USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 1 of 66 [ARGUMENT NOT YET SCHEDULED] UNITED STATES COURT OF APPEALS for the District of Columbia Circuit In re: ABD AL-RAHIM HUSSEIN ALNASHIRI, ) ) ) ) ) ) ) ) ) ) ) No. ______________ PETITION FOR A WRIT OF MANDAMUS AND PROHIBITION Dated: October 4, 2018 Michel Paradis CAPT Brian Mizer, USN, JAGC LT Alaric Piette, USN, JAGC U.S. Department of Defense Military Commission Defense Organization 1620 Defense Pentagon Washington, DC 20301 Counsel for Petitioner (Page 1 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 2 of 66 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES I. Parties and Amici Appearing Below 1. Abd Al-Rahim Hussein Al-Nashiri, Appellee 2. United States of America, Appellant II. Parties and amici Appearing in this Court 1. Abd Al-Rahim Hussein Al-Nashiri, Petitioner 2. United States of America, Respondent III. Rulings under Review This case involves a petition for a writ of mandamus and prohibition to the Department of Defense and, in the alternative, to the United States Court of Military Commission Review, which issued an order denying the relief requested on September 28, 2018 (Attachment A). IV. Related Cases This case has not previously been filed with this court or any other court. Petitioner has a habeas petition in the United States District Court for the District of Columbia, Case No. 08-1207. Dated: October 4, 2018 /s/ Michel Paradis Michel Paradis U.S. Department of Defense Military Commission Defense Organization 1620 Defense Pentagon Washington, DC 20301 Counsel for Petitioner i (Page 2 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 3 of 66 TABLE OF CONTENTS Table of Authorities ............................................................................................... iv Jurisdiction .............................................................................................................. 1 Relief Sought ........................................................................................................... 1 Issues Presented ...................................................................................................... 2 Statement of Facts................................................................................................... 4 A. Background of the military commission proceedings convened to try Petitioner. ................................................................................................ 4 B. Col Spath refuses to address a microphone discovered in attorney-client meeting spaces. ......................................................................... 6 C. Col Spath attempts to countermand BGen Baker’s excusal of civilian counsel. .............................................................................................. 10 D. Col Spath orders that military commission hearings continue in the absence of learned counsel. ...................................................................... 13 E. Abatement and relevant proceedings in the Court of Military Commission Review. ...................................................................................... 21 Reasons for Granting the Writ ............................................................................ 28 I. There is no other adequate means of obtaining relief. .................................. 30 II. Petitioner’s entitlement to relief is clear and indisputable. ........................... 31 A. Secretly pursuing employment with the Justice Department whilst serving as a judge in a high-profile criminal case involving the Justice Department creates a disqualifying conflict of interest. ..................... 31 B. Col Spath violated every standard and rule governing the pursuit of employment by a sitting judge. .................................................................. 38 C. The only adequate remedy to cure the structural error in this case is to vacate the proceedings below. ................................................................ 47 ii (Page 3 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 4 of 66 D. In the alternative, this Court should vacate all of Col Spath’s orders tainted by the period of misconduct. .................................................... 50 E. At a minimum, this Court must direct the CMCR to conduct a proper inquiry into Col Spath’s misconduct. .................................................. 50 III. Issuance of the writ is in the public interest. ................................................. 53 Conclusion ............................................................................................................. 55 Certificate of Compliance with Rule 32(a) ......................................................... 56 Certificate of Service ............................................................................................ 57 Attachments........................................................................................................... 58 iii (Page 4 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 5 of 66 TABLE OF AUTHORITIES *Authorities upon which Petitioner chiefly relies are marked with an asterisk. Cases Apple v. Jewish Hosp. and Medical Ctr., 829 F.2d 326 (2d Cir.1987) ........................................................................... 46, 50 Baker v. Spath, __ F. Supp. 3d __, 2018 WL 3029140 (D.D.C. June 18, 2018) ........................................................ 13 Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) ............................................................................................ 36 Cheney v. U.S. District Court, 542 U.S. 367 (2004) ................................................................................ 27, 28, 29 Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003) .......................................................................... 30 DeNike v. Cupo, 958 A.2d 446 (N.J. 2008) .................................................................................... 37 Easley v. University of Michigan Bd. of Regents, 853 F.2d 1351 (6th Cir. 1988) ............................................................................. 51 Gonzalez v. Pliler, 341 F.3d 897 (9th Cir. 2003) ............................................................................... 50 In re Al-Nashiri, 791 F.3d 71 (D.C. Cir. 2015) ............................................................ 28, 30, 53, 54 In re Al-Nashiri, 835 F.3d 110 (D.C. Cir. 2016) .............................................................................. 5 In re Brooks, 383 F.3d 1036 (D.C. Cir. 2004) .......................................................................... 30 In re IBM, 618 F.2d 923 (2d Cir. 1980) ................................................................................ 29 In re Kempthorne, 449 F.3d 1265 (D.C. Cir. 2006) .......................................................................... 30 *In re Mohammad, 866 F.3d 473 (D.C. Cir. 2017) ................................................................ 28, 30, 48 iv (Page 5 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 6 of 66 In re United States, 666 F.2d 690 (1st Cir. 1981) ............................................................................... 29 Jenkins v. Sterlacci, 849 F.2d 627 (D.C. Cir. 1988) ............................................................................ 54 Ligon v. City of New York, 736 F.3d 118 (2d Cir. 2013) ................................................................................ 46 Liljeberg v. Health Services Acquisition, 486 U.S. 847 (1988) ...................................................................................... 31, 47 Lucia v. SEC, 138 S.Ct. 2044 (2018) ......................................................................................... 23 *Pepsico v. McMillen, 764 F.2d 458 (7th Cir. 1985) ............................................................................... 37 *Scott v. United States, 559 A.2d 745 (D.C. 1989) ....................................................................... 32, 38, 48 Tumey v. Ohio, 273 U.S. 510 (1927) ............................................................................................ 35 Union Carbide v. U.S. Cutting Service, 782 F.2d 710 (7th Cir. 1986) ......................................................................... 29, 52 United States v. Clark, 184 F.3d 858 (D.C. Cir. 1999) ............................................................................ 43 United States v. Donato, 99 F.3d 426 (D.C. Cir. 1996) .............................................................................. 48 United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ............................................................................................ 49 United States v. Horton, 98 F.3d 313 (7th Cir. 1996) ................................................................................. 29 United States v. McIlwain, 66 M.J. 312 (C.A.A.F. 2008) .............................................................................. 53 United States v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001) .............................................................................. 46 United States v. Mikhel, 889 F.3d 1003 (9th Cir. 2018) ....................................................................... 34, 44 United States v. Patti, 337 F.3d 1317 (11th Cir. 2003) ........................................................................... 31 v (Page 6 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 7 of 66 United States v. Quintanilla, 56 M.J. 37 (C.A.A.F. 2001) ................................................................................ 52 United States v. Sells Engineering, 463 U.S. 418 (1983) ............................................................................................ 32 United States v. Vargas, 2018 CCA LEXIS 137 (A.F. Ct. Crim. App. 2018) ............................................ 53 *Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) ...................................................................... 36, 45, 47, 49 US Code 10 U.S.C. § 1101..................................................................................................... 42 10 U.S.C. § 948k....................................................................................................... 6 10 U.S.C. § 950d........................................................................................... 8, 22, 26 10 U.S.C. § 950g....................................................................................................... 1 28 U.S.C. § 1651....................................................................................................... 1 Congressional Materials Military Commissions Act of 2006, 120 Stat. 2600 ........................................................................................................ 4 Military Commissions Act of 2009, 123 Stat. 2190 §§ 1801-1807 ................................................................................ 4 Sen. Jeff Sessions, Letter to President Obama, 2010 WLNR 584318 (January 10, 2010) ............................................................ 39 vi (Page 7 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 8 of 66 Executive Materials Chief Defense Counsel Policy Memorandum 5-15 Ch. 5, MCDO Uniform and Civilian Attire Policy for Military Personnel (May 18, 2017) ............................ 21 Department of Justice, Press Release: EOIR Swears in 46 Immigration Judges (September 28, 2018) .......................................................................................... 27 Harvey Rishikof, Convening Authority, Memorandum for BGen John G. Baker, Chief Defense Counsel (Nov. 21, 2017) ............................................................. 16 R.M.C. 103 ............................................................................................................. 40 R.M.C. 505 ............................................................................................................. 11 *R.M.C. 902 ........................................................................................................... 36 Other Authorities Carol Rosenberg, Controversial Guantánamo judge joins Jeff Sessions in immigration judge ceremony, MCCLATCHY (September 14, 2018) .................... 25 Carol Rosenberg, Military judge wants civilian attorneys arrested for quitting USS Cole case, MIAMI HERALD (Feb. 13, 2018) ......................................................... 18 Carol Rosenberg, New Air Force colonel to preside in Guantánamo’s stalled USS Cole case, MIAMI HERALD (August 9, 2018) ........................................................ 5 Code of Conduct for United States Judges (2014) ................................................. 32 Jack Metzler, Cleaning Up Quotations, 18 J. OF APPELLATE PRACTICE AND PROCESS (2017) ........................................... 28 Memorandum for Trial Counsel (July 9, 2018) ...................................................... 39 MOORE’S FEDERAL PRACTICE ................................................................................. 29 Sessions Affirms Use of Prison; Attorney General Sessions Visits Guantanamo Bay Prison, Associated Press (July 8, 2017) .............................................................. 39 *The Guide to Judiciary Policy (2014) ....................................................... 32, 33, 35 United States v. al-Badawi, et al., No. 98-CR-1023 (S.D.N.Y., unsealed May 15, 2003) .......................................... 4 vii (Page 8 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 9 of 66 JURISDICTION This Court has exclusive supervisory jurisdiction over military commission proceedings under the Military Commissions Act of 2009, 123 Stat. 2190 and the United States Court of Military Commission Review pursuant 10 U.S.C. § 950g. This Court has the remedial authority to issue all writs necessary and appropriate in aid of that jurisdiction pursuant to 28 U.S.C. § 1651. RELIEF SOUGHT Petitioner, Abd Al Rahim Hussein Al-Nashiri, asks this Court to issue a writ of mandamus and prohibition directing the vacatur of the orders convening the military commission convened to try him due to judicial misconduct that has irreparably harmed his ability to mount a defense and the public integrity of a capital trial. In the alternative, he asks this Court to direct the vacatur of all orders entered by the military commission judge whilst he was under a concealed and disqualifying ethical conflict, including but not limited to, all orders presently under review by the Court of Military Commission Review (CMCR). In the alternative, and at a minimum, he asks this Court to direct the CMCR to order an evidentiary hearing to ascertain the full scope and effect of the misconduct. 1 (Page 9 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 10 of 66 ISSUES PRESENTED This petition seeks to remedy disqualifying judicial misconduct in a capital case. On February 21, 2018, the United States took an interlocutory appeal to the United States Court of Military Commission Review (CMCR) from an order of abatement issued by military commission judge Col Vance Spath, USAF, in the capital military commission convened to try Petitioner. In September 2018, while this appeal was pending, Petitioner discovered that for at least a year prior, Col Spath had been secretly negotiating future employment with the Justice Department as an immigration judge, a position he ultimately obtained on September 28, 2018. During these secret negotiations, Col Spath conducted Petitioner’s trial under what he described as an “aggressive schedule” that appears to have been driven by a now obvious goal: to rush Petitioner’s capital trial to completion so that Col Spath could retire from the military at full pension and assume additional employment in the Justice Department. When Col Spath confronted obstacles to this goal, he took a series of then-inexplicable actions in favor of haste that resulted in the collapse of Petitioner’s longstanding defense team, the wrongful imprisonment of a Marine Corps Brigadier General, and a total breakdown in the public reputation of the proceedings. As all of this transpired, Col Spath routinely delivered stream-of-consciousness rants, often addressed directly to the public, 2 (Page 10 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 11 of 66 against the “defense community,” “fake news,” the American Bar Association, and the media coverage of his behavior. Having discovered the previously undisclosed ethical conflict, Petitioner asked the CMCR to dismiss, to vacate the orders previously issued by Col Spath whilst he was under this disqualifying conflict and, in the alternative, to order discovery to ascertain the full scope of Col Spath’s misconduct. In a two-page order, the CMCR denied all relief citing Petitioner’s purported failure to bring forward evidence that Col Spath had, in fact, engaged in the misconduct alleged (i.e. negotiated for employment with the Justice Department). Col Spath’s secret negotiation for employment with the Justice Department violated long-settled, bright-line rules governing judicial conduct. Given the active and continuous role of the Justice Department in prosecuting Petitioner’s case and given the evident effect those secret negotiations had on Col Spath’s behavior toward Petitioner, Col Spath’s misconduct was disqualifying and prejudicial. Petitioner therefore asks this Court to issue a writ of mandamus and prohibition directing any one of three alternative forms of relief stated above to remedy the irreparable harms he has already suffered and to protect the integrity of this country’s judicial proceedings. 