official chain is what is on the green sheet, not the bag, she says.

Eliades pushes again. She says that it must indicate some change. Sepeck again says no. It only means that she was notating something. She cannot say what, and Ms. Eliades seizes on this. She asks if the FBI’s procedures would require recording that kind of adjustment. “There aren’t procedures,” Sepeck replies, “there’s guidelines.” And those guidelines are complied with according to the situation at hand. Has Ms. Sepeck heard of the 12-step program, the “12 guidelines for collection?” Eliades asks. She says yes, but again underscores that they are “best practices that you hope to be able to follow if you are able to.”

With that, Eliades rests. She has no further questions.

Trial Counsel Miller rises for redirect.

“So we’re clear, did you tamper with or alter any of the evidence that you took into your custody?”, he asks.

“No, absolutely not.”, Sepeck replies.

He’s finished now, as well.

Judge Spath now still has a few questions, though.

In a circumstance different than the Cole, “where [she] had the ability to secure evidence in a room where [she was] the only one who had access, [she] would do that,” correct?

“Absolutely,” Sepeck says. But in this instance, she found the best option available on what was, quite literally at the time, a sinking ship. “I don’t believe anybody did anything with that evidence; I don’t believe anybody touched it,” she says.

Spath also asks Sepeck to clarify the evidence control log. She remembers turning it over to someone in the Washington Field Office, right?  She says yes; that would have been protocol since Washington was running the investigation. But she hasn’t seen it since.

And with that, Judge Spath calls the commission in recess until the morning.