Accused USS Cole Bomber Excluded From His Own Military Commission Hearing Because He Does Not Have Top Secret Clearance

Gunatanamo Bay, Cuba—Last week, press, NGOs and even the defendant, Abd al-Rahim al-Nashiri—facing the death penalty in this case as the alleged mastermind of the USS Cole Bombing– were excluded from the hearings before the Military Commission. Regarding the defendant’s absence from the closed hearing, Army Brig. Gen. Mark Martins told reporters that al-Nashiri “does not have a clearance.”

As we learned one day later from the presiding Judge Pohl, the defense had requested that the prosecution relinquish secret and classified evidence regarding al-Nashiri’s arrest in 2002 in Dubai and his detention in secret CIA prisons prior to his 2006 transfer to Guantanamo.

Excluded from the hearings last Wednesday, on Thursday al-Nashiri chose not to attend the hearings, the outcome of which could have national implications for the public’s access to the trial and establish a precedent for how future cases before the Commission proceed.

The day’s hearings proved to be suspenseful and, at times, convoluted. With al-Nashiri absent, all eyes were focused on Judge Pohl and the legal tightropes which both the defense and prosecution walked. Judge Pohl reserved his decisions on all motions.

Improper Referral, Voir Dire, and a Panel that ‘Numerically Favors a Death Sentence’

The first motion before the Commission was Mr. Nashiri’s motion to withdraw the charges based upon an improper referral by the Convening Authority, Admiral Bruce MacDonald. Defense counsel contended that the Convening Order issued by the Convening Authority to the judge on how to conduct voir dire of and empanel potential jurors ultimately dictates who and how many people will decide the fate of Mr. Nashiri. In addition, the Defense stressed to Judge Pohl that because the number of empanelled jurors was unusually limited, the Convening Order creates “a panel that is numerically — Your Honor, numerically favors a death sentence.”

The jurors selected will first determine whether Mr. Nashiri is guilty or not guilty before deciding the second issue of whether he will be sentenced to death.

Defense counsel further objected to the “micromanaging” of the commissions as improper because it is an Under Command Influence (UCI) violation. They argued that the Convening Authority might has well have been in the courtroom to say, “Your Honor, Judge Pohl, these are my members. I have given you 12 members. I have given you 25 additional members. You will conduct voir dire of all 37 members at one time.” This directed voir dire stands in stark contrast to the vast discretion military judges historically have had in conducting voir dire. Defense counsel also submitted that the Convening Authority’s referral was an ultra vires act, meaning it was beyond the powers afforded to him. “You go to any court, court-martial, Article III court, state court, and supposedly here in military commission, it’s the military judge’s plenary responsibility for voir dire,” defense counsel explained.

Prosecution countered that the Judge could exercise discretion in the way he conducted voir dire and empanelled a jury to ensure a fair trial and that this, not dismissal due to improper referral, would be an appropriate remedy under the circumstances if the judge were so inclined.

Starting out as a seemingly simple discussion on the procedure of picking a jury, the oral arguments quickly unraveled into mass confusion as all parties, including the judge, struggled to articulate exactly how the voir dire and jury selection process is supposed to work. As Judge Pohl bluntly stated in response to an explanation concerning the UCI issue proffered by the prosecution, “I’m not exactly quite sure how it will work in accordance with the rules. But that’s a separate issue.”

Violation of the Appointments Clause

The next motion of the day was Mr. Nashiri’s request that the charges be dismissed without prejudice because the Convening Authority was improperly appointed and was therefore without the authority to convene this military commission. Article II, Section 2, Clause 2 of the United States Constitution provides that the President shall appoint Officers of the United States by an with the Advice and Consent of the Senate. This Constitutional safeguard is designed to ensure democratic accountability and prevent the insulation of Officers from public opinion and the power of the electorate.

When the Convening Authority exercises sole discretion, such as referring charges to the commission, the Secretary of Defense cannot stop it, the defense argued. Mr. Nashiri contends that the Secretary of Defense has created the office of the Convening Authority with the authority of a principal officer of the government but utilized the minimally accountable procedures used for General Service employees. Defense counsel argued in its brief to the court, “Never in the history of the Constitution has one bureaucrat exercised so much governmental authority over life and death with so little democratic accountability.”

The prosecution’s response was relatively short and to the point: First, Congress vested appointment power in the Secretary of Defense, and, second, Secretary of Defense Robert Gates appointed Admiral MacDonald to be the Convening Authority. Thus, the prosecution concluded, the appointment was in full compliance with the Constitutional requirements. Judge Pohl took the motion under advisement.

Media Access

The third motion before the Commission was Mr. Nashiri’s request that the video feeds of all the proceedings of this Military Commission be made available to media outlets that wish to broadcast the Commission proceedings. A ruling in favor of the defendant would, presumably, allow individuals worldwide to watch what happens in this remote forum.

