UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [The R.M.C. 803 session was called to order at 1001, 31 2 October 2017.] 3 MJ [Col SPATH]: 4 This commission is called to order. Trial Counsel, Mr. Miller, let's account for the 5 government representatives and make any announcement regarding 6 the transmission of these proceedings. 7 TC [MR. MILLER]: Good morning, Your Honor. Present for 8 the prosecution are Brigadier General Mark Martins; myself, 9 Mark Miller; Colonel John Wells; and Major Michael Pierson. 10 In addition to detailed counsel, we have at the 11 counsel table Master Sergeant Vanessa Pichon, who is one of 12 our paralegals; Staff Sergeant Kevin Creel, again, a 13 paralegal; and our analyst, Parker Smith. 14 Additionally seated in the back, Your Honor, we have 15 Patrick O'Malley of the Federal Bureau of Investigation, 16 Joseph Castellano of the Federal Bureau Investigation, and 17 Supervisory Special Agent Amanda Strickland. 18 These proceedings are being transmitted by 19 closed-circuit television to the locations authorized in your 20 order. 21 22 23 Thank you. MJ [Col SPATH]: Thanks, Mr. Miller. Lieutenant Piette, I see that learned counsel, Mr. Kammen, and the two assistant defense counsel, Ms. Eliades UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10015 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 and Ms. Spears, are absent. 2 the defense team you need to account for on the record other 3 than yourself? 4 DDC [LT PIETTE]: Do you have any other members of Yes, Your Honor. Present for 5 Mr. al Nashiri are myself, Lieutenant Alaric Piette, JAG 6 Corps, United States Navy. 7 Article 27(b) of the Uniform Code of Military Justice. 8 addition, we have present Ms. Brandi Janes; Ms. Kristina Hon; 9 Tech Sergeant Travis Gale; Mr. Roosevelt Roy; and the I'm a lawyer within the meaning of In 10 translator. 11 Baker, United States Marine Corps; Colonel Wayne Aaron, United 12 States Army; and Mr. Phil Sundel. 13 14 15 16 17 18 Additionally present is Brigadier General John MJ [Col SPATH]: Aaron and Mr. Sundel, are they of record for Mr. al Nashiri? DDC [LT PIETTE]: No, Your Honor. They are -- Brigadier General John Baker is the chief defense counsel. MJ [Col SPATH]: I understand. Is he entering an appearance for Mr. al Nashiri or not? 19 DDC [LT PIETTE]: 20 MJ [Col SPATH]: 21 DDC [LT PIETTE]: 22 MJ [Col SPATH]: 23 With regard to General Baker, Colonel No, Your Honor. Okay. And the same for the other two? Yes, Your Honor. All right. Thanks. Mr. al Nashiri, I'm going to talk to you about your UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10016 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 rights to be present and your right to waive your presence at 2 any hearing. 3 You have the right to be present during all sessions 4 of a commission; this includes any contempt proceedings 5 against anyone. 6 session, such absence must be voluntary and of your own free 7 will. If you request to absent yourself from any 8 Your voluntary absence from any session of the 9 commission is an unequivocal waiver of your right to be 10 present during the session. 11 negatively affect the presentation of the defense in your 12 case. 13 defense counsel may also negatively affect the presentation of 14 your case. 15 Your absence from any session may Your failure to meet with and cooperate with your Under certain circumstances your attendance at a 16 session can be compelled regardless of your personal desire 17 not to be present. 18 those occasions, as we are going to be discussing the 19 circumstances that have led to you being in court without your 20 outside appointed learned counsel, Mr. Kammen, and two other 21 members of your defense team. 22 23 The proceedings today constitute one of Do you understand what I have explained to you so far? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10017 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ACC [MR. AL NASHIRI]: 2 MJ [Col SPATH]: 3 [Indicated a positive response.] That is a positive response from Mr. al Nashiri. 4 During past sessions I know you have indicated you 5 did not desire for me to take breaks during the prayer times. 6 Is it still your preference not to take breaks during prayer 7 time? 8 ACC [MR. AL NASHIRI]: 9 MJ [Col SPATH]: 10 11 from Mr. al Nashiri. Yes. Yes. And that is again a positive response Thank you. So on Sunday afternoon we had an 802 session under 12 the Rules for Military Commissions. 13 Detailed military counsel for Mr. al Nashiri was there, and 14 counsel for the prosecution were present as well. 15 Ms. Spears, Ms. Eliades were absent, but for 802 sessions we 16 only need one counsel from either side anyway, so we went on 17 with the 802. 18 It was pretty short. Mr. Kammen, However, since they were absent, I informed the 19 parties we weren't going to convene on Monday as previously 20 scheduled, and I ordered parties to file pleadings with the 21 commission no later than noon on Monday. 22 both sides was their position on the way forward in light of 23 the absence of, again, appointed outside learned counsel. What I wanted from UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10018 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 That was the extent of the 802 session. 2 3 Trial Counsel, want to add anything to my summary of the 802 session? 4 TC [MR. MILLER]: 5 MJ [Col SPATH]: 6 DDC [LT PIETTE]: 7 MJ [Col SPATH]: No, Your Honor. Thank you. Defense Counsel? Defense concurs; nothing to add. So after that the government did provide 8 a filing -- they provided it before noon on yesterday -- which 9 I have been through. After the 802 on Sunday there was an 10 e-mail from detailed defense counsel indicating the way 11 forward was not to do anything because learned counsel isn't 12 here. 13 Through the attorney advisor that I have, we e-mailed 14 back to indicate if you are filing with the commission, 15 especially if the commission wants one, it should be in the 16 format required by the rules. 