3 (Page 11 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 12 of 66 STATEMENT OF FACTS A. Background of the military commission proceedings convened to try Petitioner. In 2008, the Department of Defense issued orders pursuant to the Military Commissions Act of 2006, 120 Stat. 2600, directing that Petitioner to stand trial before a military commission for his alleged involvement in plots to bomb the USS COLE in Yemen in October 2000 and a French oil tanker in Yemen in 2002. These initial charges carried the death penalty and mirrored a capital indictment that has been pending in the Southern District of New York since 2003 in which Petitioner is named as an unindicted co-conspirator. United States v. al-Badawi, et al., No. 98-CR-1023 (S.D.N.Y., unsealed May 15, 2003). The 2008 military commission was disbanded in 2009 following President Obama’s taking office and the initiation of an agency review of the military commissions. In 2011, the Department of Defense issued Military Commission Order 11-02 (September 28, 2011) pursuant to the Military Commissions Act of 2009, 123 Stat. 2190 §§ 18011807 (codified at 10 U.S.C. §§ 948a, et seq.), directing that Petitioner again stand trial before a military commission on substantively identical charges. Since 2008, the military commission proceedings against Petitioner have been plagued by irregularity, political interference, and delay, including three interlocutory appeals brought by counsel for the prosecution to the Court of Military Commission Review (CMCR). Petitioner’s case has proceeded fitfully 4 (Page 12 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 13 of 66 over the past decade for a number of reasons. But the root cause of most of these issues is the fact that Petitioner was held incommunicado in secret “black sites” as part of the CIA’s Rendition, Detention, and Interrogation Program for four years. During this time, he was subjected to “total darkness…loud continuous noise, isolation, [] dietary manipulation…[t]hey were kept naked, shackled to the wall, and given buckets for waste…there is no question that [Petitioner] was ‘waterboarded’ … forced into ‘stress positions’ … menaced with a handgun … There is also evidence [Petitioner] was, in fact, forcibly sodimized, possibly under the pretext of a cavity search.” In re Al-Nashiri, 835 F.3d 110, 141-42 (D.C. Cir. 2016) (Tatel, J., dissenting). Over the course of the past decade of proceedings, three different military commission judges have presided over Petitioner’s case. Relevant here, on July 10, 2014, the Chief Judge of the Military Commissions Trial Judiciary assigned Col Vance Spath, USAF, to preside over Petitioner’s military commission. On August 6, 2018, Col Spath was replaced by Col Shelly Schools, USAF, after it was publicly announced that Col Spath would be retiring from the Air Force, effective November 1, 2018. Carol Rosenberg, New Air Force colonel to preside in Guantánamo’s stalled USS Cole case, MIAMI HERALD (August 9, 2018). 5 (Page 13 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 14 of 66 B. Col Spath refuses to address a microphone discovered in attorney-client meeting spaces. On June 14, 2017, the Chief Defense Counsel of the Military Commissions Defense Organization (MCDO), BGen John Baker, USMC, issued a memorandum advising defense counsel that the meeting spaces in which military commission defendants met with their lawyers could not guarantee confidentiality. He 1 cautioned counsel to “not conduct any attorney-client meetings at Guantanamo Bay, Cuba until they know with certainty that improper monitoring of such meetings is not occurring.” He then continued: At present, I am not confident that the prohibition on improper monitoring of attorney-client meetings a GTMO as ordered by the commission is being followed. My loss of confidence extends to all potential attorney-client meeting locations at GTMO. Consequently, I have found it necessary as part of my supervisory responsibilities under 9-1a.2 and 9-1a.9 of the Regulations for Trial by Military Commission to make the above-described The Chief Defense Counsel is an office created by Congress, 10 U.S.C. § 948k(d), to administer the provision of legal defense services to defendants before military commissions. The Chief Defense Counsel is a general officer nominated by the President and confirmed by the Senate, 161 Cong. Rec. S4555 (daily ed., Jun. 23, 2015) (confirmation as Chief Defense Counsel and Brigadier General), after being selected by a joint selection board. Under the applicable regulations, the Chief Defense Counsel serves in a role similar to that of a federal district judge under the Criminal Justice Act, respecting the supervision of defense counsel who appear before military commissions. See Reg. T. Mil. Comm. 9-1, et seq. He is the sole actor within the military commission system empowered to assign defense counsel (a process called “detailing”), to supervise defense counsel, and to excuse defense counsel. R.M.C. 505(d)(2). 1 6 (Page 14 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 15 of 66 recommendations to all MCDO defense counsel. Whether, and to what extent, defense teams follow this advice is up to the individual defense team. Brig. Gen. John Baker, USMC, Improper Monitoring of Attorney-Client Meetings (June 17, 2017) (Attachment C). This action was taken in light of a long history of intrusions by government agents into the attorney-client confidentiality of military commission defendants. 2 In October 2011, for example, the JTF-GTMO guard staff confiscated privileged legal materials from the detainees’ cells. The Legal Department at the Naval Base read defense counsel’s correspondence and in January 2012, the Chief Defense Counsel issued an ethics instruction prohibiting defense counsel from using the Guantanamo legal mail system for privileged communications as incapable of safeguarding attorney client-privileged communications. As a consequence, defense counsel were unable to exchange confidential written communications with their client for almost two years until a consent order regarding privileged written communications management was entered. 2 Even attorney-client work product has not been immune from improper intrusion. In March 2013, defense counsel discovered, through a series of IT-related failures, that some unknown amount of privileged work product had been provided to counsel for the prosecution, IT personnel not bound by non-disclosure agreements, and other unknown entities in the government. It was also discovered, despite assurances to the contrary, that active content monitoring of defense counsel’s internet usage was being undertaken on a government-wide basis. As a consequence of this and other similar episodes, the Chief Defense Counsel issued an ethics instruction prohibiting defense counsel from using Department of Defense computer networks, including email, to transmit privileged or confidential information. Efforts to mitigate the risk of improper disclosure more than tripled the amount of time necessary to draft and file pleadings. And the previous military commission judge presiding over Petitioner’s case was forced to abate the proceedings for two months as a result. 7 (Page 15 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 16 of 66 After receiving this memorandum, Petitioner’s former military commission defense counsel filed a motion with Col Spath seeking permission to notify Petitioner of BGen Baker’s concerns. Col Spath denied Petitioner’s motion on the ground that he was not authorized to approve the disclosure of classified information and because counsel for the prosecution “as officers of the court, have represented facts which negate what the Defense seeks to disclose to the Accused.” AE369OO (July 7, 2017). Petitioner’s former counsel subsequently discovered evidence that unambiguously contradicted the prosecution’s previous assurances. The precise factual basis for this representation remains classified and is contained in the attached Dolphin Declaration. Declaration of Marc Dolphin (August 4, 2017) (Attachment E). Petitioner’s undersigned counsel can represent, based upon later public admissions by counsel for the prosecution in the course of litigation, however, that a hidden microphone was discovered in his attorney-client meeting room. CMCR Case 18-002, Appellant’s Opposition to Appellee’s Motion to Dismiss for Want of Jurisdiction under 10 U.S.C. § 950d (March 5, 2018). This was not the first time an undisclosed microphone was discovered in Petitioner’s attorney-client meeting spaces. In December 2012, military commission defense counsel traced the brand name of one of the smoke detectors in the attorney-client meeting rooms to a private surveillance company. See 8 (Page 16 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 17 of 66 AE149C (May 16, 2013). This “smoke detector” was, in truth, a disguised microphone connected to a nearby “listening room.” Upon discovering this most recent hidden microphone and other facts described in the Dolphin Declaration, Petitioner’s former counsel again sought relief from Col Spath. Petitioner moved for discovery, an evidentiary hearing, and orders preventing further intrusions. Petitioner’s counsel also sought, in the interim, permission to conduct attorney-client meetings in a designated area of the ELC, where confidentiality could be more reasonably assured. On September 20, 2017, Col Spath denied Petitioner’s requests for discovery and other relief. These rulings remain classified. However, it can be stated publicly that Col Spath concluded, as a matter of law, that Petitioner’s entitlement to attorney-client confidentiality extended only to the prohibition on counsel for the prosecution using his attorney-client communications as evidence. In other words, Col Spath determined that Petitioner had no expectation of confidentiality when conferring with counsel, except insofar as his communications might be used against him in the military commission proceedings. And because of Col Spath’s previous rulings, Petitioner’s counsel could not inform Petitioner of the broader risks to confidentiality they had discovered. 9 (Page 17 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 18 of 66 C. Col Spath attempts to countermand BGen Baker’s excusal of civilian counsel. Mr. Richard Kammen, Petitioner’s former learned counsel, brought Col 3 Spath’s orders to BGen Baker, the Chief Defense Counsel. BGen Baker reviewed both Col Spath’s classified orders as well as the underlying classified facts. Pursuant to his obligations as a member of the Indiana Bar, Mr. Kammen also sought an expert ethics opinion from Prof. Ellen Yaroshefsky, the Howard Lichtenstein Distinguished Professor of Legal Ethics and Executive Director of the Monroe Freedman Institute for the Study of Legal Ethics at Hofstra University School of Law. He provided her with an unclassified version of the history of government interference in attorney-client relationships within the military commissions and general representations facts contained in the Dolphin Declaration. Prof. Yaroshefsky, in turn, concluded that Mr. Kammen’s continued representation of Petitioner was unethical: You cannot, consistent with your ethical obligation continue to represent [Petitioner]. Rule 1.16(a)(1) of Professional Conduct mandates that you withdraw from representation. It provides that a lawyer “shall withdraw from representation of a client if the representation involves a violation of the rules of professional conduct or Under the Military Commissions Act and the rules governing military commissions, defendants are entitled to counsel learned in the law of capital litigation in “any case” in which the death penalty is sought R.M.C. 506(b); see also 10 U.S.C. § 949a(b)(2)(C)(ii). 3 10 (Page 18 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 19 of 66 other law.” You are required to withdraw as his counsel because continued representation will result in a violation of IRPCs and MRPCs 1.1, 1.3., 1.4 and 1.6. AE389, Attachment C (October 16, 2017). 4 On October 6, 2017, Mr. Kammen and two other civilian defense counsel submitted applications to BGen Baker to withdraw from representing Petitioner on the grounds that their continued involvement in this case violated the ethical rules to which they are subject. AE389, Attachment C (October 16, 2017). Under the unique rules the Secretary of Defense has promulgated to govern military commissions, the Chief Defense Counsel is given the sole authority to supervise and excuse defense counsel after an attorney-client relationship has been formed. R.M.C. 505(d)(2) (2010). Pursuant to that authority, BGen Baker determined that good cause existed and granted these applications, specifically referencing the classified information to which he was privy. AE389, Attachment C (October 16, 2017); AE389C (October 24, 2017). BGen Baker then filed a notice with the Convening Authority (the Department of Defense official responsible, inter alia, for the funding of the military commissions) that he had “begun the process of locating a qualified outside learned counsel to serve as [Petitioner]’s learned All unclassified pleadings are available at http://www.mc.mil and filed according to Appellate Exhibit (AE) numbers. 4 11 (Page 19 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 20 of 66 counsel and I will submit a request for funding approval as soon as I have identified such counsel.” AE389, Attachment C (October 16, 2017). The excusal of civilian counsel left Petitioner represented by LT Alaric Piette, USN, a Navy Judge Advocate, who graduated from law school in 2012, has no capital litigation experience, and has never tried a homicide case. On October 5 13, 2017, LT Piette filed notices with the military commission of the civilian counsels’ excusal. LT Piette also moved to continue proceedings until BGen Baker had located new learned counsel. AE389 (October 16, 2017). Col Spath denied LT Piette’s motion to continue and on the morning of October 31, 2017, Col Spath convened a hearing of the military commission at which he ordered BGen Baker to testify about his decision to excuse Mr. Kammen and Petitioner’s other civilian counsel. BGen Baker objected to providing testimony beyond the documentary record, asserting attorney-client and deliberative process privilege. Col Spath then attempted to order BGen Baker “to rescind the direction you gave when you excused both learned outside – appointed Due to separate rules governing the ethical supervision of military officers, LT Piette submitted a separate request for ethics advice to the Navy Judge Advocate General, which had not yet rendered its opinion at the time Petitioner’s civilian counsel requested to withdraw. 5 12 (Page 20 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 21 of 66 learned counsel and the two civilians.” Trans. 10042. When BGen Baker asserted 6 that this order was ultra vires, Col Spath became irate, refused to accept pleadings or argument from BGen Baker, and stated explicitly, “I’m denying you the opportunity to be heard.” Trans. 10054. Col Spath then held BGen Baker in contempt, ordering him confined for 21 days and to pay a $1,000 fine. BGen Baker subsequently obtained a writ of habeas corpus in the U.S. District Court for the District of Columbia vacating Col Spath’s order as unlawful. Baker v. Spath, __ F. Supp. 3d __, 2018 WL 3029140 (D.D.C. June 18, 2018). The following day, Mr. Kammen filed a federal action seeking, inter alia, to enjoin his involuntary recall to Petitioner’s case. Kammen v. Mattis, No. 1:17-cv03951 (S.D. Ind., filed November 2, 2017). And on November 3, 2017, the district court granted Mr. Kammen’s request for a temporary restraining order. Kammen v. Mattis, No. 1:17-cv-03951, Dkt. 15 (S.D. Ind., November 3, 2017). D. Col Spath orders that military commission hearings continue in the absence of learned counsel. From the bench, Col Spath announced his intention to continue to move forward with the case, including through trial and capital sentencing, regardless of Petitioner has included all cited to excerpts of the record of trial sequentially as Attachment D. All other unclassified transcripts of proceedings are available at http://www.mc.mil. 6 13 (Page 21 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 22 of 66 whether Petitioner was represented by learned counsel or anyone other than LT Piette. Trans. 10048. This urgent press forward was to meet what Col Spath described as his “aggressive 2018 calendar year schedule, with significant time to be spent here at Guantanamo Bay,” Trans. 12344, which he had issued on April 11, 2017. AE203Q (April 11, 2017). From November 2017 through February 2018, Col Spath proceeded apace with his “aggressive schedule,” including the holding of evidentiary hearings, the testimony of witnesses, and the ruling on the admission of evidence. Col Spath also relieved the prosecution of any further discovery obligations relating to Petitioner’s treatment in U.S. custody, Trans. 