Author Archives: Charles R. Church

Numbers Don’t Lie

On April 5, 2016, Charlie Savage of The New York Times reported that two more detainees had just been transferred from Guantánamo’s detention facility, reducing the total to 89. Officials expect to transfer another 35 by summer’s end, which would bring the number to 54. This significant depletion, as will be seen, argues ever more powerfully for shuttering the prison.

Human Rights First tells us that the cost of running the prison facility in 2015 was $445 million, though the actual amount was higher, since that did not include the cost of Camp 7, which holds “high-value detainees.” That number is classified. Over the course of 2015 (as the year closed, the prison population had dwindled to 107 detainees), “the absolute minimum cost ranged between $3.7 and $4.2 million per year, for each detainee.” With the population due to be cut in half by fall from the year-end 2015 level, the cost per prisoner should double. Further, large capital outlays are impending: due to inadequacies in the technological infrastructure, $31 million has been budgeted for building an underwater fiber-optic cable for use by the military commissions and the prison; the military has requested an updated medical facility (with the aging prisoner population, medical costs are expected to skyrocket if the detention facility is not closed); since the entire detention facility was designed to be temporary, its infrastructure is beginning to crumble; finally, new courtroom facilities will be needed. Right now, pretrial proceedings are being conducted in only three cases, but more prosecutions are contemplated.   With only two courtrooms, logjams can be expected, so the Expeditionary Legal Complex will have to be enlarged.

Yet, at a Supermax prison in the U.S., the annual cost of housing prisoners is only $78,000 each.  It doesn’t take a math whiz to figure out where the prisoners should be. But Congress, many of whose members claim to be budget reduction hawks, ignore all this red ink, preferring demagoguery to sensible policy. Want to be convinced? On April 7, 2016, The New York Times told us that American prisons currently hold 443 convicted terrorists, including Zacarias Moussaoui, who was directly linked to the 9/11 attacks; Dzhokar Tsarnaev, one of the Boston Marathon bombers; and Umar Farouk Abdulmutallab, the “Underwear Bomber.” And yet those demagogues in Congress—attempting to gain political capital—assert that terrorists cannot safely be held on our own turf!

The al Nashiri Case Dawdles Along — in Fits and Starts

The Dzhokhar Tsarnaev terrorism case required just under two years from his arrest following the Boston Marathon attack to complete his trial. His sentencing hearing before the jury added another month. But Tsarnaev was prosecuted in a civilian federal court, whereas Nashiri has been charged before a military commission (MC) at Guantánamo, where vastly different realities prevail. The proceedings against Nashiri began with the filing of charges in September, 2011, nearly four years ago, and no one argues that he will be tried anytime soon. Indeed, probably you could fit another Tsarnaev prosecution within the time that will pass before the Nashiri trial even begins.

What progress has been made recently? Zero since March, if you gauge progress according to hours of court time. Even before that, the Convening Authority (CA) — the government official who not only convenes the MCs, but who also is responsible for their staffing and resources, among other duties — dissatisfied with the progress in the Nashiri and other MC cases — sent an Action Memo to the Deputy Secretary of Defense (DSD) recommending that, to speed them up, the DSD should direct that military judges presiding over MC prosecutions have no other duties in other cases, and order that they live full-time at Guantánamo; the DSD followed this advice. Alas, neither the CA nor the DSD seem to have considered the longstanding and strict proscription in military courts against exerting unlawful command influence over them, carried forward in the Military Commissions Act of 2009. One military case even describes unlawful command influence as “the mortal enemy of military justice.” Though the DSD by then had rescinded his directive, on March 14, 2015 Military Judge Vance Spath — to rid the Nashiri case of taint from the CA’s and DSD’s original action — disqualified the CA and his staff from any further role in the Nashiri case, and directed that the DSD appoint a replacement CA. Further, “to ensure that any last vestiges of taint” would be removed, he adjourned scheduled court proceedings, and warned that any similar efforts to improperly influence the trial judiciary “will likely lead to more drastic remedies.” Especially since the defense team had sought dismissal of the prosecution because of the CA’s and DSD’s transgression, no doubt Spath’s threat got the government’s attention.[1]

These antics represent merely the latest in a parade of strange doings in the Nashiri case flowing from the decision to charge him in an MC rather than a civilian federal court. To mention only two, Judge Spath dismissed one of the three sets of charges against the accused, not because they failed to allege a crime, but because an MC has no jurisdiction (that is, power) to try such offenses. The charges concerned the attack, allegedly orchestrated by Nashiri, on the French-flagged supertanker MV Limburg, a civilian vessel chartered by a Malaysian firm, and carrying Iranian oil. Judge Spath found that the government had failed to produce evidence, despite opportunities to do so, to support its contention that the attack took place as part of an armed conflict. On the government’s motion for reconsideration, Spath amended his order by making the dismissal “without prejudice,” meaning that the charges may be brought anew.