17 saying that the defense counsel wasn't going to do that. 18 We got another e-mail back Maybe I wasn't clear, so we will talk about that 19 later on what I expect counsel to do. 20 for your response in the right format. 21 that as we move on. 22 23 We have a designated AE We will talk about Yesterday afternoon General Baker requested to add a supplement to one of his filings. We allowed him to do that. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10019 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 We got that last night. 2 Additionally, at some point yesterday I know my staff 3 sent an e-mail out at my direction notifying the parties what 4 time we were going to start today, at 10:00, and that was 5 after I got the government filing; and then indicating I 6 wished to have the chief defense counsel, General Baker, 7 available to provide testimony. 8 because I see him in the courtroom as well. 9 It appears he is available I will enter some findings of fact so that we, again, 10 have an understanding of why we are here, where we are at. 11 These have been proven to at least a preponderance of the 12 evidence. 13 expected testimony of the chief defense counsel and the 14 absence of appointed outside learned counsel and detailed 15 civilian defense counsel, who are employees of the Department 16 of Defense. 17 18 19 These findings of fact are relevant both to the On 23 December 2008 Mr. Richard Kammen was appointed as the accused's outside learned counsel. On 25 August 2015 the chief defense counsel, 20 Brigadier General Baker, detailed Ms. Mary Spears to the 21 accused's case as an assistant defense counsel. 22 23 On 18 November 2015 General Baker detailed Ms. Rosa Eliades to the accused's case as another assistant defense UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10020 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 counsel. On 11 May 2017 the government filed AE 369T, a 3 classified pleading. 4 the defense of a potential intrusion into attorney-client 5 communications between an attorney not part of 6 Mr. al Nashiri's team and not representing Mr. al Nashiri and 7 a detainee other than the accused. 8 government was made voluntarily. 9 It provided notice to the commission and The disclosure by the On 14 June 2017 the chief defense counsel sent a 10 memorandum to the chief prosecutor. 11 "Improper Monitoring of Attorney-Client Meetings." 12 memorandum the chief defense counsel informed the chief 13 prosecutor he had advised all defense counsel under his 14 supervision that they not conduct any attorney-client meetings 15 at Guantanamo Bay, Cuba until they know with certainty that 16 improper monitoring of such meetings is not occurring. 17 The memorandum was titled In the On 23 June 2017 the defense filed Appellate 18 Exhibit 369HH, a classified motion seeking to disclose 19 classified information to Mr. al Nashiri related to alleged 20 intrusions into attorney-client communications. 21 On 7 July 2017 I denied the motion because I am 22 statutorily prohibited from ordering the disclosure of 23 classified information, which everybody knows. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10021 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 On 14 July 2017 the defense filed Appellate Exhibit 2 369PP, a motion to compel production of discovery materials 3 related to potential intrusions into attorney-client 4 communications. 5 On 20 September 2017 I issued Appellate 6 Exhibit 369YYY. 7 after I reviewed all of the information submitted thus far on 8 the issue, both classified and unclassified, and I found the 9 defense failed to carry its burden of proof to warrant 10 It was a classified ruling denying the motion additional disclosure. 11 On 14 July 2017 the defense filed Appellate 12 Exhibit 369RR, a motion for an evidentiary hearing or, in the 13 alternative, abatement of the proceedings due to potential 14 intrusions into attorney-client communications. 15 On 20 September 2017, again after consideration of 16 all the classified and unclassified filings and the in-court 17 representations and a classified declaration submitted by the 18 government, I issued Appellate Exhibit 369ZZZ. 19 classified ruling denying the motion and finding there wasn't 20 any basis to find there had been an intrusion into 21 attorney-client communications between this accused and this 22 defense team. 23 It's a On 14 August 2017 the defense filed Appellate Exhibit UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10022 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 369AAA. 2 counsel in the Expeditionary Legal Center rather than the 3 legal -- or rather than their usual meeting location. 4 It was a motion to allow the accused to meet with his On 25 October 2017 I denied Appellate Exhibit 369AAA 5 in Appellate Exhibit 369OOOO. 6 denying the motion, I certainly didn't object to the defense 7 utilizing the courtroom, or frankly any room, for 8 attorney-client meetings as that is something that they need 9 to work out with the confinement facility. In that ruling, I noted while It is not 10 something for me to be involved in in most instances, and I 11 have stayed out of it, as you all know, because I don't run 12 this facility. 13 here in the ELC between the defense counsel and their client 14 in this case. 15 I would note there have been many meetings On 4 October 2017 this commission issued Appellate 16 Exhibit 388, a docketing order setting forth the issues to be 17 addressed at this session. 