10585, despite the fact that on September 1, 2017, counsel for the prosecution represented that it was unlikely to meet its obligations to produce such discovery until the middle of 2018. AE203S (September 1, 2017). All the while, Petitioner was represented solely by LT Piette, who respectfully declined to take substantive positions or to cross-examine witnesses in the absence of learned counsel. In support of his position, LT Piette submitted an affidavit from Ms. Emily Olsen-Gault, Director and Chief Counsel, ABA Death Penalty Representation Project, who explained the need for learned counsel at all critical stages of a death penalty case. AE389K, Attachment B (November 6, 2017). On November 6, 2017, Col Spath sua sponte ordered Prof. Yaroshefsky and 14 (Page 22 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 23 of 66 Ms. Olsen-Gault to testify from a video-teleconference site in Virginia. Ms. OlsenGault testified about the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and reiterated her view that LT Piette was not competent to represent Petitioner without the assistance of learned counsel under the ABA Guidelines. During subsequent hearings, Col Spath repeatedly berated LT Piette for refusing to proceed in the absence of learned counsel and repeatedly voiced his personal “frustration” with an ill-defined group that he and the prosecution derisively called “the defense community.” See, e.g., Trans. 11538. This defense community, he contended, were “just violat[ing] orders willy-nilly,” id. 12370, and attempting to mount a “revolution to the system.” Id. 12373. Col Spath’s expressed animus toward the “defense community” prompted him to summarily rule against Petitioner and anyone else he deemed complicit in the “defense community” without reviewing their pleadings. For example, at the outset of a hearing on Monday, February 12, 2018, Col Spath addressed the issue of a subpoena he issued for two of Petitioner’s former counsel to appear. Represented by outside counsel, those attorneys moved to quash the subpoena and Col Spath, from the bench, refused to even accept their pleadings, stating “the docketing order I think was a fair indication that I’m not granting any motion to quash.” Trans. 11536. Col Spath continued, stating “I’m not accepting those. I’ve 15 (Page 23 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 24 of 66 already seen them. There’s nothing new.” Ibid. While Petitioner takes no position on the propriety of his former counsel being subpoenaed in this fashion, he does feel compelled to note that counsel for the prosecution responded to this remark by stating, “Sir, about these third-party filings … I understand that you’re not going to accept them, but I do believe there is new information in there that should concern the commission.” Id. 11537. Col Spath then engaged counsel for the prosecution in a stream-ofconsciousness colloquy that veered between the rudiments of his authority as a military commission judge, to Petitioner’s former attorneys’ employment by the federal government, to the efforts of Petitioner’s then-lone trial attorney, LT Piette, to secure replacement learned counsel. Trans. 11538-70. Col Spath even mocked the then-classified and still unexplained discovery of the microphone in Petitioner’s attorney-client meeting room as “fake news,” addressing the public directly and casting Petitioner’s former attorneys as fabricating the impetus for their withdrawal. Id. 11558. 7 This was despite the former Convening Authority’s recommendation to “the Joint Detention Group that a ‘clean’ facility be designated or constructed which would provide assurances and confidence that attorney-client meeting spaces are not subject to monitoring.” Harvey Rishikof, Convening Authority, Memorandum for BGen John G. Baker, Chief Defense Counsel (November 21, 2017) available at https://www.documentcloud.org/documents/4273591-Convening-Authoritymemo-for-Brig-Gen-John-Baker.html. 7 16 (Page 24 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 25 of 66 Col Spath, for his part, was candid about how personally invested he had become in Petitioner’s case saying, “And in the spirit of full disclosure, there are days, right, where this is tough work. And it would be a lot easier for me to say I’m going home, which is exactly, by the way, what happened on this side, which is so frustrating: I’m going home.” Trans. 11552. And before turning to the taking of testimony, Col Spath again harangued LT Piette for refraining from taking substantive positions in the absence of learned counsel: MJ [Col SPATH]: Again, I’ve ruled on that. And I’ve ruled – first, there are jurisdictions that disagree with you, you know that. DDC [LT PIETTE]: Uh-huh. MJ [Col SPATH]: Flat out. There are jurisdictions that frankly do not buy into this ABA requirement – a policy group – this ABA requirement – and it’s not even a requirement, a guideline of capitally qualified counsel. There are jurisdictions who believe that is not helpful for a variety of reasons, many of them political, frankly, and you know that. Id. 11568. Addressing the refusal of Petitioner’s former counsel to return to the case, Col Spath initially stated that he was not going to issue “any rulings from the bench on this issue today, because I want to reflect, and reflect in the right state of mind.” Trans. 11719. Later that same afternoon, however, Col Spath announced, “I’m going to issue warrants of attachment [ordering U.S. Marshalls to arrest 17 (Page 25 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 26 of 66 Petitioner’s former counsel] – I plan to do it tomorrow – to have them brought sometime on Thursday or Friday.” Id. 11910. This order to arrest Petitioner’s former counsel was covered in the press. See, e.g., Carol Rosenberg, Military Judge Wants Civilian Attorneys Arrested for Quitting USS Cole Case, MIAMI HERALD (February 13, 2018). The following day, however, Col Spath denied having ever made this remark and lashed out at the media for its coverage: And yes, I use CAAFlog. I don’t read the comments and I tend not to read the analysis; I don’t need their help, because some people suggest it has a bias. … So I was a little surprised last night when I opened it to find this case making their – the top of the banner, and noticed very quickly that it said that I had ordered, or was going to order today, writs be issued against civilians to be dragged to GTMO. Imagine my surprise. Fortunately, there was a link to figure out where in the wide, wide world of sports is that coming from. And it’s coming from a [Miami Herald] reporter who we brought down here and we bring down here willingly, and you know, put up, who got it wrong. I said very clearly yesterday I want draft writs so I have options as I figure out what to do, and I hadn’t made a decision yet. I don’t know if I could have been more clear. *** I have no control. But it’s just always remarkable to me that words matter and accuracy matters when we are dealing with significant issues that affect people. … In that same article, again, talks about the secret court. I look out at all the people we bring. We haven’t had a classified session in months. 18 (Page 26 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 27 of 66 Trans. 11924-25. In response to follow-on press reporting fact-checking his denial, Col Spath returned to the issue the next day and claimed that his statement was misheard by the press and the court reporter, stating, “I’ve had a chance to listen to audio, I actually know what I said, which is, of course, what I think you all heard, ‘if I issue the subpoenas,’ but [the public] can’t listen to audio because we don’t put the audio out there.” Id. 12286. Col Spath openly recognized that he was acting outside of his “lane” as a presiding judicial officer: But I’ve got to tell you I feel like I’m in the wilderness on the – fighting this particular issue because it’s not my fight. I am attempting to do what I can, but really, what are you all doing to – what are you all doing to make sure the people who are doing this are held responsible? I can’t do it, ‘that’s clear. And again, is it in my lane? How much is in my lane? Trans. 11551-52. And he admitted that he was consciously trying to be careful about what he said on the record so as to not end up like “the military judge in a courts-martial, Hassan, [who took] on a battle that was not his, right, the beard issue, and ultimately [had] to recuse himself.” Ibid. Yet the day after this remark, he demanded testimony from a senior Pentagon official about “the clear evidence of [defense] misconduct in all of these cases[.]” Id. 11911. This senior Pentagon 8 It is unclear to what Col Spath was referring when he said, “all these cases.” Col Spath and the prosecution have endeavored to paint the current dysfunction in 19 8 (Page 27 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 28 of 66 official testified, however, that it was Department of Defense policy to respect to the professional judgment of BGen Baker as the Chief Defense Counsel. On February 16, 2018, Col Spath began the day’s hearing with a thirtyminute invective. “Over the last five months – yes, my frustration with the defense has been apparent. I said it yesterday and I’ll continue to say it. I believe it’s demonstrated lawlessness on their side; they don’t follow orders.” Trans. 1236465. Instead of bona fide legal questions, Col Spath characterized ongoing disputes over the lawfulness of his orders, such as the jailing of the Chief Defense Counsel, as personal attacks. “I’m not ordering the Third Reich to engage in genocide,” he complained. “This isn’t My Lai, or My Lai.” Trans. 12369. “These last few months,” Col Spath continued, “I think we can all say, have demonstrated significant flaws within the commission process, particularly within the defense organization, and it demonstrates an organization intent on stopping the system, not working within the system that they signed up to work Petitioner’s case as a consequence of MCDO’s “mismanagement” or what Col Spath later described as its effort to foment a “revolution to the system.” Trans. 12373. There are at least ten other active cases under the supervision of the MCDO that are in various stages of trial and post-trial proceedings. The Chief Defense Counsel has refused to allow defense counsel withdraw, even with the consent of the accused, when he determined that no good cause had been shown. See United States v. Mohammed, et al., AE380SS (June 28, 2016). If there is some vast “defense community” conspiracy, there is no indication that it has affected any of these other cases, which are proceeding in the ordinary course. 20 (Page 28 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 29 of 66 within.” Id. 12372. He even accused the Deputy Chief Defense counsel of wearing a “contemptuous” uniform at a hearing earlier in the week, specifically the Army’s Class “B” uniform: “I’m not oblivious; I know what that says. What little respect you have for the commission is obvious. A short-sleeve shirt, no tie, not coat; I get it. That’s the message. That’s been the message from the defense for five months. And it’s well received. I got it. I’ve heard you.” Trans. 12366. This was despite the fact that the Deputy was required to wear his Class B uniform in commission proceedings under the governing rules because the Deputy was not appearing on behalf of an accused. 9 Concluding the proceeding, Col Spath again reiterated how personally invested he had become in the disputes over his authority within the military commission process. “I’ve got to tell you,” he admitted, “after 26 years of service, it’s shaken me more than I would have expected.” Trans. 12373. E. Abatement and relevant proceedings in the Court of Military Commission Review. At the conclusion of the hearing on February 16, 2018, Col Spath ordered an indefinite abatement of proceedings: We’re done until a superior court tells me to keep going. It can be CMCR. It can be the Washington – or the District See Chief Defense Counsel Policy Memorandum 5-15 Ch. 5, MCDO Uniform and Civilian Attire Policy for Military Personnel §1(b) (May 18, 2017). 9 21 (Page 29 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 30 of 66 in D.C. They’re all superior to me. But that’s where we’re at. We need action. We need somebody to look at this process. We need somebody to give us direction. I would suggest it sooner than later, but that’s where we’re at. *** We are in abatement. We’re out. Thank you. We’re in recess. Trans. 12377. On February 21, 2018, the prosecution gave notice of its intent to seek an interlocutory appeal to the Court of Military Commission Review (CMCR). In its opening brief, counsel for the prosecution asked the CMCR to affirm three of Col Spath’s orders and to vacate a fourth. Various motions and pleadings have been 10 filed in that proceeding, including challenges to subject-matter jurisdiction, which have not yet been ruled upon and which are not relevant to the relief Petitioner seeks in the instant petition. 11 Counsel for the prosecution asked the CMCR to: 1) affirm Col Spath’s ruling, that the military commission judge, not the Chief Defense Counsel, should be the excusal authority for defense counsel; 2) affirm Col Spath’s ruling that learned counsel was only necessary to the “extent practicable”; 3) affirm Col Spath’s ruling that the absence of counsel was a strategic choice by the defense; and 4) overturn Col Spath’s abatement order. See CMCR Case 18-002, Brief On Behalf Of Appellant (March 5, 2018). 10 Petitioner challenged the CMCR’s subject-matter jurisdiction over 1) the abatement order, insofar as abatement orders are not within the narrow categories of claims over which the CMCR is given interlocutory appellate jurisdiction by 10 U.S.C. § 950d, 2) counsel for the prosecution’s request to have the CMCR to affirm orders issued by the military commission in its favor, and 3) the appeal writ 22 11 (Page 30 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 31 of 66 Relevant here, on September 13, 2018, Petitioner moved, inter alia, to dismiss after it was discovered that Col Spath had been operating under a disqualifying ethical conflict at the time he entered the orders under review. This disqualification, in turn, required the vacatur of his orders dating back potentially 742 days and therefore included the orders ostensibly giving rise to the CMCR’s subject-matter jurisdiction. The reason for the disqualification was that Col Spath had, unbeknownst to counsel for Petitioner, been pursuing a position as an immigration judge at the Executive Office for Immigration Review (EOIR) for at least the previous year. At no time, however, did Col Spath disclose this fact. Petitioner’s counsel first heard credible reports that Col Spath was pursuing such employment in July 2018 and sent counsel for the prosecution a discovery request to determine if the rumors were true. The prosecution denied the discovery request, asserting that Petitioner failed to prove that the Justice Department had hired Col Spath as an employee. “This request,” counsel for the prosecution asserted, “is wholly conclusory in nature and fails to provide any evidence or proof in support.” Government Response to Defense Request for Discovery (September 5, 2018) (Attachment B) (original emphasis). “Based on its review of the large, due to a jurisdictional defect in the underlying convening order that was created by the Supreme Court’s intervening decision in Lucia v. SEC, 138 S.Ct. 2044 (2018). 23 (Page 31 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 32 of 66 unsubstantiated assertions provided in the Defense discovery request, the Government finds no reasonable objective basis to question the impartiality of the former presiding Military Judge and therefore no cause to act on the request.” Ibid. Five days after tendering this negative response, Attorney General Sessions greeted his newest employees at a public ceremony in which he hailed “the Largest Class of Immigration Judges in History for the Executive Office for Immigration Review.” In his remarks, the Attorney General warned the new immigration 12 judges of the “good lawyers” who would come before them representing noncitizens, “just like they do in federal criminal court,” and likened these defense 13 lawyers to “water seeping through an earthen dam to get around the plain words of [immigration law] to advance their clients’ interests.” The Attorney General then 14 attended a reception with these new employees, where a press photographer captured the Attorney General standing next to Col Spath, who is pictured below wearing a dark suit and blue tie: 12 Available at https://www.justice.gov/eoir. The Attorney General’s reference to criminal defense attorneys appears to have been unscripted as it does not appear in his prepared remarks, available at https://www.bing.com/videos/search?q=attorney+general+remarks+to+largest+cla ss+of+immigration+judges. 13 Available at https://www.justice.gov/opa/speech/attorney-general-sessionsdelivers-remarks-largest-class-immigration-judges-history. 14 24 (Page 32 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 33 of 66 Carol Rosenberg, Controversial Guantánamo judge joins Jeff Sessions in immigration judge ceremony, MCCLATCHY (September 14, 2018). According to an EOIR press release, this most recent group of immigration judges completed the appointment process in an average of “approximately 266 days, down from an average of 742 days just one year ago.” Col Spath was 15 therefore potentially negotiating for this employment for the final two years he was presiding over Petitioner’s military commission. Petitioner contended below that the public record was sufficient to establish that Col Spath was proceeding under an undisclosed conflict or, at a minimum, the appearance of a disqualifying conflict. Petitioner further recognized that due to the Available at https://www.justice.gov/opa/pr/executive-office-immigrationreview-announces-largest-immigration-judge-investiture-least. 