The prosecution filed an appeal to the Court of Military Commission Review (CMCR) seeking reinstatement of the dismissed charges, which prompted Nashiri’s defense team to file a petition with the D.C. Circuit Court of Appeals, asking that civilian court to disqualify two of the three CMCR panel members assigned to hear the appeal because their appointments violated the Commander-in-Chief and Appointments Clauses of the U.S. Constitution. After staying the CMCR proceedings, the D.C. Circuit heard oral argument on the petition, but has yet to rule.

On March 27, 2015, the prosecution filed another appeal to the CMCR, this time seeking review of Judge Spath’s order preventing the government from expanding its charges and specifications relating to the assault — again, allegedly planned by Nashiri — on the USS Cole in Aden Harbor by offering evidence of wanton disregard not only for the lives of the Cole’s sailors killed or wounded when the explosives-laden launch struck their vessel and those of its other crewmembers as well, but also for the lives of foreign nationals working to fuel and service the ship. Resolution of that appeal also must abide the D.C. Circuit’s decision on the accused’s petition to disqualify the two CMCR panelists.

On April 10, 2015, Spath decided that, because the CMCR’s resolution of the two appeals “will shape how this case progresses and is tried,” he would conduct no further hearings until either of the appeals is resolved. No one can predict how long that stay will continue, especially since the CMCR can’t decide anything until the D.C. Circuit rules on whether the CMCR panel of judges assigned to hear the appeals has been constitutionally staffed.

As Air Force Colonel (Ret’d) Morris Davis, former Chief Prosecutor of the MCs recently pointed out, after the CA was forced to leave, his interim replacement was the seventh to serve in that role since 2003. Further, six military lawyers have served as Chief Prosecutor of the war courts. “Think about that for a moment. If a professional football team was on its seventh head coach and sixth quarterback in less than a dozen years, that team almost certainly would be a loser.”[2]

The numbers confirm that verdict. All told, only eight detainees have been convicted by the MCs, and four of those convictions have been overturned, three fully and one in part. Compare that paltry record to the nearly 500 convictions rendered by civilian federal courts on terrorism-related charges.[3]

Colonel Davis is right: “we need to … end this litany of failure” in the MCs.

[1] On May 8, 2015, the defense filed its Renewed Motion to Dismiss for Unlawful Influence. However, the basis for the renewed motion is unknowable, as the papers remain under security review, so they are not yet available.

[2] http://www.nytimes.com/2015/03/28/opinion/guantanamos-charade-of-justice.html

[3] https://www.humanrightsfirst.org/sites/default/files/gtmo-by-the-numbers.pdf

Poland taught a lesson, while we refuse to learn

On July 24, 2014, the European Court of Human Rights unanimously ruled that, beyond a reasonable doubt, Poland had violated the rights of Abd al Rahim al Nashiri and Abu Zubaydah under the European Convention on Human Rights by allowing their transfer to a secret CIA black site code-named “Quartz,” located in Stare Kiejkuty in northeast Poland, where they were detained, interrogated and tortured. (In 2011, capital charges were filed before a military commission at Guantanamo against Nashiri for his alleged primary role in the lethal attack on the USS Cole and other war crimes, and Abu Zubaydah, for years held at Guantanamo, has been detained at various sites for over 13 years, while never being charged.) The court—the first anywhere to rule on the existence of the CIA’s secret prisons—entered money judgments in favor of the two prisoners ($114,000 for Nashiri, $148,000 for Zubaydah), and also found that, at the time of Nashiri’s transfer from Poland, there was a “real risk that his trial before the (U.S.) military commission would amount to a flagrant denial of justice” and the risk of a death sentence.[1] The court further found that the Convention requires Poland to seek assurances from the U.S. “that (Nashiri) will not be subjected to the death penalty.” Poland’s request to appeal was rejected.

In February, 2015, Foreign Minister Grzegorz Schetyna announced that Poland would make the required payments, stating: “We will abide by this ruling because we are a law-abiding country….” Then, on March 31, 2015, Christian Lowe of Reuters reported that Poland’s government, in compliance with the court’s order, had directed an official note to U.S. authorities seeking assurances that he will not be executed. The Polish Foreign Ministry stated that it plans to seek further assurances that neither Nashiri nor Zubaydah would be exposed to a “flagrant denial of justice.”

This last request, if made, certainly will fall on deaf American ears. Zubaydah, after all, has been imprisoned for over 13 years, during which time he has neither been charged nor tried, nor has counsel even been assigned to him, despite his many requests. A March 27, 2015 piece by the Miami Herald’s Carol Rosenberg listed the 7 remaining prosecutions envisioned by war court prosecutors, and Zubaydah was not included. As for the military commission circus which has been prosecuting Nashiri since 2011, please refer to my e-book, My Week at Guantánamo’s War Court, and my various articles and blog posts which appear on this site. In sum, we have been inflicting “flagrant denial(s) of justice” on both men for years, and no basis exists for believing that we will stop.