18 going to address include the issues related to the deposition 19 of Mr. al Darbi, the deposition of Mr. al Darbi, testimony of 20 witnesses that we have ordered in 327E, and testimony of 21 witnesses regarding the preadmission of evidence authorized in 22 207C. 23 Some of the issues that we're On 6 October 2017 Mr. Kammen, Ms. Eliades and UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10023 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Ms. Spears submitted a request to the chief defense counsel to 2 withdraw from their representation of the accused. 3 justification relied in significant part upon the chief 4 defense counsel's 14 June memorandum and a 5 October 2017 5 ethics opinion from Professor Ellen Yaroshefsky. 6 Their On 11 October 2017 the chief defense counsel notified 7 Mr. Kammen, Ms. Eliades and Ms. Spears that he had accepted 8 their request to withdraw from representing the accused, and 9 he released them for good cause shown on the record. 10 11 12 On 13 October 2017 the defense provided notice to the commission of this purported withdrawal. On 16 October 2017 the detailed defense counsel filed 13 Appellate Exhibit 389, a motion to abate proceedings pending 14 the detailing of a new learned counsel. 15 commission issued Appellate Exhibit 389A -- just a second to 16 find my way in my notes -- which reiterated that Mr. Kammen, 17 Ms. Eliades and Ms. Spears remain counsel of record in the 18 case; ordered Mr. Kammen, Ms. Eliades and Ms. Spears to appear 19 at the next scheduled hearing of this commission unless 20 excused by me or the commission, invited the chief defense 21 counsel to file pleadings as to his perceived authority to 22 unilaterally and unreviewably excuse counsel, and set a 23 compressed briefing schedule. On the same day this UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10024 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Between 20 October and 26 October 2017, the 2 government and the chief defense counsel filed pleadings 3 responsive to Appellate Exhibit 389A. 4 On 27 October 2017 this commission issued 389F 5 denying the abatement motion and specifically finding the 6 following: 7 8 9 One, no good cause exists to warrant the excusal of Mr. Kammen, Ms. Eliades or Ms. Spears. Two, no evidence has yet been presented to 10 demonstrate intrusions in this case affecting this accused 11 which would ethically require withdrawal or disqualification 12 of outside appointed learned counsel. 13 And three, the excusal of outside appointed learned 14 counsel at this stage would prejudice Mr. al Nashiri's due 15 process rights. 16 On the morning of 28 October 2017 the chief 17 prosecutor e-mailed the chief defense counsel attaching the 18 commission's ruling in Appellate Exhibit 389F and requesting 19 the chief defense counsel notify the government and commission 20 of the chief defense counsel's steps to ensure civilian 21 attorney compliance with applicable law and regulation by 22 participation in the R.M.C. 802 conference scheduled for 23 Sunday at 1700 and then being present for the next session on UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10025 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 the record today, the 31st of October, Monday morning -- or 2 yesterday, sorry, the 30th of October, Monday morning. 3 On the afternoon of 28 October 2017 the chief 4 prosecutor again e-mailed the chief defense counsel asking for 5 acknowledgment of receipt, making clear that suitable 6 arrangements were in effect to facilitate travel and 7 providing: "I trust that you are considering the very real 8 disturbance and disorder to the military commissions 9 proceedings that will be caused if they do not appear by the 10 continuing impact of your purported excusal of them." 11 chief defense counsel acknowledged receiving the e-mail on 12 28 October 2017. 13 The On 29 October 2017 at 0610 hours on the morning of 14 the scheduled departure to Guantanamo Bay, Cuba, the chief 15 defense counsel advised the chief prosecutor that he had been 16 informed that Mr. Kammen, Ms. Eliades and Ms. Spears do not 17 intend to travel to Guantanamo. 18 provided to the commission until after the charter flight had 19 landed at Guantanamo Bay. 20 That information was not On 29 October 2017, after we had arrived at 21 Guantanamo Bay, I conducted a session pursuant to the Rules 22 for Military Commission 802, and that is when I directed the 23 submission of the filings by 1200 on 30 October 2017 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10026 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 addressing the way forward that I discussed earlier. 2 As mentioned, detailed defense counsel submitted an 3 e-mail to my support staff by which he indicated the defense 4 position was that substantive proceedings cannot occur without 5 the presence of learned counsel. 6 the detailed defense counsel that I expected written pleadings 7 to be filed by the parties. 8 802 session, so I will clear it up here in a little while. 9 Through my staff, I reminded And maybe I wasn't clear in the Detailed defense counsel submitted a second e-mail. 10 In this e-mail he stated because learned counsel is not 11 present, the defense will not be making any new filings. 12 would point out that the detailed defense counsel made a 13 filing in the case with just his signature on it where he 14 requested an abatement. 15 16 I So that's where we are at and how we got here thus far. 17 So first a couple questions as we kind of work 18 through the road ahead. 