15 25 (Page 33 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 34 of 66 prosecution’s refusal to turn over discovery, the record was still uncertain respecting the precise dates and terms on which Col Spath applied, interviewed, and accepted employment as an immigration judge. Petitioner therefore asked, in the alternative, that the CMCR compel discovery relevant to the question of Col Spath’s employment negotiations. This would, Petitioner contended, establish with certainty which rulings were tainted by the undisclosed conflict. Counsel for the prosecution opposed this motion and contended that the issue was not properly before the CMCR, insofar as there had been no hearing below and that Petitioner was not entitled to raise issues in an interlocutory appeal taken under 10 U.S.C. § 950d. Counsel for the prosecution also contended that there was “no authority” for the proposition that “an Executive Branch judge applying for another judicial position is automatically disqualified from Appellee’s case from the moment of application” or that “automatic disqualification is required when the same federal department employs both the prosecution counsel and the judge.” C.M.C.R Case No. 18-002, Appellant’s Opposition to Motion to Vacate Rulings and Compel Discovery, at 13 (September 18, 2018). The prosecution disputed whether Col Spath had applied to be an immigration judge and “[e]ven if it is true that Judge Spath is now, after retiring from active duty, associated with an Executive Branch agency other than DOD, such employment does not mean that he would have lacked the impartiality to preside over a DOD26 (Page 34 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 35 of 66 convened Commission.” Id. at 24. Finally, it contended that Petitioner’s motion should be construed as a petition for an extraordinary writ and denied because Petitioner’s entitlement relief was not clear and indisputable. Id. at 25-26. On September 28, 2018, the CMCR denied all relief. In a two-page order, the CMCR held: Appellee does not indicate when Judge Spath allegedly negotiated with DOJ for employment. We take judicial notice that Judge Spath is scheduled to retire from the Air Force on November 1, 2018. None of appellee’s contentions were raised before the military commission because the case has been abated. Thus, we have no factual record or findings of the military judge at the trial level to support appellee’s allegations for this Court to review. CMCR Case No. 18-002, Order (September 28, 2018) (Attachment A). Without further analysis, the CMCR concluded that Petitioner had failed to demonstrate a “clear and indisputable” right to relief under Cheney v. U.S. District Court, 542 U.S. 367, 381 (2004). The same day as the CMCR issued its order, the Justice Department announced that “Attorney General Jeff Sessions appointed Vance H. Spath to begin hearing cases [before the Arlington Immigration Court] in October 2018.” Department of Justice, Press Release: EOIR Swears in 46 Immigration Judges, at 11 (September 28, 2018). 16 16 Available at https://www.justice.gov/eoir/page/file/1097241/download 27 (Page 35 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 36 of 66 REASONS FOR GRANTING THE WRIT In the military commission context, the All Writs Act empowers this Court to “issue all writs necessary or appropriate in aid of our jurisdiction such that we can issue a writ of mandamus now to protect the exercise of our appellate jurisdiction later.” In re Al-Nashiri, 791 F.3d 71, 75-76 (D.C. Cir. 2015) (internal quotations omitted) (original emphasis). In particular, this Court has reaffirmed “Mandamus is an appropriate vehicle for seeking recusal of a judicial officer during the pendency of a case, as ordinary appellate review following a final judgment is insufficient to cure the existence of actual or apparent bias— with actual bias ... because it is too difficult to detect all of the ways that bias can influence a proceeding and with apparent bias because it fails to restore public confidence in the integrity of the judicial process.” In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (cleaned up). 17 While mandamus is often described an “drastic and extraordinary remedy reserved for really extraordinary causes,” Cheney, 542 U.S. at 380 (cleaned up), questions of judicial disqualification present a special case in the law of mandamus. This is because questions of judicial ethics cast “a shadow not only This brief uses (cleaned up) to indicate that internal quotation marks, alterations, and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations, 18 J. OF APPELLATE PRACTICE AND PROCESS 143 (2017). 17 28 (Page 36 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 37 of 66 over the individual litigation but over the integrity of the federal judicial process as a whole. … In recognition of this point we have been liberal in allowing the use of the extraordinary writ of mandamus to review orders denying motions to disqualify.” Union Carbide v. U.S. Cutting Service, 782 F.2d 710, 712 (7th Cir. 1986); see also In re IBM, 618 F.2d 923, 926-27 (2d Cir. 1980); In re United States, 666 F.2d 690, 694 (1st Cir. 1981); 9 MOORE’S FEDERAL PRACTICE ¶ 110.13[10]. In fact, when matters of judicial disqualification arise, some circuits hold that a litigant is obliged, on pain of waiver, to petition for mandamus. See, e.g., United States v. Horton, 98 F.3d 313, 316 (7th Cir. 1996). On the merits, writs of mandamus turn on the three factors enumerated in Cheney, 542 U.S. at 380-81. And here, all three factors are readily satisfied. First, the issuance of the writ is the only means by which Col Spath’s disqualifying conduct can be remedied. Second, Col Spath clearly and indisputably disqualified himself from presiding over Petitioner’s military commission when he 1) failed to disclose his intent to retire; 2) secretly negotiated employment with the Justice Department; and 3) expressed and acted upon his acknowledged bias, indeed animus, against Petitioner’s counsel. Third, issuance of the writ under these circumstances is not only appropriate, but necessary, to protect the the integrity of the judicial system. 29 (Page 37 of Total) USCA Case #18-1279 I. Document #1754023 Filed: 10/04/2018 Page 38 of 66 THERE IS NO OTHER ADEQUATE MEANS OF OBTAINING RELIEF. This Court has consistently recognized that challenges to a judge’s fitness can and should be raised as via a writ of mandamus at the earliest opportunity. Mohammad, 866 F.3d at 473; see also In re Kempthorne, 449 F.3d 1265 (D.C. Cir. 2006) (mandamus disqualifying a special master); In re Brooks, 383 F.3d 1036 (D.C. Cir. 2004) (same); Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003) (mandamus disqualifying a court monitor). This is because “[w]hen the relief sought is recusal of a disqualified judicial officer … the injury suffered by a party required to complete judicial proceedings overseen by that officer is by its nature irreparable.” Cobell, 334 F.3d at 1139. And it is this “irreparable injury that justified mandamus.” Al-Nashiri, 791 F.3d at 79. Leaving these issues to the future appellate review is especially inadequate here given the current state of proceedings before the CMCR. The CMCR is presently reviewing the merits of a number of Col Spath’s rulings in the context of the prosecution’s third interlocutory appeal in this case. If Col Spath was disqualified due to bias, the very rulings under review are a nullity, thereby mooting the CMCR’s continuing review of their merits. As apparently contemplated by the CMCR, however, the question of whether Col Spath was disqualified from issuing those orders in the first place must wait an eventual remand after the CMCR has passed on the soundness of 30 (Page 38 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 39 of 66 those orders. Should the CMCR affirm some or all of Col Spath’s rulings on the merits, Petitioner will then have to persuade the military commission judge to vacate and reconsider orders that the CMCR will have already concluded were correct. It is not even clear what rules would govern such an exercise. And assuming the military commission judge treats the CMCR’s merits rulings as controlling, Petitioner will permanently lose the opportunity to litigate those issues fully and fairly before a neutral judge and fact-finder. II. PETITIONER’S ENTITLEMENT TO RELIEF IS CLEAR AND INDISPUTABLE. A. Secretly pursuing employment with the Justice Department whilst serving as a judge in a high-profile criminal case involving the Justice Department creates a disqualifying conflict of interest. The disqualification of a judge is governed by an objective test that is satisfied whenever there is a reasonable “appearance of partiality ... even though no actual partiality exists.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988). In evaluating whether there is such an appearance of partiality, “any doubts must be resolved in favor of recusal.” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003). When a judge pursues post-judicial employment, numerous canons of judicial conduct regulate the unique risks that such a job search poses to the public trust in the judicial system. The pursuit of employment necessarily threatens the 31 (Page 39 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 40 of 66 “public’s confidence in the integrity and impartiality of the judiciary” because of a judge’s natural temptation to stay in the good graces of prospective employers. Code of Conduct for United States Judges, Canon 2A (2014). The pursuit of employment impairs a judge’s ability to give their judicial duties “precedence over all other activities” because the timetables for scoring the best job may not coalesce with the timetables that justice requires for the cases already on the docket. Id. Canon 3. The pursuit of employment, particularly with large government employers, also puts the judge at risk of altering their behavior to curry favor with parties or firms who are likely to have an interest in matters before their court. Id. Canon 4D. These risks not only undermine the judge’s personal integrity but the public’s perception the judge’s integrity. That is why there are strict, bright-line ethical standards governing judges contemplating post-judicial employment. The Guide to Judiciary Policy (2014) states, for example, “After the initiation of any discussions with a law firm, no matter how preliminary or tentative the 18 As the Code on Judicial Policy itself states, the use of the phrase “law firm” is intended to “apply to other potential employers” without distinction. See also United States v. Sells Engineering, Inc., 463 U.S. 418, 471 (1983) (Burger, C.J., dissenting) (describing the Justice Department as the country’s “largest law firm”); Scott v. United States, 559 A.2d 745, 750 (D.C. 1989) (en banc) (“Nor does it change simply because the prospective employer is a component of the Department of Justice; the negotiations at issue for employment with a unit directly linked to 32 18 (Page 40 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 41 of 66 exploration may be, the judge should recuse on any matter in which the firm appears. Absent such recusal, a judge’s impartiality might reasonably be questioned.” 2B Guide to Judiciary Policy, Committee on Codes of Conduct Advisory Opinion No. 84: Pursuit of Post-Judicial Employment (2016). Furthermore, the Guide makes clear that: [A] judge should refrain from negotiating with a firm, if the firm’s cases before the court are of a character or frequency such that the judge’s recusal (which would be required) would adversely affect litigants or would have an impact on the court’s ability to handle its docket. In such cases, judicial duties would have to take precedence over the legitimate personal interest in post-judicial employment. Ibid. To that end, “A judge should not explore employment opportunities with a law firm that has appeared before the judge until the passage of a reasonable interval of time, so that the judge’s impartiality in the handling of the case cannot reasonably be questioned.” Ibid. The Guide then sets out detailed steps a judge seeking future employment must take to protect the integrity of the proceedings before them as well as the reputation of the judicial system more broadly. A judge contemplating future employment must: the prosecutor’s office are ethically analogous to negotiations for employment with a large private law firm.”). 33 (Page 41 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 42 of 66 1) “make[] known a future retirement or resignation date;” 2) refrain from “attend[ing] meetings or engag[ing] in communications with the judge’s future employer concerning the employer’s business” and, in particular, social functions because “attending social functions sponsored by a future employer gives rise to an appearance of impropriety; and 3) recuse and transfer cases involving prospective employers if doing so can be done without imposing an undue burden on litigants. And if such recusal would cause an undue burden, “a judge should not negotiate for future employment with a firm.” Ibid.; see also United States v. Mikhel, 889 F.3d 1003, 1028 (9th Cir. 2018) (crediting the actions of a district judge who “promptly and clearly disclosed the alleged grounds for recusal to the parties; [whose] only contact was with a local screening committee; [who] stated he would not seek remuneration for the position, and [where] there was no opportunity for him to negotiate salary, bonuses, or the like; his application was never considered on its merits by the Department of Justice or White House Counsel’s office; and he immediately withdrew his application when defendants filed their motion [objecting].”). As this Court is well-aware, these standards apply and recusal is the norm when a sitting judge is simply up for another judicial appointment. The Chief Judge of this Court, the Honorable Merrick Garland, recused himself from all cases, including cases on which he had already heard oral argument, for the year after President Obama nominated him to the Supreme Court. The Honorable Brett 34 (Page 42 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 43 of 66 Kavanaugh has also recused himself from pending cases since his nomination to the Supreme Court by President Trump. Similarly, magistrate judges up for re-appointment are required recuse themselves from any case involving a firm, institutions, or attorneys participating in a Merit Selection Panel. That includes not simply the lawyers themselves but, “where the United States Attorney or the Federal Public Defender serves on the panel, … all cases (criminal and civil) involving that attorney and that attorney’s office due to the direct supervisory role those officials have over the attorneys and the cases in their respective offices.” 2B Guide to Judiciary Policy, Committee on Codes of Conduct Advisory Opinion No. 97: Disqualification of Magistrate Judge Based on Appointment or Reappointment Process (2009). In addition to the basic norms of judicial conduct, a litigant has a constitutional right to judicial officer unbiased by the unique pressures of a job search as a clearly established matter of due process. A judge’s concern with future employment prospects is likely to create “a possible temptation to the average man as a judge … not to hold the balance nice, clear, and true between the State and the accused[.]” Tumey v. Ohio, 273 U.S. 510, 532 (1927). Such a bias, if uncorrected, “denies the latter due process of law.” Ibid. In assessing whether such a bias exists, “The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be 35 (Page 43 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 44 of 66 neutral, or whether there is an unconstitutional potential for bias.” Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016) (cleaned up). And the appearance of such a bias is self-evident when the parties or subject-matter of a case have had or will have a “significant and disproportionate influence” on the judge’s immediate career prospects. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884 (2009). Recusal in such circumstances is also the explicit requirement of the Manual for Military Commissions (2011), promulgated by the Secretary of Defense. Rule for Military Commission (R.M.C.) 902 lays out two standards for the disqualification of a military judge. The first, like the federal rules, disqualifies any judge from “any proceeding in which that military judge’s impartiality might reasonably be questioned.” R.M.C. 902(a). And specific to the particular issue here, the R.M.C. states that disqualification is required where a military judge has “an interest, financial or otherwise, that could be substantially affected by the outcome of the proceeding[.]” R.M.C. 902(b)(5)(C). In the post-judicial employment context, such interests can arise either because of how the timetables governing a military commission judge’s existing judicial duties might impair the availability of other employment opportunities or because of how the perception of a military commission judge’s performance in a particular proceeding might appeal to or discourage a prospective employer. 