Guantanamo Bay, Cuba — In the first of three days of military commissions this week at Guantanamo, Judge James Pohl made quick work of the defendant, accused terrorist Abd al-Rahim al-Nashiri’s motions. Al-Nashiri, waterboarded while detained at a CIA black site prison and, according to an investigation conducted by the CIA’s inspector general, interrogated at the point of a gun and a power drill, is accused of orchestrating the attack of the U.S.S. Cole in 2000 and faces a possible death sentence at trial.
Judge Pohl’s decisions and comments throughout the course of the day revealed a Military Commission at Guantanamo decisively favorable to the prosecution. In addition to the prosecution’s well-known ability to proffer evidence that would otherwise be excluded as hearsay (which did not play a role in today’s motions) the rules governing the use of experts reared its ugly head near the conclusion of today’s proceedings and left lawyers, members of the media, human rights groups and other observes asking pointed questions about the validity of Military Commissions.
Judge Recusal/Additional Voir Dire
Al-Nashiri’s first motion of the day, which was denied within the first 45 seconds of the hearing, requested that Judge Pohl recuse himself or, alternatively, to allow for an additional voir dire of Judge Pohl. The crux of the defense’s argument is that Judge Pohl has a vested interest in prolonging the duration of the military commissions—and this trial in particular– because he is on a year to year contract, meaning that he will continue to derive payment for his work, only for as long as he has work, i.e., when the trials end, so will Judge Pohl’s appointment.
Of particular importance to the defense was establishing a record for appellate review, and though the motion to recuse or allow for additional voir dire was denied, the questions became part of the record by defense counsel prefacing the list with: “May I put on the record the questions we would have asked you?” A response of yes allowed counsel to place, among many others, questions concerning Judge Pohl’s appointment and tenure, including the criteria for terminating his appointment, whether such criteria is public, and whether the decision is made on an ad hoc basis or if there is a framework in place for denying or renewing his assignment. The judge did not answer these questions.
Considering conflicts of interest, perceptions of fairness and the “insecure” nature of Judge Pohl’s position, defense counsel noted that “history will judge all of us as to whether we measure up or not.”
In response, the prosecution effectively answered the defense’s argument for recusal, contending that while Judge Pohl has an obligation to recuse himself if he cannot fairly decide the issues on the merits, he also has an equally strong obligation not to recuse himself if he can decide the issues fairly. Judge Pohl’s confirmation that the motion would be denied led to several family members in attendance to utter a simple, concise, “good.”
The defense’s second motion sought to provide notice that Mr. Paradis would no longer be representing al-Nashiri. Judge Pohl treated this as a provision of notice rather than a motion.
Taking on a more personal tone, the defense’s third motion consisted of two parts. The first, to send a current picture of al-Nashiri to his family to show his current health and physical condition, Judge Pohl approved with counsel to work out the details. The second part of the motion, to allow al Nashiri to be shown a DVD containing a message from his parents recorded via Skype by his counsel, was denied. Judge Pohl, citing Guantanamo protocol concerning detainee mail, said that al-Nashiri’s parents will have to send the DVD through regular mail and that only if such is denied will defense counsel be able to move to show al-Nashiri the DVD. Judge Pohl suggested, quite strongly, however, that if detainment officials did not allow the DVD to reach al-Nashiri, defense counsel could base a successful argument on its need to establish a relationship with their client’s parents.
The next motion before the Court was al-Nashiri’s motion to compel discovery of prosecutorial resources in addition to detailed counsel. In short, al-Nashiri requested information detailing the number of people working for the prosecution, including their position and organization, for purposes of establishing parity (or a lack thereof) between the opposing sides. Judge Pohl was quick to point out on questioning that parity is measured by the adequacy of the defendant’s resources, not by the comparison of the prosecution’s resources against those of the defendant. In a surprise move, however, Judge Pohl granted the motion requiring the prosecution to disclose its resources on the condition that the defendant similarly discloses the number of people working on its case and their respective positions. Disclosure of this information is due by August 3.
Tension in the courtroom increased during the arguments concerning the availability of expert witnesses to defense counsel. Al-Nashiri requested that the government fund the defense’s hiring of Nancy Hollander as an expert in Classified Information Procedures Act (CIPA) litigation. Judge Pohl frankly suggested to defense counsel that such an expert was unnecessary because attorneys are expected to master the subject matter of any litigation in which they are involved. But those comments were soon overshadowed by the prosecution’s use of its own CIPA expert.
It was difficult to watch the disparity in knowledge and resources in play. If that were not enough, shockingly, Judge Pohl questioned the prosecution concerning CIPA, even asking for clarifications on the law from the prosecution because he, admittedly, was not an expert.
The defense, critically disadvantaged without its own expert, was left unable to meaningfully refute. Although Judge Pohl reserved his decision on the matter, it appeared unlikely that al-Nashiri will be allowed to have an expert in this field of law.
Unfortunately for al-Nashiri, the disfavorable rulings did not end there. The next motion before the Commission was al-Nashiri’s motion to compel the funding of Dr. Elizabeth Loftus as a consultant to aid the defense.
Specifically, Dr. Loftus is cognitive psychologist and expert on human memory and would advise counsel with regard to temporal and reliability issues regarding memory and its malleability. In support of the motion, defense counsel bluntly stated, “We are not scientists.” Nevertheless, Judge Pohl adamantly stated in response that defense counsel should be able to show the deficiencies of human memory through proper cross-examination. Regarding the assertion that it has the ability to compete against the prosecution’s consultation with experts, defense counsel quickly retorted, “It’s not apples and oranges, it’s apples and rocks.”
Al-Nashiri needs the Commission’s approval to hire an expert for consultation purposes; Judge Pohl’s unwillingness to recognize the importance of such an expert makes al-Nashiri’s chance of success on this motion appear slim.
Listing of Prosecution’s Experts and Expert Testimony
Al-Nashiri’s final motion of the day sought to compel the prosecution to advise the Commission and the Defendant as to the possible subject matter of the prosecution’s expert testimony and to disclose the names and contact information of any expert witnesses the prosecution knows will testify at trial. This motion quickly became a circular argument, displaying the absurdity, but reality, of the prosecution’s position: The prosecution has a duty to investigate any and all information that could be relevant to the case at hand. This means that the investigative process is ongoing and that, theoretically, the process may never come to an end. This makes it difficult, if not impossible, to set a trial date. The prosecution requested permission from the court to provide such material (the names and contact information of prosecution’s experts) 90 days before trial. But as Judge Pohl repeatedly pointed out, there can be no trial date if the investigation and discovery is ongoing. Judge Pohl, to his credit, acknowledged that the longer the prosecution waits to turn over such information, the greater the chance of success al-Nashiri will have in requesting an extension to respond to the information.
Eric Miller is a third-year law student at Seton Hall University School of Law and a Fellow of its Center for Policy and Research. He holds an undergraduate degree in Diplomacy and International Relations from Seton Hall University where he was a member of the Brownson Speech and Debate Team.
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