19 General Baker here, and I have some questions for him, and I 20 will turn it over to both sides if they have any questions for 21 him. 22 23 Obviously we are going to call One, I hope that the unclassified attachment, and I believe it's -- let me find my note on that so I have it UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10027 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 right. 2 attachment wherein learned counsel -- it's Attachment A to the 3 original 389, where the learned counsel detailed to the ethics 4 advisor, who we will talk about as well, what his concerns 5 were. 6 client if you provided it to him, but I sure would hope you 7 provided it to your client so he understands, at least to the 8 point that is allowed, why we are here; along with an 9 unclassified decision or opinion by the ethics advisor. You will know it right away; it is the unclassified It is unclassified, and so I'm not going to ask your 10 again, I'm not going to ask. 11 would do that. 12 So That is up to you-all, but I The other piece is I would get familiar with 13 Strickland, and I would get familiar with learned counsel 14 being available to the extent practicable, because we are 15 moving forward this week. 16 testify on Thursday or Friday that came down on the flight, 17 and next week we are going to be moving through the al Darbi 18 deposition issues and through the al Darbi cross-examination, 19 and then we are going to move into the other things that are 20 on the docket. 21 We are going to have a witness And I would suggest if anyone disagreed with my 22 ruling on an abatement that they file a writ. We all know the 23 process here, and I don't have to explain it. But that UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10028 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 doesn't really get to some of the questions I need answered so 2 we can move forward. 3 4 Trial Counsel, if you would swear General Baker in and ask the initial questions. 5 [MR. SUNDEL]: 6 MJ [Col SPATH]: 7 8 9 I see General Baker is here. Colonel, Philip Sundel with the ---Come on up here. So you are not an attorney of record for Mr. al Nashiri. So what is your position? [MR. SUNDEL]: I am not, sir. I am Acting General Counsel 10 for the Military Commissions Defense Organization, and I'm 11 just here to inform the military commission that pursuant to 12 Rule 501(b)(1), the chief defense counsel is invoking 13 privilege and will not testify. 14 MJ [Col SPATH]: Well, he will come up and invoke 15 privilege to each question I ask and then I will rule on 16 whether or not that information is privileged or I'm going to 17 pierce it. 18 affidavit, clearly waiving any privilege that he might be 19 claiming, because he filed it to the commission. 20 And I have some questions where he has filed an [MR. SUNDEL]: Your Honor, under 501(b)(1) he is invoking 21 his right to not testify. 22 information has already been provided to the court. 23 nothing to add. The extent of the nonprivileged UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10029 He has UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: And again, he will be able to say he is 2 not testifying to each question, just like we would do anyone 3 invoking their Fifth Amendment right. 4 question if he wants to. 5 an honest discussion with yourselves about what is privileged 6 and what is not when you file an affidavit and make yourself a 7 witness about factual matters. 8 9 He can say it to each But I would suggest that y'all have There are questions about that that don't involve discussions, don't involve attorney work product; they 10 involve: 11 it? Did you do this? Pretty easy. Is your signature on And I also have some direction for him. 12 So he is going to come and get sworn in and testify. 13 You are welcome -- you can sit right there and you are welcome 14 to advise him if you disagree as we move forward. 15 plan to ask him anything that is even close to privileged 16 information. But I don't However ---- 17 [MR. SUNDEL]: 18 MJ [Col SPATH]: Colonel, under 5 ------- is not representing the accused in 19 this case and he made himself a witness by issuing a ruling, 20 and a decision, to excuse counsel. 21 [MR. SUNDEL]: 22 MJ [Col SPATH]: 23 And you know that. Under 501(b)(1) ---I appreciate you're going to keep saying that. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10030 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 [MR. SUNDEL]: ---- he is refusing to be a witness. It is not an invocation that needs to be made on the stand. 3 MJ [Col SPATH]: 4 [MR. SUNDEL]: 5 MJ [Col SPATH]: That is your interpretation ---He is electing to refuse to be a witness. That is your interpretation. 6 you all struggle with this. 7 get to rule. 8 [MR. SUNDEL]: 9 MJ [Col SPATH]: Apparently I get to interpret the law and I Your Honor, if you ---I get to interpret it. That is how it 10 works. 11 weird session, even down here, and I know you all do that. 12 This is a normal proceeding. 13 I appreciate what you are saying, he has filed, in this case, 14 making statements. 15 has been quiet as a defense counsel. 16 different. 17 case. 18 And that is how it works anywhere. This isn't some And I am telling you that while That makes him different than someone who That makes him He has chosen to make himself a witness in this I didn't choose that. [MR. SUNDEL]: Colonel, if you find that he has improperly 19 invoked his right to not be a witness, then we will take an 20 appeal, and he will not act as a witness until the appeal is 21 decided. 22 23 MJ [Col SPATH]: That is not one of the options, as you know. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10031 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [MR. SUNDEL]: 2 MJ [Col SPATH]: We disagree. You may go file a writ and you may 3 attempt to get a stay, if the court grants it. 4 amenable to the appellate courts. 