Unlike Poland, the U.S.—which often trumpets its “exceptionalism”—seems unwilling to be taught. When, at long last, the Senate Select Committee on Intelligence (SSCI) last December was able to release the redacted Executive Summary (ES) for its 6,700 page report on its study of the CIA’s Detention and Interrogation Program, it provided a rare chance for Americans to learn of the atrocities perpetrated by the CIA, in secret but in our name. However, four polls following issuance of the ES reported that from 51 to a shocking 59 per cent consider the CIA’s treatment of suspected terrorists justified. This is true, even though neither the 100-plus page statement of the SSCI minority’s views nor the similarly lengthy response by the CIA denies that we tortured plenty of people.

Yet the U.S. representative to the UN Committee Against Torture declared last November that: “We believe that torture, and cruel, inhuman and degrading treatment and punishment are forbidden in all places, at all times, with no exceptions.” The chasm between this statement and what the polls revealed may simply highlight the difference between an aspirational commitment by the Obama Administration and what most of our people really think. Even so, it brings to mind Ambrose Bierce’s definition of “hypocrite” in his famous “The Devil’s Dictionary”: “One who, professing virtues that he does not respect, secures the advantage of seeming to be what he despises.”
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[1] The commissions, at the time, were governed by Bush’s Military Order of November 13, 2001 and Rumsfeld’s Military Commission Order No. 1; in June, 2006 the U.S. Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557, 625, ruled that they “lacked power to proceed,” since their procedures violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions. As a result, Bush signed the Military Commission Act (MCA) of 2006, and President Obama approved a reformed MCA of 2009, which applies to Nashiri’s prosecution. See the main text for my opinions on the Nashiri case.

The CIA’s Family Jewels Revisited

In my From Tragedy to Farce—Redux post, I described how then-military commission Judge Pohl (Col. Vance Spath now presides; see my post: Pohl Replaces Self as Nashiri Trial Judge) had ordered the prosecution to produce a lengthy list of documents and categories of information regarding the CIA’s interrogation and torture of Nashiri at various secret black sites over a four-year period. One insider characterized the order to the Miami Herald’s Carol Rosenberg thusly: “It’s a nuclear bomb that may shut down the case,” because it required production of so many of the agency’s closely guarded secrets. The possibility that the CIA simply might refuse to comply was widely considered.

But not so fast. The government sought reconsideration from Pohl, which he granted while relaxing his original order in various respects. In crucial sections he reminded prosecution lawyers of something they (and at least that one excitable insider, it seems) evidently had overlooked: that a commission evidence rule granted to the government the broad ability to provide content summaries in lieu of actual documents. See June 24, 2014 Order AE 120AA in Nashiri case docket (http://www.mc.mil/CASES.aspx). The faithfulness of earlier CIA summaries to the truth, you may recall, had been challenged by Kammen: back in June, 2013, while in full cry, he argued to Judge Pohl: “The CIA certainly has a history of misleading prosecutors…(and it has) a history of misleading judges…and I think that pattern is continuing…. [W]hat we have now…is a series of summaries that…we will demonstrate are false…. [T]he summaries are false, they are misleading, they are woefully inadequate for any meaningful presentation in a capital trial.”

Another obstacle for Kammen lurked in a Catch-22 arising from that ability of the government to substitute summaries for the underlying documents. The military judge has authority to decide upon the adequacy of summaries, but once he has done that in specific instances he is prohibited by commission law from reconsidering his decision, even if facts coming to light later contradict the approved summaries. (Kammen on August 4, 2014 pronounced the summaries produced by then in response to Pohl’s CIA-related orders as “virtually useless.”)

Pohl had devised a workaround for this quirk in the military commission rules by allowing the defense to seek more discovery (production of documents and other information) from the government on the subject matter of approved summaries questioned by the defense. That, according to Kammen, was the genesis of the defense motion to compel the government to produce the information and documents on the CIA’s treatment of Nashiri. Such further discovery would enable the defense to argue in court about any inconsistency between approved summaries and this newly produced information. But without any deadline for the government to provide that new discovery in what lead prosecutor Gen. Mark Martins describes as an “iterative, back-and-forth process” (which to Kammen “implies a slow trickle of discovery, right up to the eve of trial), the defense attorney predicted disaster. Given the defense’s scarce resources, Kammen asked how the defense could comply with the court’s timetable for the case in light of this drawn-out process. (See http://www.lawfareblog.com/2014/08/84-session-5-things-120-part-two/ — Aug. 4, 2014 transcript of proceedings, pgs. 4778-4787.) And, of course, much of the new discovery doubtless will be provided in summary form, leading a body to wonder whether a devil’s circle has been created. If additional discovery is required to show the inaccuracy of those new summaries, and the CIA again produces only more summaries that may not be accurate and sufficiently detailed according to the defense, where and when does that circle end?

All this may seem to add up to a story only a lawyer could love. But what the CIA inflicted on Nashiri is vital to his case and his fate, both to enable the defense to challenge the admissibility of statements Nashiri made while a captive, and to mitigate his sentence (recall that death is one possibility) if he is convicted.