36 (Page 44 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 45 of 66 Unsurprisingly, in cases where these standards have been breached – even inadvertently – the decisions of reviewing courts have been exacting. The leading case is the Seventh Circuit’s decision in Pepsico, Inc. v. McMillen, 764 F.2d 458 (7th Cir. 1985); see also DeNike v. Cupo, 958 A.2d 446, 455 (N.J. 2008) (quoting Pepsico to hold that employment negotiations with a lawyer representing one of the parties, even after all substantive decisions had been rendered, is improper because “any sort of employment negotiations with a party— ‘preliminary, tentative, indirect, unintentional, [or] ultimately unsuccessful’ —right before or during a pending matter, reasonably call into question a judge's impartiality.”) (original emphasis). In Pepsico, a district judge had hired a headhunter to pursue future employment opportunities on his behalf and had specifically instructed the headhunter not to pursue firms appearing before his court. Unbeknownst to the judge and in direct violation of his instructions, the headhunter had made preliminary inquiries with a firm that was appearing before the judge. After the judge refused to recuse himself upon learning of the incident, claiming the breach was accidental, the Seventh Circuit issued a writ of mandamus directing the judge’s recusal. “The dignity and independence of the judiciary,” the Court held, “are diminished when the judge comes before the lawyers in the case in the role of a suppliant for employment.” Pepsico, 764 F.2d at 461. 37 (Page 45 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 46 of 66 Courts have held to the same standard when sitting judges seek government employment. In Scott, the en banc District of Columbia Court of Appeals vacated an attempted murder conviction where counsel for the prosecution had been assigned by the U.S. Attorney’s Office for the District of Columbia and the judge was separately seeking employment in the Justice Department’s Executive Office for the United States Attorneys. Scott, 559 A.2d at 748. The position in the Executive Office was administrative/managerial and involved no role in Departmental litigation. Nevertheless, Judge Rodgers wrote for a unanimous court that vacatur was required because, “Our criminal justice system is founded on the public’s faith in the impartial execution of duties by the important actors in that system.” Ibid. Citing Pepsico, the Court held that negotiating with “a component of the Department of Justice,” and in particular “a unit directly linked to the prosecutor’s office,” created an incurable appearance of partiality. Id. at 750. B. Col Spath violated every standard and rule governing the pursuit of employment by a sitting judge. First, Col Spath gave no notice at any point prior to his departure that he was seeking employment from the Justice Department. In fact, at no point did Col Spath even make known the fact that he intended to retire. Counsel for Petitioner only learned of this in July 2018, after media reports of his imminent departure and accompanying rumors that he had been hired as an immigration judge. 38 (Page 46 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 47 of 66 Second, Petitioner acknowledges that it is presently unknown what meetings or communications Col Spath had with the Justice Department. It is also unknown the extent to which Col Spath touted his service as a judge on the Guantanamo military commissions in selling himself as a good candidate for immigration judge. But given that Col Spath received the very job he was pursing, those meetings and communications must have taken place. And what is known for sure is that at the very time counsel for the prosecution denied Petitioner’s request for discovery, Col Spath was preparing to be feted by Attorney General Sessions at a ceremony for new Justice Department employees. Third, and most significantly, Col Spath did not recuse himself, despite the Justice Department’s deep involvement in Petitioner’s trial, Attorney General Sessions’ intense and publicly stated interest in the proceedings, and the routine 19 appearance of Justice Department attorneys and officials before him. See, e.g., See, e.g., Sessions Affirms Use of Prison; Attorney General Sessions Visits Guantanamo Bay Prison, Associated Press (July 8, 2017); Memorandum for Trial Counsel (July 9, 2018) (disclosing Attorney General Sessions’ complaints to Defense Secretary Mattis about plea negotiations in the capital military commissions that could have resulted in foregoing the death penalty) available at https://www.documentcloud.org/documents/4615017-The-Defense-Attorney-srequest-for-testimony.html; Sen. Jeff Sessions, Letter to President Obama, 2010 WLNR 584318 (January 10, 2010) (Urging the president to send the so-called “Christmas Bomber” to Guantanamo and “to pursue trial by military commissionan option you have determined appropriate for other terrorists, such as Abd al-Rahim al-Nashiri who was responsible for the U.S.S. Cole bombing.”). 19 39 (Page 47 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 48 of 66 Trans. 11053 (announcing Justice Department attorneys, including attorneys from the FBI at counsel table); Id. 10015 (same); cf. R.M.C. 103(24)(B) (defining “party” as “Any trial or assistant trial counsel representing the United States, and agents of the trial counsel when acting on behalf of the trial counsel with respect to the military commission in question.”). In fact, at the time Col Spath entered his order of abatement, the lead prosecutor in Petitioner’s case was Mark Miller, an Assistant U.S. Attorney. Rather than recuse himself or evaluate whether his future employment plans might cause an undue burden to the military commission system or the parties, Col Spath kept his plans secret. He ordered what he described as an “aggressive schedule” in April 2017. And he then committed to a pursuit of haste at all costs that was inexplicable given the seriousness of the issues he confronted. In June 2017, BGen Baker, in his role as Chief Defense Counsel, advised all MCDO attorneys not to “not conduct any attorney-client meetings at Guantanamo Bay, Cuba until they know with certainty that improper monitoring of such meetings is not occurring.” Given BGen Baker’s supervisory authority over Petitioner’s former counsel, they did the responsible thing and requested modest discovery and a hearing to assess the danger to Petitioner’s entitlement to attorneyclient confidentiality. Col Spath denied these motions so that the case could proceed rapidly to trial. 40 (Page 48 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 49 of 66 In August 2017, Petitioner’s former counsel discovered a hidden microphone in their attorney-client meeting spaces as well as other facts detailed in the Dolphin Declaration. This discovery confirmed, if not exceeded, the worst of BGen Baker’s stated fears. Petitioner’s former counsel again sought reasonable remedies and Col Spath denied these motions so that the case could proceed rapidly to trial. In October 2017, Petitioner’s former civilian counsel were forced to withdraw from the case. They followed the governing rules for how to do so and did so with the express authorization of BGen Baker. Petitioner’s only remaining attorney, LT Piette, asked for a brief period of delay, so that new death penalty qualified counsel could be hired. Col Spath denied this motion so that the case could proceed rapidly to trial, despite the fact that Petitioner was, as a practical matter, unrepresented. In November 2017, after BGen Baker refused to rescind his excusal orders for Petitioner’s former lawyers, Col Spath unlawfully ordered BGen Baker to be arrested and threatened Petitioner’s former lawyers with the same. Col Spath then continued to proceed through a series of hearings so that the case could proceed rapidly to trial, despite the fact that Petitioner was, as a practical matter, unrepresented. 41 (Page 49 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 50 of 66 From November 2017 through February 2018, Col Spath proceeded as rapidly as he could to trial, presiding over a series of one-sided hearings, issuing numerous rulings, and making international headlines by railing against “the defense community,” aping political talking points about “fake news,” and attacking the press for reporting accurately on his increasingly erratic behavior. Only after senior Department of Defense officials refused to support his vendetta against the so-called “defense community” did Col Spath take a moment to pause and, the following day, abate the proceedings in Petitioner’s military commission. No reasonable person could observe Col Spath’s mad rush and ensuing courtroom histrionics and not suspect that they were at least influenced by his thensecret pursuit of employment. Even in the most forgiving light, a reasonable observer, aware of all the facts, would conclude that Col Spath’s haste and his open “frustration” at being stymied in that haste reflected a desire to wrap up a high-profile case quickly, so that he could retire on a full pension and move on to a desirable position in the Arlington Immigration Court. A reasonable observer, aware of all the facts and aware that Col Spath was secretly negotiating for an appointment from Attorney General Sessions, could also readily conclude that Col Spath was acting as a suppliant. As an immigration judge, Col Spath “shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe[.]” 10 U.S.C. § 1101(b)(4). Attorney 42 (Page 50 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 51 of 66 General Sessions chuckled during his remarks as he quoted that very provision to Col Spath and his fellow immigration judges on September 10, 2018. Given the 20 immigration policies being pursued by the present Attorney General, a reasonable observer, knowing all the facts, could readily conclude that Col Spath’s injudicious behavior was, in fact, a kind of audition for a prospective employer whom he suspected would value his ribald invocations of “fake news,” his contempt for the press and the American Bar Association, and his willingness to take on the “defense community;” the same amorphous group that Attorney General Sessions presumably warned future immigration judges would try to be like “water through an earthen dam” of the immigration laws. Indeed, a reasonable observer, aware of all the facts, would rightfully suspect that Col Spath’s secrecy regarding his career plans, in violation of settled rules regarding post-judicial employment specifically and the regulatory requirements governing military commissions more generally, evidenced a consciousness of guilt. Cf. United States v. Clark, 184 F.3d 858, 869 (D.C. Cir. 1999). Had Col Spath disclosed his intent to retire as a military commission judge and pursue employment as an immigration judge, a reasonable observer today Available at https://www.bing.com/videos/search?q=attorney+general+remarks+to+largest+cla ss+of+immigration+judges at 4:30-41. 20 43 (Page 51 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 52 of 66 would not be justified in suspecting the worst. Had Col Spath acted like the district judge in the Mikhel case, Petitioner and the public alike would have confidence that any taint his career ambitions may have put on his rulings over the past two years would have been cleansed by the ordinary checks and balances of the adversarial process. Instead, a reasonable observer, aware of all the facts known today, would have to conclude, based if nothing else on his secrecy, that Col Spath’s reckless and often bizarre behavior was at least influenced by the secret employment negotiations he was undertaking with the Justice Department. No reasonable observer could view Col Spath’s conduct, knowing all the facts, and see a neutral judge. Whether Col Spath was privately motivated by his desire to move on to greener employment pastures or some other factors is irrelevant. Col Spath appeared biased and the most obvious explanation for that bias, beginning with the promulgation of his “aggressive schedule” on April 11, 2017, through his ordering the arrest of BGen Baker, through his abatement of proceedings in February 2018, was his private professional interests. That appearance is fatal as a matter of judicial ethics, military law, and due process. “An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice 44 (Page 52 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 53 of 66 are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself.” Williams, 136 S. Ct. 1909-10. The precise reasons the CMCR refused to grant Petitioner any remedy for Col Spath’s behavior are difficult to discern from its sparse two-page order. It appears, at least in part, that the CMCR did not credit Petitioner’s central claim: that Col Spath had, in fact, been seeking a job with the Justice Department whilst presiding over Petitioner’s case. Counsel for the prosecution dismissed this contention as “conclusory,” and when reciting the facts relating to Col Spath, the CMCR merely takes judicial notice of the fact that he is “scheduled to retire from the Air Force on November 1, 2018,” making no mention of his current employment as an immigration judge. The CMCR erroneously appeared to believe that because the facts surrounding Col Spath only came to light after the interlocutory appeal was already pending, there was “no factual record or findings of the military judge at the trial level to support [Petitioner’s] allegations for the Court to review.” As an initial matter, this is not true. Even if Col Spath’s precise job plans were uncertain at the time the CMCR ruled, the fact that Col Spath concealed his intention to retire would establish a prima facie claim of judicial misconduct. Col Spath failed to “make[] known a future retirement or resignation date” at a time when that fact would have prompted any reasonable observer to inquire into his 45 (Page 53 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 54 of 66 long-term career intentions as he unlawfully imprisoned and threatened to imprison lawyers he believed to be impeding his “aggressive schedule.” Those job plans are now a matter of public record, just as subject to judicial notice as Col Spath’s imminent retirement from the Air Force. Furthermore, the fact that Petitioner’s case was on appeal when the facts came to light is irrelevant. A litigant has an obligation, on pain of waiver, to raise judicial disqualification issues “at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim.” Apple v. Jewish Hosp. and Medical Ctr., 829 F.2d 326, 333 (2d Cir.1987). As this Court held in Microsoft, pertinent disqualification questions not only can be, but necessarily must be, addressed for the first time on appeal where, as here, the judicial officer in question “ensured that the full extent of his actions would not be revealed until this case was on appeal.” United States v. Microsoft, 253 F.3d 34, 108 (D.C. Cir. 2001); see also Ligon v. City of New York, 736 F.3d 118, 124 (2d Cir. 2013) (disqualifying a district judge when the bases for disqualification could be ascertained from the judge’s conduct on the record and uncontested media reports). As in Microsoft, Col Spath concealed the facts giving rise to his disqualification, those facts only came to light on appeal, and those facts are no longer in reasonable dispute: Col Spath concealed his intent to retire; he concealed his active pursuit of employment with the Justice Department; and he 46 (Page 54 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 55 of 66 failed to recuse himself despite the routine appearance of Justice Department attorneys before him, the Justice Department’s active role in prosecuting Petitioner’s case, and Attorney General Sessions’ keen interest in the military commission prosecutions generally, and Petitioner’s case specifically. C. The only adequate remedy to cure the structural error in this case is to vacate the proceedings below. Col Spath’s misconduct in this case violated clearly established rules governing judicial conduct, the Secretary of Defense’s clear rules governing judicial disqualification in military commissions, and Petitioner’s clear constitutional right to an unbiased judge. Given Col Spath’s actual and demonstrated bias on the record, given his deliberate concealment of facts that could have allowed this issue to be aired far earlier, and most crucially given the prejudice that resulted from Col Spath’s misconduct, the only adequate remedy is the vacatur of Petitioner’s current military commission prosecution (in effect, dismissing the current iteration of this prosecution without prejudice). Vacatur of proceedings has been ordered to remedy far less egregious judicial misconduct than what is now before this Court. In Williams, 136 S. Ct. at 1909, the Supreme Court vacated an appellate court decision due to the disqualification of a single member of the panel to have decided the case. In Liljeberg, 486 U.S. at 862, the Supreme Court upheld as “well supported” the 47 (Page 55 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 56 of 66 Circuit’s conclusion that only a new trial could remedy a district judge’s inadvertent breach of the conflict of interest rules necessitating his disqualification. In United States v. Donato, 99 F.3d 426, 438 (D.C. Cir. 1996), this Court reversed a conviction where a judge’s “comments, combined with the near-constant criticism of the defendant's counsel, raise[ed] in us a serious doubt as to whether this defendant received a fair trial.” In Mohammad, 866 F.3d at 477, this Court vacated appellate proceedings in which a member of the CMCR was disqualified even though it was probable that a “reasonable person would disregard [the judge’s] violation of Rule 902(b)(3).” And in Scott, 559 A.2d at 756, the D.C. Court of Appeals vacated an attempted murder conviction because a judge who secretly was pursuing employment in the Justice Department at the very same time that the Justice Department was prosecuting the defendant “require[d] a new trial in order to assure the continued public confidence in the integrity of the judiciary.” Here, the vacatur of Petitioner’s current military commission prosecution is the only way to remove the taint of misconduct and cure the structural error of Col Spath’s actual and apparent bias during critical stages of this capital case. Unlike Microsoft, where the influence of the district judge’s disqualifying conduct pertained to and therefore could be remedied by the vacatur of his remedial orders only, the taint of Col Spath’s disqualifying conduct was pervasive and irreparably prejudicial. Because Col Spath never announced his intention to retire and seek 48 (Page 56 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 57 of 66 employment with the Justice Employment, there is no way to date with certainty when he decided to parlay his work as a military commission judge into his current position. That uncertainty is precisely why the Supreme Court held disqualifying bias of the kind at issue here was structural error requiring vacatur. Williams, 136 S. Ct. at 1909. But even if this Court were to limit the tainted period back to April 11, 2017, when Col Spath issued his “aggressive schedule,” his rulings since that time have caused irreparable harm that can only be remedied if Petitioner’s case is given a fresh start. Foremost, Col Spath’s conduct on the bench during this period provoked the collapse of Petitioner’s capital defense team. Mr. Kammen had served as Petitioner’s learned counsel since 2007. His involuntary severance from Petitioner’s trial defense team and his absence for the past year is structural error that is irreparable. See United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). The only adequate remedy, therefore, is to vacate the proceedings below. Doing so will not result in Petitioner’s release from custody. It will not even prevent the government from prosecuting Petitioner, either by charging him a third time before a military commission or proceeding on the indictment already pending in the Southern District of New York. Instead, it will ensure a clean slate and restore the public’s confidence that even in the prosecution of our nation’s enemies, the judiciary’s commitment to neutrality is non-negotiable. 