5 frequently in my life and I have no problem. 6 to be the difference. 7 something, I just do it, and then I take what action I can. 8 9 10 11 I'm very I've listened to them And that seems When I get ordered by a court to do So if you look down at this, what is your belief that he can simply refuse an order to come up here and testify? [MR. SUNDEL]: Colonel, the harm of a privilege being wrongfully pierced ---- 12 MJ [Col SPATH]: 13 [MR. SUNDEL]: What is your authority? ---- is irrevocable, so he is entitled to 14 take an appeal from an order to testify despite a claim of 15 privilege, especially in open ---- 16 MJ [Col SPATH]: 17 [MR. SUNDEL]: 18 19 20 ---- court and subject to questioning by parties. MJ [Col SPATH]: What's your authority to do that? What's your authority to that other than ---- 21 [MR. SUNDEL]: 22 MJ [Col SPATH]: 23 What is your authority for that? My authority to that ------- other than the rule that you cited multiple times? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10032 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [MR. SUNDEL]: My authority to that is the Model Rules of 2 Professional Responsibility that say that an attorney is 3 obligated to pursue vehicles to challenge an order to pierce a 4 privilege until the highest court has decided the issue or 5 refused to accept the issue. 6 7 8 9 MJ [Col SPATH]: privilege yet. And again, I haven't pierced any You -- you are way ahead of the course ---- [MR. SUNDEL]: Requiring him to be a witness after we have invoked 501(b)(1), we believe, is the same thing. 10 MJ [Col SPATH]: 11 [MR. SUNDEL]: 12 MJ [Col SPATH]: What authority ---There is too great a risk ------- do you have -- what case, what 13 authority, what citation, other than, again, pointing me to 14 the general rule, where I haven't asked him to pierce 15 privilege? 16 counsel? I have told you -- and are you his defense 17 [MR. SUNDEL]: 18 MJ [Col SPATH]: 19 [MR. SUNDEL]: 20 I am the acting general counsel for ---I understand that. ---- the Military Commissions Defense Organization. 21 MJ [Col SPATH]: 22 [MR. SUNDEL]: 23 MJ [Col SPATH]: Are you his defense counsel? This is an institutional claim. And so if there is a privilege that I'm UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10033 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 piercing, I will be happy to talk to you about it, but I'm 2 not. I'm not. He filed things. 3 [MR. SUNDEL]: 4 MJ [Col SPATH]: What ---- The risk ------- basis -- what authority do you have 5 that you file something with the court and that privilege 6 isn't waived as to the information in the filing? 7 filing. 8 9 [MR. SUNDEL]: Colonel, as long as we have not disclosed privileged information in the filing ---- 10 MJ [Col SPATH]: 11 [MR. SUNDEL]: 12 Right. ---- then we have not pierced the privilege. 13 MJ [Col SPATH]: I agree. 14 did you -- did you file this? 15 yes or no. 16 17 In the [MR. SUNDEL]: information. But do you understand that -That is not privileged. It is That is the extent of the nonprivileged There is nothing ---- 18 MJ [Col SPATH]: 19 [MR. SUNDEL]: 20 MJ [Col SPATH]: Again ------- to add in addition to that. ---- you haven't let me ask a question. 21 You've assumed that I'm trying to pierce a privilege that I'm 22 not. 23 filed things both with the prosecutor -- he sent an e-mail to You have also stepped into the mix of somebody who has UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10034 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 the prosecutor. 2 this -- right? 3 I mean ---- Did you send the e-mail? You said this publicly; thereby, no privilege, 4 [MR. SUNDEL]: 5 MJ [Col SPATH]: 6 [MR. SUNDEL]: 7 pleadings. 8 is privileged. 9 10 11 12 When you said Colonel ------- you sent it to the chief prosecutor. ---- the government constantly files That does not mean that no government information MJ [Col SPATH]: [MR. SUNDEL]: You are correct. The parties -- the parties do not waive a privilege ---MJ [Col SPATH]: And the government lets me know 13 frequently when they are asserting privilege. 14 have a discussion about what we are going to do about that. 15 And frequently, it doesn't get disclosed. 16 And then we All I'm saying to you is, under 501(d), you really 17 think you can say he is not testifying about nonprivileged 18 matters, so you are going to refuse an order from the 19 commission as well? 20 [MR. SUNDEL]: 21 MJ [Col SPATH]: Yes. Okay. Well, I'm going to have General 22 Baker refuse it, because you are not his lawyer. 23 appreciate your assertion. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10035 And I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 5 CDC [BGen BAKER]: Your Honor, can we take about a five-minute recess? MJ [Col SPATH]: Sure. We are in recess. [The R.M.C. 803 session recessed at 1028, 31 October 2017.] [END OF PAGE] 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10036 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [The R.M.C. 803 session was called to order at 1042, 2 31 October 2017.] 3 4 MJ [Col SPATH]: The same parties who were present before are again present. 5 Mr. Sundel. 6 [MR. SUNDEL]: 7 MJ [Col SPATH]: 8 [MR. SUNDEL]: 9 MJ [Col SPATH]: 10 The commission is called back to order. Philip Sundel again. Is it Colonel or Mr. Sundel? No, no, no. It's Mister. No, that's all right. I'm sorry. I want to make sure I hear you correctly. 11 [MR. SUNDEL]: 12 MJ [Col SPATH]: We believe that ---I understand. Here's the issue: You're 13 not a party of record. 14 telling me that you want to appear. 15 standing to be here, and so I can't help you right now. 16 you are doing is getting yourself cross-wise where there is no 17 order for you to violate. 