Back in August 2014, Kammen continued to push for production of the underlying documents, even though commission law stands in his way. But completely outside the existing rules, I wonder about a judicial system in which the defense team, each member of which has Top Secret clearance at least and is bound by both a court order and, potentially, criminal law not to disclose classified information, may not be allowed to see those documents. And why they should not have the complete, unredacted 6,000 page-plus report on the CIA’s interrogation, detention and torture of captives by the CIA’s Senate Select Committee on Intelligence? Kammen and others suggest a reason: the documents and report would reveal cruelties far more terrible than we know. Not simply water-boarding, mock executions and Enhanced Interrogation Techniques (all of which were inflicted on Nashiri, the first two while he was naked and blindfolded), but far worse torture techniques.

I’ll continue to provide updates on this crucial battle.

The Curious Case of Ahmed Haza al Darbi

Not only is the al Darbi case curious, but its outcome may greatly complicate Nashiri’s future. Here’s how and why.

On February 5, 2014, the Convening Authority of the Military Commissions referred charges against al Darbi to a commission. All charges involved his major role in the October 2002 attack off the coast of Yemen by an explosives-packed motorboat on the French supertanker MV Limburg, which was under charter to a Malaysian firm and laden with Iranian oil. The strike killed one person, injured a dozen others, and spilled 400,000 barrels of crude oil into the sea. All told, it caused about $45 million in damage, and shipping in the Gulf of Aden temporarily was shut down. But how does al Darbi’s case wind up as a prosecution for war crimes in a U.S. military commission? And were his alleged offenses against non-U.S. property owners and personnel part of the armed conflict between the U.S. and al Qaeda going on at the time? You’ll recall that Nashiri also has been charged with regard to the Limburg attack, and the same questions apply to his case. (See http://justsecurity.org/6807/al-qaeda-armed-conflict-france-malaysia-legal-question-heart-al-darbi-case ) But the cases have taken diametrically opposed routes with regard to those questions.

Despite the questions, only two weeks after the charges against him were referred, al Darbi pleaded guilty. Such a small time window powerfully suggests that negotiations on the plea deal had started well before the referral, and that the timing of the referral and the entry of the plea were orchestrated. In the bargain, al Darbi agreed to cooperate with prosecutors, which almost certainly means that he will testify against Nashiri with regard to the Limburg attack. To ensure such cooperation, his sentencing was deferred for over three years. (See http://justsecurity.org/?s=Al+Darbi+Pleads+Guilty ) Except, that is, for one thing: Judge Spath, who now presides over Nashiri’s military commission case, while facing a defense motion to dismiss all Limburg-related charges which pursued the issues I have described, dismissed them on a different basis altogether. (See AE 168G/AE 241C Order in Nashiri case docket: http://www.mc.mil/CASES.aspx; http://www.miamiherald.com/news/nation-world/world/americas/article1979349.html )

The government—no surprise—filed an appeal of the dismissal order to the Court of Military Commission Review (CMCR). To liven up matters further, Nashiri’s legal team is trying to disqualify two of the three members of the CMCR on technical though important grounds. That effort was turned back by the CMCR, but Nashiri’s team has taken the matter to the D.C. Circuit Court of Appeals. (See http://justsecurity.org/16395/al-nashiri-cmcr-limburg-charges ) Argument of the appeal before the CMCR has been stayed by the circuit court, pending resolution of the disqualification effort. (See http://justsecurity.org/17362/d-c-circuit-postpones-tomorrows-cmcr-hearing-al-nashiri )

One wonders whether, given these developments, al Darbi and his counsel are so happy with their plea bargain, which some predict will result in al Darbi’s being sentenced for 9-15 additional years. (See http://justsecurity.org/?s=Al+Darbi+Pleads+Guilty ) But the same question might be posed to the government lawyers, who accepted a deal banking on having al Darbi as an invaluable witness at Nashiri’s trial for the Limburg charges. No doubt, though, the attorneys for both sides were aware of the legal questions surrounding the military commission’s ability to try the Limburg charges before the deal, and took them into account when making it.

Stay tuned …

Pohl Replaces Self as Nashiri Trial Judge

Colonel James Pohl, Chief Judge of the Military Commissions, on July 10, 2014 detailed the Air Force’s chief trial judge Col. Vance Spath to preside over the Nashiri capital case being prosecuted by military commission, thereby relieving himself of that duty. In his order, Pohl cited his reasons: ensuring continuity of the proceedings and avoiding scheduling conflicts with the 9/11 case, where Pohl sits as trial judge. At least one doubter has wondered whether—like Colonel Peter Brownback, who was terminated as chief presiding officer over the commissions when he displeased civilian higher-ups by dismissing a case—his hand was forced on this change. After all, Pohl recently caused quite a stir, directing the prosecution to produce to the defense a treasure trove of top secret CIA documents providing details of Nashiri’s imprisonment, interrogation and torture at secret black sites over four years, despite the government’s insistence that summaries would suffice. That scenario would be highly unlikely, however, given that Pohl will continue to preside over the 9/11 case, in which defense counsel have piggybacked on Nashiri’s motion by demanding the same CIA documents for their clients. Pohl naturally is expected to enter a similar order in that case. As though he foresaw the doubter’s question, however, Pohl stated in the order: “The detailing decision was made solely by me….”