49 (Page 57 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 58 of 66 D. In the alternative, this Court should vacate all of Col Spath’s orders tainted by the period of misconduct. In the alternative, this Court should order the vacatur of all orders entered by Col Spath from the time he began his pursuit of post-judicial employment with the Justice Department. At present, that precise date is unknown. However, such an order should encompass all orders presently under review by the CMCR. For the reasons stated above, the current appeal before the CMCR is inseparable from the misconduct at issue. Vacating the orders underlying that appeal will moot the prosecution’s interlocutory appeal and return this case to the military commission in Guantanamo. At that time, the current military commission judge will have the opportunity to undertake an appropriate evidentiary hearing to ascertain the extent of the rulings that must be vacated and rule afresh on any issues that remain outstanding as a result. E. At a minimum, this Court must direct the CMCR to conduct a proper inquiry into Col Spath’s misconduct. Finally, and at a minimum, this Court should vacate the CMCR’s denial of Petitioner’s motion with instructions to conduct an appropriate evidentiary hearing. Because questions of recusal must be addressed “at the earliest possible moment,” Apple, 829 F.2d at 333, appellate courts sometimes must order additional factfinding when the record below is insufficiently developed. See, e.g., Gonzalez v. Pliler, 341 F.3d 897 (9th Cir. 2003) (“[u]nless the court is able to determine 50 (Page 58 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 59 of 66 without a hearing that the allegations are without credibility or that the allegations if true would not warrant a new trial, an evidentiary hearing must be held.”); Easley v. University of Michigan Bd. of Regents, 853 F.2d 1351, 1358 (6th Cir. 1988) (ordering an evidentiary hearing for the purposes of enlarging the record regarding the nature of the district judge’s affiliations and associations with the law school and “whether, because of such associations, Judge Feikens’ impartiality in this matter might ‘reasonably be questioned.’”). The question of Col Spath’s disqualification goes squarely to the continuing validity of the orders the CMCR is presently reviewing. If those orders are invalid, the CMCR not only risks wasting judicial resources by deciding issues that are moot, it risks permanently prejudicing Petitioner’s ability to litigate those issues before a neutral trial judge. Though the CMCR claimed in its order that it was not in a position to ascertain additional facts, this contention is belied by the CMCR’s own conduct during this appeal. In response to a motion to dismiss for lack of subject-matter jurisdiction, the CMCR issued an order specifically directing the filing of declarations by Petitioner’s counsel, counsel for the prosecution, and Col Spath to establish additional extra-record facts. CMCR Case No. 18-002, Order (March 22, 2018). Just as the CMCR deemed those facts necessary to evaluating whether the prosecution’s interlocutory appeal was properly before it, it can readily ascertain additional facts relating to the validity of the orders under review. 51 (Page 59 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 60 of 66 Very few relevant facts remain presently unknown. The only continuing uncertainties are what date Col Spath decided to retire, what date he began to pursue employment in the Justice Department, and what meetings and communications he undertook to achieve that goal. All of those facts are readily ascertainable from a declaration from Col Spath. To the extent other facts remain relevant or questions of credibility arise, the CMCR is also empowered to order a hearing – known in military law as a DuBay hearing – where any necessary findings of fact can be made. See, e.g., United States v. Quintanilla, 56 M.J. 37, 81 (C.A.A.F. 2001) (ordering a DuBay hearing on a question of judicial disqualification). The CMCR has already ordered such a hearing in another case, where the validity of a pending appeal was at issue. United States v. Qosi, CMCR Case No. 17-001, Order (June 19, 2017). If the CMCR genuinely lacks the “factual record and findings of the military judge at the trial level to support [Petitioner’s] allegations for this Court to review,” it should stay further proceedings on the prosecution’s interlocutory appeal and develop the necessary factual record. That is the only way that it can fulfill its responsibility to ensure that the “shadow [is] dispelled at the earliest possible opportunity by an authoritative judgment either upholding or rejecting the challenge.” Union Carbide, 782 F.2d at 712. 52 (Page 60 of Total) USCA Case #18-1279 III. Document #1754023 Filed: 10/04/2018 Page 61 of 66 ISSUANCE OF THE WRIT IS IN THE PUBLIC INTEREST. This Court has previously recognized that the issuance of mandamus is appropriate in cases of actual or apparent bias because confidence in the integrity of the judicial process “is irreparably dampened once ‘a case is allowed to proceed before a judge who appears to be tainted.’” Al-Nashiri, 791 F.3d at 80 (citing In re Sch. Asbestos Litig., 977 F. 2d 764, 776 (3rd Cir. 1992)). Indeed, it is the “third Liljeberg factor—the risk of undermining the public’s confidence in the judicial system—that is most affected by the military judge’s refusal to recused [himself] in this case.” United States v. McIlwain, 66 M.J. 312, 315 (C.A.A.F. 2008). “[A] military judge is charged with making a number of decisions, any one of which could affect the members’ decision as to guilt or innocence, or with regard to the sentence.” McIlwain, 66 M.J. at 315 (citing Quintanilla, 56 M.J. at 41). Here, in addition to the rulings the prosecution seeks to have ratified, Col Spath heard testimony from his fellow employees at the Justice Department and made numerous evidentiary rulings based upon that testimony in the months Petitioner’s case rushed forward without learned counsel. “Every time the military judge made a decision,” he exercised discretion—a discretion that was biased in fact or in appearance. Ibid. “This could not help but to produce a corrosive impact on public confidence in the military justice system.” Ibid.; see also United States v. Vargas, 2018 CCA LEXIS 137 (A.F. Ct. Crim. App. 2018) (dismissing court53 (Page 61 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 62 of 66 martial without prejudice where military judge’s failure to recuse “could cast doubt in the mind of the public on the fairness of other rulings by the military judge[.]”). “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” Jenkins v. Sterlacci, 849 F.2d 627, 631 (D.C. Cir. 1988) (citing In re Murchison, 349 U.S. 133, 136 (1955)). Petitioner submits Col Spath was biased against him “in fact or apparently.” Al-Nashiri, 791 F.3d at 79. This Court must “put a stop to it, via mandamus[.]” Ibid. (“[I]f prejudice exist[ed], it has worked its evil and a judgment of it in a reviewing tribunal is precarious. It goes there fortified by presumptions, and nothing can be more elusive of estimate or decision than a disposition of a mind in which there is a personal ingredient.”) (citing Cobell, 334 F.3d at 1139). 54 (Page 62 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 63 of 66 CONCLUSION For the foregoing reasons, Petitioner respectfully petitions this Court to issue the writ of mandamus ordering the relief requested. Respectfully submitted, Dated: October 4, 2018 /s/ Michel Paradis Michel Paradis CAPT Brian Mizer, USN, JAGC LT Alaric Piette, USN, JAGC U.S. Department of Defense Military Commission Defense Organization 1620 Defense Pentagon Washington, DC 20301 Counsel for Petitioner 55 (Page 63 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 64 of 66 CERTIFICATE OF COMPLIANCE WITH RULE 32(A) Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitations imposed by Fed. R. App. P. 32(a)(7)(B) as augmented by Petitioner’s motion to exceed the typevolume limitations, because: X this brief contains 12,659 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or X this brief uses a monospaced typeface and contains ____ lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: X this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14 point font size and Times New Roman type style; or X this brief has been prepared in a monospaced typeface using _______ with __________________. Dated: October 4, 2018 Respectfully submitted, /s/ Michel Paradis Counsel for Petitioner 56 (Page 64 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 65 of 66 CERTIFICATE OF SERVICE I hereby certify that on October 4, 2018, I caused copies of this Petition for Writ of Mandamus and Prohibition and its attachments to be served on the following counsel via the following email addresses at their request: Joseph Palmer joseph.palmer@usdoj.gov Danielle Tarin danielle.tarin@usdoj.gov The only exception to the foregoing is Attachment E, the Declaration of Marc Dolphin (August 4, 2017), which due to its classification as SECRET was delivered to the Court Security Officer for filing in this Court and service on all necessary parties pursuant to the Amended Protective Order for Habeas Cases Involving Top Secret/Sensitive Compartmented Information and Procedures for Counsel Access to Detainees at the United States Naval Station in Guantanamo Bay, Cuba, in Habeas Cases Involving Top Secret/Sensitive Compartmented Information, Case Nos. 08-MC-442-TFH (Dkt. Nos. 1481 and 1496) & 08-cv01207-RJR (Dkt. Nos. 79 & 80) (D.D.C. 9 January 2009). Dated: October 4, 2018 /s/ Michel Paradis Michel Paradis (D.C. Bar #499690) U.S. Department of Defense Military Commission Defense Organization 1620 Defense Pentagon Washington, DC 20301 Counsel for Petitioner 57 (Page 65 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 66 of 66 ATTACHMENTS A. CMCR Case No. 18-002, Order (September 28, 2018) B. Government Response to Request for Discovery (September 5, 2018) C. Brig. Gen. John Baker, USMC, Improper Monitoring of Attorney-Client Meetings (June 17, 2017) D. United States v. Al-Nashiri, Transcript of Proceedings (excerpts) E. Declaration of Marc Dolphin (August 4, 2017) (SECRET) 58 (Page 66 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 1 of 141 [ARGUMENT NOT YET SCHEDULED] UNITED STATES COURT OF APPEALS for the District of Columbia Circuit In re: ABD AL-RAHIM HUSSEIN ALNASHIRI, ) ) ) ) ) ) ) ) ) ) ) No. ______________ ATTACHMENTS TO PETITIONER’S PETITION FOR A WRIT OF MANDAMUS AND PROHIBITION Dated: October 4, 2018 Michel Paradis CAPT Brian Mizer, USN, JAGC LT Alaric Piette, USN, JAGC U.S. Department of Defense Military Commission Defense Organization 1620 Defense Pentagon Washington, DC 20301 Counsel for Petitioner (Page 67 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 2 of 141 ATTACHMENT A (Page 68 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 3 of 141 UNITED STATES COURT OF MILITARY COMMISSION REVIEW United States, Appellant v. Abd Al-Rahim Hussayn Muhammad Al-Nashiri, Appellee ) ) ) ) ) ) ) ) ) ) ORDER DISQUALIFICATION OF MILITARY JUDGE AND DISCOVERY September 28, 2018 CMCR Case No. 18-002 BEFORE: B U R T O N , P R E S I D IN G Judge S I L L I M A N , P O L L A R D Judges On September 13, 2018, appellee moved this Court as follows: (1) to vacate the rulings of Judge Vance Spath, the military judge who held pretrial hearings for several years in Al-Nashiri’s case; and (2) to compel discovery relating to disqualification of Judge Spath and his successor military judge. Appellee Mot. 1 (Sept. 13, 2018). Appellee claimed that Colonel Spath negotiated for employment with the Department of Justice (DOJ) while presiding over Al-Nashiri’s case. Id. at 2. Appellee further alleges that the DOJ has employed Judge Spath as an administrative judge (AJ) at the Executive Office for Immigration Review (EOIR). Id. at 4. Appellee argues that because of this Judge Spath has a conflict of interest and should have disqualified himself. On July 18, 2018, appellee filed a discovery request seeking information about Colonel Spath’s post-active duty employment discussions with the DOJ. Id. at App. A. On August 6, 2018, the Chief Trial Judge of the Military Commissions replaced Colonel Spath as the military judge in Al-Nashiri’s case with Colonel Shelly W. Schools. Id. at App. C. On August 13, 2018, appellee filed another discovery request seeking information about the relationship with and communications between Judge Spath and Judge Schools. Id. On September 5, 2018, appellant declined to provide discovery. Id. at App. B. 1 (Page 69 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 4 of 141 Thus, appellee contends, the judge’s orders for some undefined period should be vacated and that the government should be ordered to produce the discovery requested. Appellant urges our Court not to grant appellee’s motion “because there is no underlying ruling or order from the Commission below. Additionally, ruling on these issues would inherently require this Court to make extensive findings of fact because there is no record for this Court to examine.” Appellant Resp. 11 (Sept. 18, 2018). Appellant also challenges the premise of appellee’s argument that there is automatic disqualification when an Executive Branch judge seeks employment as a judge in another Executive Department. Id. at 13-16. Appellant further argues that the participation of a DOJ attorney in the prosecution of Appellee’s case is irrelevant because the Chief Prosecutor, a general officer appointed by the Secretary of Defense, is responsible for the supervision of all attorneys who prosecute military commission cases, including attorneys detailed from the DOJ. Id. at 21 (citing 10 U.S.C. § 948k(a) and (d)(1); Reg. for Trial by Military Commission, Ch. 8). Thus, according to appellant, DOD, not DOJ, is the agency responsible for the prosecution of AlNashiri. Id. at 19-20. In a verbal ruling on February 16, 2018, Judge Spath abated Al-Nashiri’s case indefinitely. Tr. 12,298-99. Appellee does not indicate when Judge Spath allegedly negotiated with DOJ for employment. We take judicial notice that Judge Spath is scheduled to retire from the Air Force on November 1, 2018. 1 None of appellee’s contentions were raised before the military commission because the case has been abated. Thus, we have no factual record or findings of the military judge at the trial level to support appellee’s allegations for this Court to review. Upon consideration of appellee’s motion, appellant’s response, appellee’s reply, and the documents submitted, appellee has not shown a “clear and indisputable” right to relief. Cheney v. U.S. District Court, 542 U.S. 367, 381 (2004) (internal quotation marks omitted). Appellee has not shown that “a reasonable and informed observer would question the judge’s impartiality.” SEC v. Loving Spirit Foundation, Inc., 392 F.3d 486, 493 (D.C. Cir. 2004) (internal quotation marks omitted). It is ORDERED that appellee’s motion is DENIED. FOR THE COURT: 1 Caro l Ro senb erg, “F rus tra ted U SS Co le ca s e judg e r e tir ing f ro m milita r y serv ic e,” Mia mi H era ld (Ju ly 5 , 2018), h ttps ://www. mc c la tch ydc . co m/la te s t-n ews /ar tic le 214354414.h tml . 