18 There has been no filing from you I don't know how you have General Baker is ordered to come testify. What If he 19 refuses the order, we will deal with it. 20 defense counsel, you are not Mr. al Nashiri's lawyer, and you 21 haven't entered an appearance; and so you have no right of 22 standing. 23 You are not his So go take your seat. Trial Counsel, swear General Baker in and ask the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10037 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 preliminary questions. 2 TC [MR. MILLER]: 3 CDC [BGen BAKER]: 4 General Baker. Sir, before we do that, can I offer a potential way ahead? 5 MJ [Col SPATH]: 6 CDC [BGen BAKER]: Sure. I am very concerned about getting into 7 privileged material, and I'm also concerned about the 8 complexity of the area of law of privilege. 9 talking about ---- 10 MJ [Col SPATH]: 11 CDC [BGen BAKER]: I mean, we are I understand that. So it -- it could be -- it could help 12 us, all of us, get there if I knew basically what you wanted 13 to ask so that we can figure -- you know, we can figure out 14 the way forward. 15 MJ [Col SPATH]: You can take all the pauses you want. 16 And I don't even mind if you talk to the attorneys back there 17 if you have confusion or are worried about my questions. 18 would hope over the time you have sat in this courtroom you 19 know that I recognize the importance of privilege ---- 20 CDC [BGen BAKER]: 21 MJ [Col SPATH]: 22 23 Yes, sir. ---- and recognize the importance of the orderly administration of this. CDC [BGen BAKER]: I I do, sir. And I suggest ---- UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10038 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 MJ [Col SPATH]: I appreciate that. And so I have the same issue. 3 CDC [BGen BAKER]: 4 MJ [Col SPATH]: 5 CDC [BGen BAKER]: I just ---You are not an attorney of record. I get that. I just suggest that an 6 orderly process would be to know the subject areas that you 7 want to go so that we don't question, stop, 15-minute break, 8 question, stop. 9 MJ [Col SPATH]: I understand. I have worked on these 10 questions for quite some time, and I believe they are very 11 carefully crafted. 12 CDC [BGen BAKER]: Well, Your Honor, pursuant to Rule 13 501(b)(1), I am asserting my right to refuse to be a witness 14 in this case. 15 MJ [Col SPATH]: You do understand that that means there's 16 an actual claim of privilege over the questions I'm asking 17 you, not an absolute right not to testify? 18 that? 19 20 21 22 23 CDC [BGen BAKER]: Do you understand I have -- and I will confess to having done more than read the rule. MJ [Col SPATH]: Look above. What privilege are you claiming? CDC [BGen BAKER]: The deliberative process privilege, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10039 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 which is a common law privilege; the government information 2 privilege under 506; the attorney-client privilege under 502; 3 the attorney work product privilege under common law; and, 4 additionally, my obligation under my state ethics rules to 5 protect confidential information under Rule 1.6. 6 Again, Your Honor, this is super complicated. 7 MJ [Col SPATH]: 8 Here is the bottom line: 9 You can pause before you answer questions. This isn't. You have filed things here. You are ordered to come testify. You can assert a 10 privilege and tell me which one, not a blanket this one, this 11 one, this one, this. 12 privilege, you assert it, and then we will deal with whether 13 or not we get around it. 14 Each question, if you think there is a Your appellate counsel has said I have to wait until 15 the Supreme Court rules on it. 16 how it works. 17 information right here. 18 do that, because I don't need privileged information to ask 19 you the questions I'm going to ask you and issue the order to 20 you I'm likely to issue. 21 That's silliness. That's not I've ordered the disclosure of privileged CDC [BGen BAKER]: And I'm not suggesting I'm going to Your Honor, the -- you keep saying that 22 this filing makes me a witness. 23 that any ---- This is an averment of facts UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10040 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: 2 CDC [BGen BAKER]: 3 MJ [Col SPATH]: 5 CDC [BGen BAKER]: MJ [Col SPATH]: 8 CDC [BGen BAKER]: 10 11 With your name. And in any pleading that anybody files, the lawyer that files that does not become a witness. 7 9 -- in response to a request from you -- yes, absolutely. 4 6 And you filed it with your name. You're not an attorney of record. Your Honor, this was filed in response to your invitation. MJ [Col SPATH]: If you wanted to. You also have sent e-mails to General Martins ---- 12 CDC [BGen BAKER]: 13 MJ [Col SPATH]: Absolutely. ---- that have been attached. You also 14 have excused counsel. 15 the discussion you had with those counsel, they may or may not 16 be privileged. 17 don't care what your discussions were. 18 you about your discussion. 19 Not privileged there. Maybe some of That's a debate we could probably have. But I I don't plan to ask I plan to ask about the affirmative acts you took in 20 this case that are public knowledge and have been reported 21 both in the press and here through e-mail. 22 privileged. 23 That is not Those are acts you took affecting this case. And again -- and I plan to issue you an order from UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10041 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 the commission. 2 from there, but we're not going to spend all day doing this. 3 4 5 You can choose to accept it or not and go CDC [BGen BAKER]: Your Honor, again, under Rule 501(b)(1) I refuse to appear as a witness. MJ [Col SPATH]: All right. 6 testify. 7 testify; is that accurate? 