Defense counsel began its argument by stating, “[W]e don’t request any greater intrusions into the process than already exists.” The proceedings are already recorded for transmission via closed circuit television (CCTV) at Fort Meade and Norfolk for members of the media covering the hearings, official observers, and family members of the victims of Mr. Nashiri’s alleged crimes.

When asked by Judge Pohl, defense counsel admitted that there is not a constitutional right that requires televising a court hearing. However, it was contended that Mr. Nashiri has “the right to assert the public’s right [of access] under the First Amendment.” After conceding that the public does not have a right to see every trial, the defense argued that “there are probably trials that are so important and so significant that the public’s constitutional right to see them may well exist.” The argument was not supported by any legal authority, but counsel explained what he called a “presumption of regularity” in both state and federal courts. Essentially, state and federal courts throughout the United States are so similar in their structure, security, and processes that the average American understands how courts across America function. The Military Commission, conversely, is uniquely situated in a foreign country on a U.S. military base with heavy security surrounding the courtroom. Additionally, the processes are far different than what you find in an Article III court, including the crucial fact that you have to have special security clearance to not only gain access to the courtroom but also to reach the island.

The government’s response was two-fold. First, the prosecution stated “that the public trial rights are satisfied so long as some members of the public and some members of the press have the opportunity to watch these proceedings and to report on their observations.” This standard was said to be satisfied because a handful of representatives the media and of non-governmental organizations (such as myself under the auspices of Seton Hall Law School’s Center for Policy and Research and its Transnational Justice Project) were present, either in the courtroom or viewing the proceedings through CCTV. Second, the prosecution argued that granting the motion would result in a disastrous physical effect on the courtroom. This argument lost its merit after a series of questions from Judge Pohl made blatantly clear that there would be no more physical intrusions in the courtroom than there already are because it was currently being filmed for CCTV and Mr. Nashiri’s motion simply sought to give the media access to the recording, not to allow members of the media to film it themselves.

Certainly, the public’s access to the Commission’s transcripts provides some degree of transparency. However, as Judge Pohl aptly explained, “These things are not the same.”

Responding to the defense, Judge Pohl explained the dilemma he faces: “[A]t the end of the day I’d have to either defer to the Secretary of Defense, out of the rule that he wrote, or overrule him and do it under some other authority that I find that supersedes his authority.” The “other authority” he was referring to would have to be the Constitution unless, of course, the Secretary changes the rule.

Judge Pohl seemed to support the public policy behind broadcasting the proceedings, citing precedent that “the public has a First Amendment right to know what the government is doing in its name.”

Compelling Translation

Mr. Nashiri’s final motion of the day, which was filed a week ago on July 13, 2012, was a request to compel the timely translation of relevant discovery into Arabic for him to read. Specifically, defense counsel had identified documents, amounting to 1,535 pages, as relevant and necessary, predominately for building its mitigation case – a tremendously important aspect of any capital punishment trial.

The Convening Authority requires the defendant to specify the exact documents that are subject to the request and to provide specific reasons as to why they should be translated. Defense counsel objected to the rule because the Convening Authority’s office is “getting into information that is protected as work product, attorney privileged information.” Defense counsel elaborated on its predicament, explaining the first problem is that the disclosure is being made to a third party, the Convening Authority. The second most important problem arises if the Convening Authority denies the request after counsel provides specific documents and reasons. The only recourse would be to go before the Commission and to go through the government’s counsel. This is an unacceptable alternative because the defense attorneys would thereby reveal their work product and strategy to the government – they very thing they are trying to avoid.

The prosecution, having reserved the right to file a supplement brief after oral arguments because of the limited time between the filing of the motion and Thursday’s hearing, had a simple response: “There is nothing that mandates translation of discovery. There’s no case [law].”

The prosecution proffered that the government has provided resources to effectuate Mr. Nashiri’s right to meaningfully participate in this commission hearing. These resources include a full-time translator assisting defense counsel, which, according to the prosecution, should be sufficient.

The defense challenged the notion that one translator can effectively translate and discuss with Mr. Nashiri over 1,500 pages of documents in a timely enough fashion to benefit the litigation. Failure to translate the documents, according to the defense, will jeopardize counsel’s ability to provide effective representation.

Judge Pohl’s tough, poignant questions to the prosecution suggested they are climbing up hill. However, the strength of the government’s position cannot be fully ascertained until a written brief is submitted to the court.

The next round of hearings in Mr. Nashiri’s case will take place October 23-25.

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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1 Response for “Accused USS Cole Bomber Excluded From His Own Military Commission Hearing Because He Does Not Have Top Secret Clearance”

  1. Webster Hogeland says:

    Thank you for these reports Eric Miller, and good job getting yourself in there. I hope readers will go past the slightly sensationalist headline and get to the picture of the Judge you present: A decent, thoughtful guy trying hard to do an almost impossible job.

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