2 (Page 70 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 5 of 141 ATTACHMENT (Page 71 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 6 of 141 MILITARY COMMISSIONS TRIAL UDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA Government Response to v. Defense Request for Discovery ABD AL RAHIM HUSSAYN 5 September 2018 MUHAMMAD AL NASHIRI 1. For the reasons below, the Government denies the Defense request of 13 August 2018 (copy enclosed) to preserve and to discover information regarding the supervisory or other relationship between the former military judge and the prospective detailed military judge announced on 6 August 2018. 2. Neither the existence of a senior?subordinate relationship by military rank or position or unit of assignment, nor a direct supervisory responsibility, establish the existence of the appearance of a con?ict of interest in the impartial and unbiased execution of judicial responsibilities, even where a subordinate military judge must rule on controversial matters that may implicate his or her former superiors. See United States v. Nor?eet, 53 MJ. 262 (2000).* 3. When the Commission re-opens for trial conduct, the detailed Military Judge will be available to the Defense at which time it may request to voir dire the military judge, seek the items identified in paragraph 3 of the its discovery request and thereafter challenge for recusal. Accordingly, unless ordered by the Commission, the Government will not seek to preserve nor disclose the information and documents identified in paragraph 3 of the Defense request. 1' I t, it ., 95.8.14 (cat/L.? 4 I /1 Ci?- Mark A. Miller Trial Counsel See also the Government?s denial response to the Defense discovery request of 18 July 2018 suggesting, without reasonable proof, a con?ict of interest in the former presiding Military Judge?s post?retirement employment (which is incorrectly identified in this subject discovery request as a Defense discovery request dated 10 August 2018). (Page 72 of Total) USCA Case #18?1279 Document #1754023 Filed: 10/04/2018 Page 7 of 141 ENT OF DEFENSE COMMISSIONS DEFENSE ORGANIZATION I620 DEFENSE 13 Aug 2018 MEMORANDUM FOR Trial Counsel From: LT Alaric Piette, JAGC, USN, Detailed Defense Counsel SUBJECT: DEFENSE REQUEST FOR DISCOVERY OF AND PRESERVATION OF MATERIALS AND COMMUNICATIONS REGARDING THE SUPERVISION AND CONTACT BETWEEN COLONEL VANCE SPATH AND COLONEL SHELLY SCHOOLS UNITED STATES V. AL-NASHIRI 1. Mr. Al-Nashiri is currently facing charges resulting from his alleged involvement in al-Qaeda and its alleged attack on the USS COLE (DDG-67). The Convening Authority for Military Commissions referred the charges capitally, and Mr. Al-Nashiri faces a potential death sentence if convicted of the alleged offenses. Pursuant to 10 U.S.C. 949j, Rules for Military Commission 701(c)(1) and and the Due Process Clause of the United States Constitution, Mr. Al- Nashiri, through counsel, requests the government furnish all documents and/or information and/or communications (in hardcopy or digital) in its possession, or known or discoverable by the government, which are material to the preparation of Mr. AI-Nashiri's defense. This request (and all future and past requests) include a request that all material c'urrently (or originally) in digital form be produced in the raw digital form without alteration to the content or metadata. 2. On 6 August 2018, Colonel James Pohl, USA, ChiefTrial Judge ofthe Military Commissions, detailed Colonel Shelly W. Schools, USAF, as the new militaryjudge in this case. Colonel Schools served as a militaryjudge for three of the last four years, and she was subject to Colonel Spath?s rating and supervision during the time period in which Colonel Spath was both the Chief Trial Judge of the Air Force and likely suffering from a con?ict of interest in this case (see Al-Nashiri discovery request dated 10 August 2018). If so, Colonel Schools may be laboring herself under an apparent or actual conflict, especially if asked to find that her direct supervisor and rater acted improperly. 3. In light of the facts stated above, the defense requests the following be preserved and produced as discovery: a) All material pertaining to the supervision of Colonel Schools by Colonel Spath; b) All materials regarding any and all ratings and/or endorsements and/or recommendations of Colonel Schools by Colonel Spath including the documents themselves; c) All communications between Colonel Schools and Colonel Spath of a supervisory and/or advisory character; d) All communications between Colonel Schools and Colonel Spath regarding the Military Commissions and/or this case; e) All materials related to Colonel Spath?s involvement in Colonel Schools? selection to serve on the Office of Military Commissions Trial Judiciary; t) All materials or communications regarding any knowledge Colonel Schools had ofColonel Spath?s post-retirement employment search; and (Page 73 of Total) USCA Case #18?1279 Document #1754023 Filed: 10/04/2018 Page 8 of 141 g) Any and all materials, records, and/or communications regarding Colonel Schools? opinions, perceptions, commentary, etc., of the current abatement in this case. 4. Thank you for your prompt attention to this matter. If you have any questions about this request or would like to discuss it further, please feel free to contact me. Respectfully submitted, Alaric Piette ALARIC PIETTE LT, JAGC, USN Detailed Defense Counsel The above discovery request was delivered to trial counsel via email on 13 August 2018'. (Page 74 of Total) USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 9 of 141 ATTACHMENT C (Page 75 of Total) 4, Case #18?1279 Document #1754023 Filed: 10/04/2018 Page 10 of 141 DEPARTMENT OF DEFENSE CHIEF DEFENSE COUNSEL FOR MILITARY COMMISSIONS 1620 DEFENSE PENTAGON WASHINGTON, DC 20301-1620 14June 2017 MEMORANDUM FOR CHIEF PROSECUTOR FOR MILITARY COMMISSIONS COMMANDER. JOINT TASK FORCE GUANTANAMO SUBJECT: Improper Monitoring of Attorney-Client Meetings This memorandum is to advise you that due to recently received information I have recommended to Military Commissions Defense Organization (MCDO) defense counsel. to include Learned Counsel, that they not conduct any attorney-client meetings at Guantanamo Bay, Cuba (GTMO) until they know with certainty that improper monitoring of such meetings is not occurring. On 30 November 2016, the Military Judge in United States v. Khalid Shaikh Mohammea? e! ordered that intrusive monitoring listening and audio and video recording) of attorney-client meetings be formally prohibited in the standard operating procedures for Joint Task Force Guantanamo (JTF- GTMO) and the Joint Detention Group (JDG). The Military Judge further ordered that defense counsel must be advised in advance ifa meeting with an accused is to be monitored. The Military Judge issued these orders because he recognized the legitimate concerns of defense attorneys that attorney-client meetings at GTMO were being improperly monitored by government personnel. At present, I am not con?dent that the prohibition on improper monitoring of attorney- client meetings at GTMO as ordered by the commission is being followed. My loss of con?dence extends to all potential attomey-client meeting locations at GTMO. Consequently, I have found it necessary as part of my supervisory responsibilities under 9-la.2 and 9-1 a.9 of the Regulation for Trial by Military Commission to make the above-described recommendation to all MCDO defense counsel. Whether, and to what extent, defense teams follow this advice is up to the individual defense team. Ifyou wish to discuss this matter I can be reached at 571-256-9780 orjohn.baker@osd.mil. J. G. BAKER Brigadier General. US. Marine Corps Chief Defense Counsel for Military Commissions cc: DGC CA All Defense Cousnel (Page 76 of Total) RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 11 of 141 MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA AE 133QQ v. RULING KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH MUBARAK BIN 'ATTASH, RAMZI BIN AL SHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AHMED ADAM ALHAWSAWI Emergency Defense Motion to Remove Sustained Barrier to Attorney-Client Communication and Prohibit Any Electronic Monitoring and Recordi ng of Attorney-Client Communication in any Location, including Commission Proceedi ngs, Holdi ng Cells, and Meeting Facilities and to Abate Proceedi ngs 30 November 2016 1. During a session of the Commission on 28 January 2013, audio and video trans missions between the Expeditionary Legal Center Courtroom (ELC Courtroom) (a.k.a Courtroom #2) and the public viewing areas 1 were cut 2 after one of the Defense Counsel referenced the title of an unclassified motion. 3 This closure of the proceeding was not ordered or approved by the Military Judge or the Court Information Security Officer (CIS0.) 4 The hearing was suspended until ELC Courtroom personnel cou Id reset video and audio transmissions of the hearing. 1 The public viewing areas include the public seating in the ELC Courtroom galley and closed circuit TV sites authorized by the Commission. See: AE 007 Government's Motion For Public Access To Open Proceedings of this Military Commission Via Closed-Circuit Television Transmission to Remote Locations, filed 19 April 20 12, et seq.; AE 022, Defense Motion To Grant Public Access to Commission Designated Broadcast Sites, filed 4 May 20 12, et seq.; AE 033, Government's Motion For Public Access T o Open Proceedings of this Military Commission Via Closed-Circuit Television Transmission to Remote Locations, filed 11 May 2012, et seq.; AE 068, Amended Order, Publ.ic Access To Open Proceedings of this Military Commission Via Closed-Circuit Television Transmission to Remote Locations, dated 24 August 20 12. 2 The physical mani festation o f halting the transmission is the triggering of a red light on the bench thus later references in argument and pleadings to a "red light" is a cryptonym for a cessation of the public transmission. 3 Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 10/ 19/2012 (sic) from I :3 1 PM to 2:46 PM at p. 1445. NOTE: the correct date of the session is 01/28/2013 from I :3 1 PM to 2:46 PM. 4 At the session of the Commission the next day the military judge stated on the record: Yesterday during the close of the hearing, or close to the close of the public hearing, the red light went on and the feed was discontinued to the general public. The purpose of the 40-second delay, which for those who are watching on television, is designed to prevent spillage of classified information. That is its sole purpose. In accordance with that, there are various guidance given to the court security officer of when that light should go on or not. However, only the judge has authority to close the courtroom accordance with the Rule For Military Commission 806. Appellate Exh bit 133QQ Page 1 of 17 (Page 77 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEAS E USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 2. Procedural Background: Page 12 of 141 5 a. On 31 January 2013, the Defense fi led a motion raising concerns that their attorneyclient oral communications were being monitored both in the ELC Comtroom, and in cl ient interview rooms located at the detention center (identified as "ECHO fl.") In suppo1t , the motion offered a number of vignettes leading to the Defense supposition there was "credible circumstantial evidence that their privileged conversations are being monitored and recorded by the Government, to include the Joint Task Force (JTF) and Joint Detention Group (JDG) at Guantanamo; and/or other government agencies (OGA), to include the Central Intelligence Agency (CIA)." The Defense contended the Fifth, Sixth, and Eighth Amendments to the U.S. Constitution , Section 949s of the Military Commissions Act of 2009, and Common A1ticle 3 of the 1949 Geneva Conventions "entitled the Accused to representation by competent counsel, and placed upon the Govern ment the burden of demonstrating why "they are not entitled to such protections during these proceedings." Asserting the Accused, if detained in a "civilian facility" and awaiting trial on capital charges could not "legally" be subjected to monitoring, and there is no legitimate government interest served by monitoring attorney-cl ient communications, the Accused sought, as relief, a Commission order: So when this happens, the exp lanation is given to me, and I decide whether or not it is appropriate that that particular information should have been held in a closed session. It is not the court security o ffi cer's dec ision or anybody else's whether a particular session or part of a session is closed . Again, the 40-second delay is a prophy lactic measure to avoid a more difficult unringing o f the bell if improper information is disseminated. In this particular case, Mr. Nev in's comment that resulted in the interrup tion I find is not a valid basis for the court to have been closed. Accordingly, I will summarize what Mr. Nevin said in open court that was basically the part that the general public missed. Basically he simply reiterated the caption in a partic ular appellate exhibit that is unclassified, specifically 080 Joint Defe nse Motion to Preserve E vidence of Any Existing Detention FaciJity. And again, closure o f the court is not the decision o f anybod y but the military judge. See Unofficial/Unauthenticated T ranscri pt of the Khalid Shaikh Moh ammed et al. (2) Hearing Dated 1/2912013 from 9:09 AM to I 0:08 AM. 5 AE 133 (KSM et al), E mergency Defense M otion to Remove Sustained Barrier to Attorney-Client Co mmunication and Prohi bit Any Electronic Monitoring and Recording of Attorney-Client Communication in any Location , including Co mmission Proceedings, Holding Cells, and Meeting Facilities and to Abate Proceedings, fil ed 3 1 January 2013 . NOTE: this motion was originally fil ed as a classified filing but, after review, is now unclassified; see http://www.mc.mil/Portals/O/pdfs/KSM2/KSM%2011%20(AEl 33(KSM%20et%20al)).pdf. 2 Appellate Exhibit 133QQ Page 2 of 17 (Page 78 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 13 of 141 protecting and ensuring their ability to exercise their rights to communicate and consult in private with their respective counsel, their other defense team members and persons necessary to their legal representation; and specifically prohibiting the Government and all others operating with its knowledge, irrespective of whether it is with the Government's direction or control; and/or any individuals or agencies with official access to Guantanamo Bay Naval Base, Guantanamo Bay, Cuba, from electronically monitoring and/or recording any of the Accused's communications with defense personnel at any time, to include during legal visits and Commission proceedings, and to abate Commission proceedings until such time as this matter is properly resolved. 6 b. On 6 February 2013, Mr. bin 'Attash filed a supplement to the original Defense motion and, in addition to reiterating the relief sought earlier, expanded Defense concerns to add suspected monitoring in the holding cells adjacent to the ELC Courtroom. c. On 6 February 2013, the Defense fi led a motion7 to permit them to listen to the official coutt repo1ter audio recordings of the proceedings to ascertain whether the court reporter audio feeds provided a capability to overhear in-coutt conversations between Counsel and the Accused. 8 The Government response imposed no objection to the Defense request but cautioned there was no segregation between the recorded tracks of the various comtroom microphones, thereby permitting any Counsel, if there were in fact any spillage, to hear whatever might have been captured from conversations of the other patties. The Commission granted the motion to review the audio recordings and reiterated the concerns of the Government. 9 d. The response 10 of the Government to the initial Defense motion (AE 133), filed on 7 February 2013, asserted: No entity of the United States Government is listening, monitoring or recording communications between the five Accused and their counsel at any location. 6 AE 133 (WBA Sup), Walid bin 'Attash's Suppleme nt to Eme rgency Defense Motion to Remove Sustained Barrier to Attorney-Client Communication and Prohibit Any Electronic Monitoring and Recording of Attorney-Client Communication in any Location, including Commission Proceedings, Holding Cells, and Meeting Facilities and to Abate Proceedings, filed 6 February 2013. 7 AE l 33E, Joint Motjon to Review Court reporter Audio Recordings, fil ed 6 February 2013. 8 AE l 331, Government Response to Joint Motion to Review Court reporter Audio Recordings, fil ed 7 February 2013. 9 AE 133NN, Order, Joint Defense Motion to Review Court Reporter Audio Recordings, dated 23 May 2014. 10 AE I33A, Government's Response to Emergency Defense Motion to Remove Sustained Barrier to Attorney-Client Communication and Prohibit Any Electronic Monitoring and Recording of Attorney-Client Communication in any Location, including Commission Proceedings, Holding Cells, and Meeting Facilities and to Abate Proceedings, fil ed 7 February 2013. 