8 CDC [BGen BAKER]: 9 MJ [Col SPATH]: So, I'm ordering you to You are refusing to come up here, take the oath, and That is accurate; yes, sir. All right. I'm also ordering you to 10 rescind the direction you gave when you excused both learned 11 outside -- appointed learned counsel and the two civilians. 12 Are you refusing to comply with that order as well? 13 excused them; you released them. 14 CDC [BGen BAKER]: 15 MJ [Col SPATH]: You Yes, sir. I'm ordering you to send them a note 16 saying you are not releasing them. 17 here. 18 work for you. 19 But that is your choice as their supervisory attorney, and 20 everybody can deal with that, including your supervisor. 21 I know that. I can't order Mr. Kammen I know you've got two DoD employees that I know what their government contract says. My question to you is: I'm ordering you to send them 22 a memo telling them their withdrawal is not approved because 23 you don't have the authority. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10042 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 CDC [BGen BAKER]: 2 MJ [Col SPATH]: 3 CDC [BGen BAKER]: Oh, I'm definitely not going to ---Okay. ---- I am definitely not -- Your Honor, 4 Rule 5-0 -- I understand your ruling. 5 ruling. 6 MJ [Col SPATH]: I understand your You don't, because you haven't done 7 anything to fix the ruling. 8 issue a ruling. 9 with it and we go to the appellate court and they tell me I'm right or wrong. 11 That is the normal process. 13 14 I You disagree with it -- or you all disagree 10 12 How does this normally work? They do it every week. And I'm okay with it. You interpreted a rule, and now there are two rulings from this commission that tell you you got it wrong. CDC [BGen BAKER]: Your Honor, if your -- if your order to 15 me is to -- I want to make sure that I understand what -- your 16 order to me. 17 rescind your action that you took on October 13th ---- If your order to me is, General Baker, you must 18 MJ [Col SPATH]: 19 CDC [BGen BAKER]: Yes. ---- whatever the date -- whatever the 20 correct date is, excusing learned counsel and assistant 21 defense counsel, I refuse to follow that order. 22 MJ [Col SPATH]: 23 CDC [BGen BAKER]: And you are also refusing to testify. Yes, sir, pursuant to ---- UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10043 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: I understand you are citing a rule. 2 have ordered you to come up here and testify and take the 3 oath. I 4 Okay. 5 Lieutenant Piette, I probably wasn't clear in the 802 We'll talk more tomorrow. 6 session, so I'm going to make it reasonably clear. 7 filing. 8 write whatever you want, but it goes on a heading so that it 9 is part of a record of trial that is public as opposed to an You can write "I'm not going to answer," you can 10 e-mail to my staff. 11 I should have at the 802 session. 12 I expect a And maybe I didn't say that as clearly as So we have an AE number designated for your filing. 13 You have until 1600 today to issue a file -- or send a filing 14 in using that AE number in our 389 series. 15 clear than that. I can't be more Do you understand? 16 DDC [LT PIETTE]: 17 MJ [Col SPATH]: Yes, sir, I understand your order. All right. On Thursday -- we had a 18 witness travel down here. 19 order -- again, you can certainly refuse to follow it -- is I 20 expect you to make arrangements for the two detailed military 21 civilian -- or detailed civilian counsel, since you are their 22 supervisor and they're employed by DoD, I expect you to 23 communicate to them the need to get themselves down here General Baker, the other, I think, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10044 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 posthaste. 2 CDC [BGen BAKER]: 3 MJ [Col SPATH]: 4 5 6 7 I understand your order. Are you going to communicate that to them? CDC [BGen BAKER]: I need to think about that, Your Honor. And ---MJ [Col SPATH]: That's fine. Just let me know by 1600. 8 You can send an e-mail -- since you are not a party of record, 9 send an e-mail to the staff and let me know if you are 10 11 12 13 communicating it to them or you are not. CDC [BGen BAKER]: Aye, sir. And if I communicate with your staff, I will obviously copy the parties. MJ [Col SPATH]: I understand. Do you believe -- well, 14 you won't answer any question so we can't even satisfy whether 15 or not you have supervisory authority over Mr. Kammen, because 16 you have decided not to testify about administrative matters; 17 your choice. 18 To the extent you believe you have supervisory 19 authority over Mr. Kammen, I expect you to communicate to him 20 we're moving forward, and that he would wisely probably also 21 make an effort to come here. 22 him to this island. 23 But I understand I can't order There is nothing I can do about that. CDC [BGen BAKER]: I understand, Your Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10045 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: 2 you are going to comply. 3 All right. 4 session briefly. 5 hearing. 6 Same e-mail by 1600. Tomorrow at noon we are going to be in I anticipate we are going to have a contempt And then Thursday, 0900, we are going to start with 7 the witness who traveled down here. 8 administrative matters Thursday and Friday. 9 Just let us know if And we will do some other Tuesday next week we'll start the cross-examination 10 of al Darbi in the closed deposition, and we will just see 11 where we are after that. 12 13 14 Trial Counsel, what do you want to talk about? And I will give it to you too, Defense Counsel. ATC [Maj PIERSON]: Your Honor, prior to proceeding with 15 the cross-examination, the government does believe we will 16 still need a hearing under M.R.E. 505(h) as to classified 17 information that may be used as part of the cross-examination. 