In my Ebook My Week at Guantánamo’s War Court, I gave Pohl high marks for his fine judicial temperament, patience and evident fairness during that week, and that was before he courageously ordered that CIA family jewels be delivered to Nashiri’s counsel. Will Judge Spath deploy those qualities to the same extent, or will the diluted justice inherent in military commission prosecutions detailed in my book be further impaired because a lesser judge will preside? In response to my tweet (@CharlesRChurch1) to a former chief prosecutor at the war tribunals, Air Force Colonel (Ret’d) Morris Davis, he replied: “I’ve known (Spath) for years. Good guy, lots of courtroom experience.”

Though brief, that provides a measure of assurance. Let’s fervently hope that Spath’s performance compares favorably to Pohl’s.

And Then There Were Four

What does a judge do when he’s presiding over the highest profile case at Guantanamo’s military commissions; the charges against all five defendants are based substantially on the same facts; the case has been dogged by delays, many of which relate to a single defendant; and he’s acutely aware that the survivors of the horrific attacks, and the blood relations of the many who died, feel painfully frustrated that no verdict has been rendered even though 13 years have dragged by since the crimes?

I am referring to the 9/11 case and Judge James Pohl, and he just dealt with that dilemma. He severed the charges against one of the defendants, Ramzi Binalshibh, charged with being a liaison between the aircraft hijackers and Al Qaeda’s leaders, according to a July 24, 2014 Washington Post piece.

Questions about Binalshibh’s mental competence had been raised years ago. But earlier this year, prosecutors asked to have him evaluated, after he repeatedly disrupted commission proceedings and had to be removed from the courtroom. Further, the FBI had interfered with his case by secretly interrogating two non-lawyer members of his defense team, triggering a potential conflict of interest between the accused and his lawyers. (See the prior Post on this page, “From Tragedy to Farce”).

Pohl’s order cited the need to find out whether Binalshibh has the mental competence to participate in a trial and to resolve whether he requires new counsel, on account of the FBI’s actions. And these matters are, in his view, “not expected to be completed in the near term.”
No doubt Pohl realized how heavy a price would be paid for his unusual decision. Now, in effect, he will have to try the same case twice, and Binalshibh’s trial will be delayed until, his lead counsel asserted, “a long time in the future.” Clearly, Pohl believes that accelerating the 9/11 trial is worth that price. Indeed, in an earlier action that also will expedite the 9/11 case, Pohl in his role as chief judge of the commissions recently replaced himself as presiding judge over the high profile al Nashiri prosecution, to avoid scheduling conflicts with the 9/11 matter.

Inside View of Torture and Courts

Charles R. Church

Charles Church observed the trial of
suspected terrorist Abd al Rahim al Nashiri,
and shared his observations May 10 in Salisbury. (Photo by Patrick L. Sullivan)

Thu, 05/22/2014 – 9:22am
By Patrick L. Sullivan

SALISBURY — Attorney Charles Church described the pre-trial maneuverings in the case of Abd al Rahim al Nashiri, a suspected terrorist who has been held by the United States since 2002, to an audience at the Scoville Memorial Library Saturday, May 10.

Church, author of the e-book “My Week at Guantanamo’s War Court” and a Lakeville Journal columnist, spent a week as an observer at Guantanamo in April 2013.

He said he had the choice of observing the al Nashiri case or the “more colorful” case against the men accused of planning the Sept. 11, 2001, attacks.

While the latter featured theatrical aspects such as a female member of the defense team dressing in traditional Arab clothing, he said he was glad to get the al Nashiri case in part because “the lawyers are fascinating.”

Church emphasized several times that the cases are being tried by military courts, not bound by the rules of civilian courts.

He quoted the lead defense attorney, Richard Kammen, as telling the judge, James Pohl, “We are making this up as we go.”

Al Nashiri is suspected of being in charge of the 2000 attacks on ships, including the USS Cole bombing. Church said after his capture in 2002, Nashiri was held in secret CIA facilities and tortured.

Nashiri was brought to Guantanamo in 2006 and has been there ever since.

“Torture is one of the elephants in the room in the case,” he said.

Some of the methods used to torture Nashiri are known, he continued. While naked and hooded, a power drill was operated near his head, and a pistol slide ratcheted.

The judge has ordered the government to provide full details of the interrogations. To date, the CIA has provided summaries.

Church said Kammen “went ballistic” in a secret session the defendant was not allowed to attend, arguing that the CIA has a history of misleading the court and that the summaries are false.

(He added that Kammen wears a kangaroo pin in his lapel, leaving no doubt as to his opinion on how the pre-trial process is proceeding.)

Kammen said the government is trying to hide the truth of Nashiri’s interrogation. Church quoted Kammen: “This desire for secrecy is the reason we are here, as opposed to a real court.”

Church said he found Pohl “estimable” as a jurist, but noted that the judge, an Army colonel, is employed under a one-year, renewable contract, and wondered if that might cloud his judgment.

Church described other aspects of the pre-trial process that would be very problematic in a civilian court, such as the discovery of listening devices hidden in the smoke detectors in the room the defense team used, or that the government had access to defense emails from a Department of Defense server both teams were using.

The rules are far different in the military courts. For instance, hearsay evidence is allowed at the judges’ discretion.

“How do you cross-examine hearsay?”

And the fact that Nashiri faces the death penalty was always on Church’s mind. “It is particularly sobering to watch a capital case. Films and television don’t evoke the same emotions.

“You’re looking at the guy they are trying to kill.”

Church said “my own lament” is that federal courts have tried about 100 terrorism cases, with a conviction rate in the high 90 percent bracket.

“So you can’t say that granting the accused more rights has gotten in the way of results.”

But, he added, Congress has banned the transfer of Guantanamo prisoners to the mainland.

“So we’re staggering along with these courts, where weird things always happen.”

TriCornerNews – The Lakeville Journal Co., LLC ©2014. All Rights Reserved.

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Charles Church to Talk About Experience at Gitmo

Litchfield County Times
Published: Friday, May 09, 2014

Charles R. Church


Charles Church. (Photo by Kathryn Boughton – Litchfield County Times.)

The souls of nations, like the souls of the people who make up those nations, are always in peril. Each moral or ethical decision we make contributes to the tenor of our communities and, by extension, our world. If verification of this concept is needed, contemplate how the words of our Founding Fathers have resonated in lands around the world in the past two and a half centuries as more and more countries have struggled toward democracy and increasing civil liberties.

Despite a somewhat checkered human rights past, the United States has often held itself up as a beacon, an embodiment of a land where there is “liberty and justice for all.” It is the gruel fed to Americans in their infancy, a firmly held belief that we are morally superior, generous and kindly in our relations with others. That self-assessment has been repeatedly challenged during our war-like history, but perhaps never more so than in the aftermath of 9/11 when a shaken nation determined it would relinquish some civil liberties for increased security and would ignore our principled instincts to engage in actions we would condemn in others.

Among the ethical casualties of that era was our abhorrence of torture and a turning away from habeas corpus, which guarantees a prisoner will be brought promptly before a court to ensure there is sufficient cause for him or her to be detained. And, even when trials of suspected terrorists have finally been held, the rule of law has been bent.

This Saturday human rights lawyer Charles Church of Salisbury will describe his experiences last June at Guantanamo as an observer of the pretrial proceedings in the capital prosecution of the Abd al-Rahim al-Nashiri, a “high value” detainee. His talk will take place at the Scoville Library in Salisbury at 4 p.m.

Mr. al-Nashiri allegedly captained Osama bin Laden’s “boats operation,” which lethally struck the U.S.S. Cole in Aden Harbor and attacked other ships. He was captured by the CIA in 2002 and held at black sites, before being transferred in 2006 to Guantanamo.

Mr. Church will provide a first-hand account of the commission’s proceedings and describe the major players in the case. He will also evaluate the kind of justice that military commissions dispense in our behalf. He says he came away disappointed in the military tribunal process.

He summed up his war court experience up this way: “I carried with me to Gitmo a deep skepticism about the war courts and departed even more troubled. Truly, as the lead defense counsel for al-Nashiri kept telling the judge, ‘We’re making it up as we go.'”

Mr. Church recently published an e-book titled “My Week at Guantanamo’s War Court,” which is available at Amazon’s Kindle Store. In a jacket blurb, Prof. Mark Denbeaux, counsel to Guantanamo detainees, writes, “Few people understand how dangerous the Military Commission proceedings in Guantanamo are to the rule of law as we know it. Charles Church has raised the alarm in a clear and compelling way that is a service to all.”

Mr. Church has dedicated his life to working in the law, helping to fight age discrimination experienced by American workers. After his retirement in 1999, he cast about for something to do with the rest of his life before reading “The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals,” a New York Times best book of the year, written by New Yorker political correspondent Jane Mayer.

“She wrote how the United States gave up its soul to fight the war on terror,” he recalled. “I read it and said, ‘I know what I want to do. I want to do this kind of work.’”

His quest to find an organization that could use his talents took longer than he expected, but he eventually found his way to Mark Denbeaux, director of the Seton Hall Law School Center for Policy and Research. Mr. Church is an alumni of Seton Law School.

“I called him and told him I wanted to help,” Mr. Church recalled. “He said, ‘Charles, there is a line of people who want to do this.’ I said, ‘Give me anything to do and if you don’t like it a lot, I will go away.’”

That first experience led to a fruitful experience and Mr. Church has received more and more work from the professor. His service led Professor Denbeaux to offer him one of the coveted non-governmental observer slots for the trial proceedings at Guantanamo. While there, Mr. Church saw many disquieting things that left him in such turmoil he was compelled to write his book.