18 MJ [Col SPATH]: 19 ATC [Maj PIERSON]: 20 MJ [Col SPATH]: 21 22 23 Makes sense. We will do that on Monday. Thank you, Your Honor. Defense Counsel? I feel sorry for the position you have been put in. DDC [LT PIETTE]: Roger that, Your Honor. Respectfully, and this is regarding the order you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10046 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 gave to have a filing by 1600. 2 heads up that it is my position, it is the defense's position 3 that right now Mr. al Nashiri has the statutory right to 4 learned counsel at all ---- 5 MJ [Col SPATH]: And I want to give the court a You can stop. It says to the extent 6 practicable. 7 that's simple for me. 8 learned counsel on matters of capital litigation. 9 I've already interpreted the statute. I mean, To the extent practicable he can have What I'm talking about is a filing telling me what 10 our proposed way ahead is now that he is not here. 11 I'm talking about is your ability to do cross-examinations, 12 which you have done before, direct examinations, which you 13 have done before, and pretrial information and motions, which 14 you have done before. 15 And what If I'm wrong, your client will get a windfall because 16 I have ordered us to move forward without learned counsel. 17 But if you refuse, you too, at noon tomorrow, will be here for 18 a contempt hearing. 19 DDC [LT PIETTE]: 20 MJ [Col SPATH]: Yes, Your Honor. It's that simple. I've already 21 interpreted, and there will be a ruling, based on the 22 government's filing, about the ability to have learned 23 counsel. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10047 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 The chief defense counsel has decided that 2 Mr. al Nashiri does not need defense counsel here. 3 choice. 4 practicable to get them here. 5 that. 6 right now. That's his To the end -- in his filing, said it is not Well, the law discusses just It isn't practicable, and we are not going to wait 7 Hopefully, by the time we get to any findings case, 8 we will have learned counsel to assist you, or more counsel. 9 But we are going to continue to move forward. And if we need 10 to come back and redo some things, we've got all the time in 11 the world, as we've demonstrated for the last nine years. 12 So again, you are detailed counsel, and I have 13 interpreted the rule. 14 you can sit here and do nothing. 15 some other cases where we have had defense counsel who feel 16 like you do, a judge's ruling was unfair and they didn't like 17 it so they didn't engage in an opening statement, closing 18 argument, crosses of witnesses, directs of witnesses, or 19 filing motions. 20 strategy. 21 work here, and they didn't find the counsel ineffective. 22 So that is your choice, and that is your issue. 23 So you can defy the order to be here; I would read Strickland and And the appellate court said that is a It's a strategy that may well work, but it didn't DDC [LT PIETTE]: Yes, I understand, Your Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10048 And as UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 the only counsel in this room who has been detailed 2 specifically to defend Mr. al Nashiri, I aim to defend him. 3 And I cannot do that without a learned counsel because, by 4 statute, he has to have one. 5 MJ [Col SPATH]: 6 DDC [LT PIETTE]: 7 MJ [Col SPATH]: We have already dealt with that. Yes, Your Honor. The issue is resolved. You are welcome 8 to file a writ. 9 apparently, to make an appearance on the record to a case that You've got your chief appellate counsel here, 10 he's not detailed to. 11 C.M.C.R. will step in quickly, or maybe they won't. 12 three weeks from now they will step in and say, Spath, you got 13 it wrong again, like I have twice already. 14 will come back and do it again. 15 I would file a writ, and maybe the But again, your order is easy. Sorry. Maybe And we We will be here 16 Thursday -- we will be here at noon tomorrow and we will be 17 here Thursday with the government's witness, who flew down 18 here on an airplane. 19 waive it affirmatively on the record. 20 those cases after Strickland, understand where we are at, and 21 understand that I find learned counsel are not practicable in 22 the near term, if ever, by the actions of General Baker. 23 You can engage in the direct or you can But again, I would read And again, maybe you have set your client up for UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10049 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 success if there is a conviction and the appeal will be a lot 2 easier for you. 3 4 DDC [LT PIETTE]: Yes, Your Honor, I understand. as a ---- 5 MJ [Col SPATH]: 6 DDC [LT PIETTE]: 7 MJ [Col SPATH]: 8 we are getting underway. 9 10 But just We're done. No. Thursday, they are calling a witness, and DDC [LT PIETTE]: I understand, Your Honor, and I will be here ---- 11 MJ [Col SPATH]: 12 DDC [LT PIETTE]: Noon tomorrow. ---- but what I am not going to do is 13 make any more pleadings, because I see the slippery slope that 14 happens when I make a motion ---- 15 16 MJ [Col SPATH]: not going to file one? 17 DDC [LT PIETTE]: 18 MJ [Col SPATH]: 19 DDC [LT PIETTE]: 20 MJ [Col SPATH]: 21 So in response to the pleading, you are That's correct, Your Honor. You are going to defy my order? Yes, Your Honor. Okay. Then noon tomorrow I will see the three of you. 22 DDC [LT PIETTE]: 23 MJ [Col SPATH]: Thank you. All right. We are in recess. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10050 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 [The R.M.C. 803 session recessed at 1059, 31 October 2017.] [END OF PAGE] 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10051