Some of the difficulties with the “dysfunctional” court system he observed were subliminal impressions, he admitted. He noted that the presiding judge, James L. Pohl, is an Army colonel, while the prosecutor, Mark S. Martins, is a brigadier general. “Sometimes there was a feeling in court of ‘I outrank you,’” Mr. Church reported. “I don’t know if that is true, but there are observers who believe it is.”

The defense team, led by civilian Richard Kammen, has been made uncomfortable by the leak of 779 documents concerning Guantanamo detainees, some of which related to the defense. That leak led to a delay in proceedings while the defense recovered. “The prosecution said they didn’t read the documents,” Mr. Church said with a clear note of skepticism in his voice.

Even more serious is the physical condition and mental health of the prisoner. Mr. al-Nashiri was captured in 2002 and taken to black sites at unknown locations around the world where he was presumably tortured before being remanded to Guantanamo. “How would you feel if you were an Arab guy who 11 years ago was captured and spirited off and tortured for four years before being brought to Gitmo? You do not receive health care and you are kept there for years before two charges are brought against you.”

Mr. al-Nashiri has been reported to be suffering from depression and Post- Traumatic Stress Disorder. Carol Rosenberg, writing in the Miami Herald, has suggested that these conditions resulted from his torture and incarceration and would be mitigating factors in sentencing.

In the pretrial phase, Mr. Church said, some evidence considered to jeopardize national security was presented to the judge in secret. “Even the prisoner cannot hear this evidence,” he noted. “He is certainly entitled to all the evidence during his trial, but the pre-trial stuff he can’t hear. Mr. Kammen argued that he could not maintain the trust of his client when [court officers] go off to a locked room to talk about him.”

Also at issue for Mr. Church is the liberal use of hearsay. A tenet of a fair trial is  that the prisoner has the right to face his accusers, but in these trials there is a much broader interpretation of hearsay evidence. Mr. Church said that “al- Nashiri’s defense counsel has asked the judge how he can zealously defend his client when he cannot cross examine the sources quoted by witnesses. It has been a constant subject of debate.”

Mr. Church expressed admiration for both the prosecutor and the defense counsel. He noted that the prosecution of such cases has “soiled” military careers and that General Martins has given up future advancement to take on difficult cases that will stretch on until his retirement.

“He came to talk to us observers one night and conducted a real charm offensive,” Mr, Church said of General Martins. “It put me off, but in another sense, he is the real deal. He gave up advancement to do this.”

Mr. Kammen, who is working with fewer assistants than the military team, “is tireless and ferocious,” according to the observer. “I deeply admire him. He has dedicated his life to this kind of defense. He came to talk to us Friday night after a long week in court. He wasn’t so obvious about it. His complaint is the disparity in resources. The military can get anything it wants but the defense has to request funding for everything it needs, from paperclips to copy paper. They have to go to the judge and the government fights tooth and nail to deny it. They have been turned down.”

Since his return home Mr. Church has continued to monitor the trial, following current developments. This complicated writing his book because the topic remained “a moving target,” he said. The completed book is now available on Amazon.com.

“I oppose capital punishment,” he concluded. “If al-Nashiri is guilty, he should pay. But many feel that even if he is exonerated, he will never be free.” 

From Tragedy to Farce—Redux

I noted in a prior post the quoted title from a Miami Herald editorial on April 19, when it wrote about “a series of jaw-dropping revelations and rulings” from Guantánamo’s military commissions. In that post I described how, as reported by the paper’s Carol Rosenberg, the FBI had, according to a lawyers for a defendant in the 9/11 case, tried “to turn a defense team security officer into a secret informant.” Then I promised to write soon about Judge Pohl’s order directed to the CIA, which—so far—the agency has refused to say whether it will honor.

It has long been known that Nashiri—the alleged author of the lethal attack in 2000 on the USS Cole, among the war crimes charged against him—was captured and spirited away by the CIA to secret black sites beginning in 2002. There he was interrogated and tortured, until he was transferred to Guantánamo in 2006, where he remains to this day. Only fragments about Nashiri’s torture are publicly known. Not much more than that he was waterboarded, and interrogated at the point of a revving power drill (while hooded and naked) and a racked pistol near his head. Most of the rest remains highly classified.

Yet his torture will have paramount importance during his trial in at least two regards. The Military Commissions Act of 2009 (unlike its 2006 predecessor and Bush’s 2002 Military Order governing the first version of the military commissions, which the U.S. Supreme Court found unlawful), precludes from admission into evidence any statement produced by torture or by cruel, inhuman or degrading treatment. And Brigadier General Mark Martins, the chief prosecutor, has declared that the government will not offer any such evidence. But Martins already has staked out a major loophole to this vow, whereby the prosecution may use statements originally produced by torture. A statement may become voluntary, he has argued, after the passage of time from torture, where the accused is questioned in a different location, perhaps by other interrogators. “The point that I reject and the law rejects,” he said, “is that there can be no voluntary statements following an instance of coercion.”

Further, if Nashiri is found guilty, his torture would become relevant to the sentence to be rendered, whether death or otherwise. That is, using his lead counsel’s terminology, evidence of torture would be adduced to seek mitigation of Nashiri’s punishment.

Hence, in one sense it’s no surprise that on April 14, 2014, Judge Pohl—after an in-chambers argument on account of the sensitivity of the matters discussed—directed that the prosecution provide (among other things):

1. A chronology identifying where Nashiri was detained (think black sites) from the time of his capture until his arrival at Guantánamo in September 2006;

2. All documents showing the conditions of Nashiri’s confinement, and Nashiri’s condition when transferred to other locations;

3. The identities of medical personnel and interrogators having direct and substantial contact with Nashiri;

4. SOPs and guidelines on handling, transporting, and interrogating high value detainees at or between various facilities (again, think black sites);

5. All statements from interrogators, summaries of interrogations, interrogation logs and interrogator notes of interrogations of Nashiri and his alleged co-conspirators;

6. Un-redacted copies of documents memorializing decisions on requests to employ Enhanced Interrogation Techniques on the accused and all alleged co-conspirators.

Since the CIA undoubtedly is the repository for many if not all of these documents—after all, the agency operated the black sites—newspaper headlines have proclaimed that the order was directed to the CIA, not to the Prosecution in Nashiri’s case. See, for example, the April 17 article by the Miami Herald’s Carol Rosenberg, titled “Guantánamo judge to CIA: Disclose ‘black site’ details to USS Cole defense lawyers,” which points out that “the order sets the stage for a showdown between the CIA and a military judge,” should the agency refuse to turn the documents over. One person who had read the order before its release told Rosenberg: “It’s a nuclear bomb that may shut down the case,” because it covers so many of the agency’s closely guarded secrets. Lead defense counsel Richard Kammen stated: “We note that the CIA has lied to at least three federal courts, the 9/11 Commission and, according to the newspapers, Congress. This demonstrated history of lying clearly obligates us to do a full investigation.”

Defense attorneys in the 9/11 case, upon learning of Pohl’s order (he also presides over that case), have sought the same information about their clients.

Rosenberg reported further on April 22, that the CIA had declined to comment on whether the agency would comply with Pohl’s order.

Since, in effect, Pohl is ordering production of the CIA’s family jewels, my bet holds that—at the least—the agency will seek an interlocutory appeal of the order. If this effort fails, conversely, I wouldn’t bet that the agency will comply with the order.

Charles R. Church

April 26, 2014

From Tragedy to Farce

Such was the verdict of the Miami Herald’s editorial board on April 19, when it considered what it termed “a series of jaw-dropping revelations and rulings” from Guantánamo’s military commissions.

On Monday, April 14, attorneys for a defendant in the 9/11 case revealed that the FBI had interrogated a Defense Security Officer (DSO), and required him to sign a confidentiality agreement that established a “special relationship” with the bureau. According to Carol Rosenberg of the paper, Judge Pohl, who presides over both the 9/11 and the Nashiri capital prosecutions, abruptly recessed the first 2014 hearing in the 9/11 case, after defense lawyers accused the FBI of “trying to turn the defense team security officer into a secret informant.” One defense lawyer described how two FBI agents had arrived at the officer’s home, and asked who gave news outlets the unclassified prison camp musings of 9/11 defendant Khalid Sheikh Mohammad (KSM). Counsel told Pohl how the agents also asked “open-ended questions” probing for evidence of wrongdoing by 9/11 defense attorneys. According to a leaked portion of the motion filed by such attorneys under seal, the most immediate implication of the FBI’s actions “is that all defense team members have a potential conflict of interest between their loyalty to their clients and their interest in demonstrating their innocence to FBI investigators.”

In response, Judge Pohl issued an Interim Order directing any defense team member contacted and/or interviewed by the FBI or other government agency concerning any defense-related matter to disclose such to lead defense counsel, irrespective of any non-disclosure agreement signed. The court also appointed a Special Trial Counsel to investigate in behalf of the government. Such counsel filed a preliminary report on April 21 stating that, contrary to the impression of defense counsel, the FBI is not investigating the disclosure of KSM’s writings to the media. The actual purpose of the investigation was described by counsel in a separate filing provided only to Pohl, so it remains unknown to us. Further, the FBI had taken steps designed to insulate persons involved in the investigation from the 9/11 case’s prosecution team.

Matt Apuzzo of The New York Times wrote a front-page piece titled “Covert Inquiry By F.B.I. Rattles 9/11 Tribunal” on April 19, stating that the FBI’s inquiry “was a reminder that, no matter how much the proceedings at the island military prison resemble a familiar American trial, the invisible hand of the United States government is at work there in ways unlike anything seen in typical courtrooms.” He spoke to Yale Law’s military justice professor Eugene Fidell, who told him: “There’s one person pretending to be the judge, and two other agencies behind the scenes exerting as least as much influence.” He was referring, no doubt, to the FBI and the CIA.

I’ll write about Judge Pohl’s ruling concerning the CIA in a future post.

Charles R. Church