3 Appellate Exhibit 13300 Page 3 of 17 (Page 79 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE ED//FOR PUBLICFiled: RELEAS E USCA Case #18-1279 UNCLASSIFI Document #1754023 10/04/2018 And later: Page 14 of 141 The Prosecution states unequivocally that the evidence presented in regard to AE 133 and as a matter of fact, that Counsel's privileged communications with the Accused are not being listened to, monitored or recorded by the United States Government. The Government asked the Commission to deny the Defense motions as they failed to offer any credible evidence to support their contentions. e. By way of reply 11 the Defense reaffi rmed their belief that actions of the Government infringed upon the Accused's right to "effective assistance of counsel." The Defense also expanded their requested relief, seeking (1) a meeting location "free of any microphones, particularly any which may be lined to recording devices;" (2) a specific prohibition on the "flow of the unfiltered audio feed to the OCA or anyone else;" and (3) a requirement that the Government "prove that any evidence it proposes to use is derived from a legitimate source who11y independent of the information disclosed in the recorded conversations." 3. Oral Argument. The Defense requested argument in the original motion and the supplement thereto, 12 a request reiterated by the Government in their response. 13 A decision to grant oral argument on a written motion is within the sole discretion of the Military Judge. 14 Throughout the course of these proceedings both pruties have advanced their respective positons, both direct1y 15 11 AE l 33Q (KSM et al), Defense Reply to AE l 33A Government's Response to Emergency Defense Motion to Remove Sustained Barrier to Attorney-Client Communication and Prohibit Any Electronic Monitoring and Recording of Attorney-Client Communication in any Location, including Commission Proceed ings, Holding Cells, and Meeting Facilities and to Abate Proceedjngs, filed 12 February 2013 (classified). An unclassified, redacted , copy of the plead ing is found at http://www me mi l/Portals/O/pdfs/KSM2/KSM%20II%20(AE 133Q(KSM%20et%20al)).pdf. 12 AE 133 (KSM et al) and AE 133 (WBA Sup). 13 AE 133A 14 Military Commjssions Trial Judiciary Rule of Cow"! 3.5 m ( I September 2016). 15 Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated I0/1912012 (sic) from 1:31 PM to 2:46 PM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 1/2912013 from 9:09 AM to 10:08 AM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 1/31/2013 from 9:0 I AM to 9:22 AM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 1131/2013 from 9:40 AM to I 0: 19 AM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 1/31/2013 from 10:40 AM to 11 :25 AM ; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2/11/2013 from 9:02 AM to 10: 12 AM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2/12/2013 from 9:02 AM to 10:07 AM; Unofficial/Unauthenticated Transcript of 4 Appellate Exh bit 13300 Page 4 of 17 (Page 80 of Total) UNCLASSIFIED//FOR PUBLIC RELEAS E RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 15 of 141 16 and indirectly, a number of times. Further oral argument is not necessary for the Commission's consideration of the issue before it. The request for [fu1ther] oral argument is DENIED. 4. Findings of Fact: a. In rendering this Ruling the Commission considered the plead ings of all parties; the 17 exhibits submitted to the Commission for consideration, and the declarations, stipulations of expected testimony, 19 18 depositions, or 20 or testimony from pe1tinent witnesses. the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2112120 13 from I 0:25 AM to 11 :42 AM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 21 12120 13 from I :00 PM to 2:37 PM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 21 12/20 13 from 2:47 PM to 5:19 PM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2/ 13/2013 from 10:28 AM to 12:02 PM; Unofficial/Unauthenticated Transcript of the KJwlid Shaikh Mohammed et al. (2) Hearing Dated 21 13/2013 from 1:02 PM to 2:36 PM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2114/20 13 from 4:04 PM to 5:43 PM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Motions Hearing Dated 8/2212013 from 12:00 PM to 12:43 PM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Motions Hearing Dated 8/22/2013 from 2: 18 PM to 4:28 PM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Motions Hearing Dated 121 1812013 from 9:03 AM to l0:32 AM; Unofficial/Unauthenticated Transcrip t of the Khalid Shaikh Mohammed et al (2) Hearing Dated 5/31/2016 from 3:28 PM to 4: 17 PM; and sessions, closed pursuant to Military Commission Rule of Evidence 505 (h) to address classified issues, on 28 January 20 13; 20 June 2 103; and 16 December 20 13. 16 e.g. See: AE 284 (WBA), Defense Motion to Compel the Productjon of Information Related to the Monitoring and/or Collectjon of Attorney-Client Privileged Information, filed 26 March 20 14; AE 292, Emergency Joint Defense Motion to Abate Proceedings and Inquire into Existence of Conflict oflnterest Burdening Counsel's Representation of Accused, filed 14 ApriJ 20 14; and AE 367 (MAH), Motion to Dismiss Because National Security Considerations Make a Fair Trial Impossible, fil ed 22 July 20 15. See also: Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Motions Hearing Dated 6116120 14 from 9:05 AM to 11 :05 AM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Motions Hearing Dated 8/14120 14 from 11: 18 AM to I :00 PM; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al (2) Hearing Dated 2/1112015 from IO:OO AM to 11: 15 AM. 17 Exhibits: Attachment B, AE 133 (WBA Sup), MEMORANDUM FOR Commander, JTF-Guantanamo Joint Detention Group, dated 19 May 2008, SUBJECT: Military Commissions Counsel Visitation of Detainees Practices Guide (Buzby Memo); Attachment C, AE 133 (WBA Sup), MEMORANDUM, dated 27 December 20 11 , SUBJECT: Order Governing Logistics o f Defense Counsel Access to Detainees Involved in Military Commissions; AE 133T (AAA), ELC AE 133U (KSM), p. I, Email- - - -Capt Thomas J. Welsh, dated October 12, 2012, 12:56 PM; Subject: Re Question Regarding Monitoring Attorney Client Meetings· AE 133U (KSM), pp. 2-8, Email from Paul W. Rester ated August 05, 2008, 12:22; Subject: Re U.S. May Have Taped Visits AE 133U (KSM), p. 9-11 , Email- - - -CAPT Patrick McCarthy, dated May 08, 2008, 2:45; Subject: eavesdropping article; March 08, 20 12, 6:37 AM; AE 133U (KSM), pp. 12-14,Email from CAPT Patrick Rabun Subject: FW HOT (unclassified); AE 133U (KSM), p. 15, Email from CAPT Thomas J. Welsh to COL John Bogden, dated February 05, 20 13, I :33 PM; Subject: JDG Order On Monitoring; AE 133U (KSM), pp. 16-17, Email from CAPT Thomas J. Welsh to COL John Bogden, dated February 08, 20 13, 9:38; Subject: FW Request for Interview; AE 133U (KSM), p. 18, Email from COL John Bogden to CAPT Thomas J. Walsh, dated February 04, 20 13, 9:24 AM; Subject: RE Declarations Regarding Issues We Discussed Thursday With Prosecutors; 5 Appellate Exhibit 13300 Page 5of17 (Page 81 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 16 of 141 b. As to the ELC Courtroom: (1) A session of the Commission held on 28 January 2013 was temporarily halted when the sound and video feeds of the proceedings going to the public viewing areas were suspended by a third paity, not the military judge. The ELC Courtroom is a Sensitive 21 Compattmentalized Information Faci lity (SCIF). Access to the cou1troom is controlled at all times.22 Closed circuit audio and video (CCTV) feeds of the proceedings in the ELC Couttroom ai·e transmitted to locations on the U.S. Naval Station, Guantanamo Bay Cuba (GTM0 ),23 and 24 viewing locations in the United States. The CCTV feeds, both at GTMO and within the United States, ai·e viewed on a 40 second delay ordered by the Commission. 25 The CCTV feed is also mon itored in real-time by the comt interpreters to provide simultaneous translation and by an AE 133V (KSM), Photograph; AE 133U (KSM), Extract (pp. 9-10) ITF-GTMO-CDR ( me mo) Subject: Order Governing Logistics of Defense Co unsel Access to Detainees Invo lved in Military Co mmissions; AE 133X (MAH), Joint Task Force Guantanamo (Web Capture) www.jtfgtmo.southcom.mil ; Attachment B, AE i 33Z (Mohammad), Louroe Electronics AP-2/AP-4/ AP-8 Audio Monitoring Base Station Installation and Operating Instructions; 18 Declarations: Attachme nt B, AE Attachme nt C, AE Attachme ntD, AE Attachment B, AE Attachment B, AE 19 I 33A (Sup), Dec laration of Maurice Elkins, dated 7 February 20 13; I 33A (Sup), Dec laration of dated 7 February 20 13; 133A (Sup), Declaration of- - -dated 7 February 20 13; I 33S (KSM), Declaration of CDR James R. Longo, dated 12 February 2013; I 33A (Sup), Declaration of CAPT Eric Schneider, Director, J-2, dated 13 February 2012. Dep osition/Stipulation: United States v. Jawad, AE I 09, Deposition of CAPT Patrick M. McCarthy, United States Navy; Stipulation of Ms. Sadiq, Unoffi cial/Unauthenticated Transcript of the Khalid Shaikh M ohammed et al. (2) Hearing Dated 2112/20 13 from 1:00 PM to 2:37 PM, at p. 1954; AE 133BB (MAH), Stipulation as to Visitation Log. See: Unoffi cial/Una uthenticated Transcri pt of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2/1 4/20 13 from 4:04 PM to 5:43 PM at pp. 2653 - 2654. 20 AEI 33R, Government Updated Notice of Witness Availability for 11 -14 February Hearings, filed 12 February 201 3. 21 To the Commission's knowledge this is the only United States trial court so configured; the United States Foreign Inte lligence Surveillance Court (FISA Court) meets in a "sec ure" environment but is not a criminal trial court in the classic sense. See Rule l 7(b), United States Foreign Inte lligence Court SurveilJance Court Rules of Procedure. 22 Attachment B, AE 133A, dated 7 February 20 13. 23 ELC Media Center, Building AV-29 Building AV-34" and spaces in the ELC assigned to the OMC-CA, OCP, OMCD, the OMC Special Sec urity Officer ("SSO,") the court interpreters, and the Data Trailer. 24 The CCTV feeds are transmitted specified locations within the United States so that victim famil y members, first responders, the media, and members of the public may watch the proceedings. See: AE 007 et seq; AE 022, et seq; and AE 033 et seq. 25 Para 8a(3), AE 0 l 3P (KSM), Protective Order # I, To Protect Against Disclosure of National Security Information, dated 6 December 20 12 and subsequent amendments to the original order. 6 Appellate Exhibit 133QQ Page 6of 17 (Page 82 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 17 of 141 Original Classification Authority to conduct classification review.26 There is a device (euphemisticall y referred to as the "red button") that terminates any transmission feed from the courtroom. The Judge and the CISO have the ability to terminate transmissions of the proceedings, both audio and video.27 The Commission has previously determined the brief delay is the least intrusive and least disruptive method of meeting both responsibilities. The delay permits the Commission to assess and remedy any negligent or intentional disclosure of classified information without unduly impacting on the ability of the public and press to fully see and understand what is transpiring. 28 In accordance with the Commission' s Order of 29 January 2013,29 there is no longer a third-party capability to terminate the transmissions.30 The incident, however, both established that an OCA monitors the proceedings in real-time and served as the predicate for Defense concerns as to their communications with the Accused. (2) In 2011, the court reporter recording system was upgraded to insure the court reporters could identify who was speaki ng for the trial record when more than one participant was speaking at the same time. The "For The Record" (FTR) system is the standard for court reporting and is the same system used to record and prepare a record of trial in courts-martial and most courts throughout the United States.31 There are 23 microphones located throughout the ELC Courtroom and the audio from these microphones feeds into one of eight (8) channels which are recorded by the court reporting software system. One channel is for the microphones located on the counsel tables for the five Defense teams. When the system is active, the base of each microphone has a green light indicati ng that it is "hot" (i.e., live), unless a "mute" button is pushed; when the mute button is pushed, no audio transmits from that microphone. There is also a 26 Attachment B, AE 133A; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2/12/20 13 from 9:02 AM to 10:07 AM at p. 1862. n Id. 28 AE 0130, Ruling, Government Motion To Protect Against Disclosure of National Security Information, dated 6 December 2012. 29 The clear directive was issued on 31 January 2013; see Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 1/3112013 from 9:01 AM to 9:22 AM at pp. 1720-1721 . 30 AttachmentB, AE 133A. 31 Attachment D, AE 133A. 7 Appellate Exhibit 13300 Page 7of17 (Page 83 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 18 of 141 mute button on the computer panel touch-screens on each counsel table. If only the touch-screen mute button is pushed, the cou nsel table microphones will not amplify or broadcast in the courtroom, and will not send audio to the CCTV transmission . However, they will still feed audio to the court repo1ter recording system, the translators, and the OCA. 32 If the individual microphone is not muted, it is activated by a voice tone of a specified decibel level (the "gate."). If the tone is "gated" (i.e., meets or exceeds the decibel threshold), it is heard in the comtroom and made pait of the record of trial. If the audible is below the threshold, it is "pre-gated," meaning the "pathway will pick up even a low tone, maybe not with clarity, but it will pick it up." 33 The gated feeds, whether in real-time or on 40 second delay, transmit the audio that is 34 heard in the comtroom. The "pre-gated" feed, going to the cou1t repo1ters, translators, and the OCA,35 may transmit background voices and discussions, depending on the volume of any paiticulai· voice and the number of people being picked up by different unmuted microphones. 36 All Counsel were provided briefings on the necessity of muting the counsel table microphones and were advised that failure to do so could result in ungated discussions being recorded by the 37 court reporters FTR system. As a reminder, there ai·e signs on both the doors the ELC Comtroom and the counsel tables warning Counsel of the need to "mute microphones for sidebar conversations." 38 The Accused were afforded the oppo1tunity to listen to the comt reporter recordings to asce1tain if the pregated feed provided a capability to overheat· in-cou1t 32 Attachment B, AE I33A; Unofficial/Unauth enticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2/1212013 from 9:02 AM to 10:07 AM at pp. 1861-1862. 33 Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2/1212013 from 9:02 AM to 10:07 AM at p. 1854. 34 Id. 35 Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 211212013 from 9:02 AM to 10:07 AM at p. 1866. 36 Best summed up by Mr. Conne lJ during questioning: Q... the filtered or gated audio that we hear contains less sound information than the audio llow, the pre-gated audio flow that the three entities receive, correct? A. Depending on the volume in which you are speaking, yes. Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 211212013 from 9:02 AM to 10:07 AM at p. 1862. 37 AttachmentD, AE 133A. 38 /d. 8 Appellate Exhibit 13300 Page 8of17 (Page 84 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 19 of 141 39 conversations between Counsel and the Accused. The Commission is unaware if the opportunity was ever taken or, if it was, what it indicated. c. As to the Holding Cells adjacent to the ELC Comtroom: Defense Counsel have the opportunity of meeting with the Accused prior to or immediately after proceedings. Meetings occur either in the ELC holding cells, which provide a private meeting area, or in the ELC Courtroom. In the ELC holding cells there is camera coverage for security monitoring only; there are no audio capabilities or listening devices in the ELC holding cells.40 d. As to the interview rooms at ECHO II: (1) Captain (CAPT) Thomas J. Welsh, U.S. Navy (USN) , Staff Judge Advocate, JTF-GTMO testified 41 the issue of being able to monitor meetings in the interview rooms at ECHO II first came to this attention in January 2012. ECHO II is used for multiple purposes, including attorney-client meetings, meetings between the International Committee of the Red Cross (ICRC) delegates and detainees, and for some medical meetings where specialists meet with the detainees on specific issues. He was unaware any previous use for ECHO II or who controlled it before it came under the control of JTF-GTMO. In January 2012 there was a meeting between a detainee and his defense counsel, prosecutors, and law enforcement officials. CAPT Welsh walked into the control room and saw a law enforcement official with headphones listening to the meeting. There was also a video monitoring capability. Prior to that time he had not known there was the capability to audio monitor at the facility. Later he queried the previous Joint Detention Group commander about the monitoring capability; the commander's response indicated that there was an ability to do so, but it was not used to monitor attorney-client meetings. CAPT Welsh concurred with the Defense proposition that the microphones in the 39 AE 133£. Attachment B , AE 133A. 41 Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohanvned et al. (2) Hearing Dated 2/ 12/2013 from 1:00 PM to 2:37 PM at pp. 1954-2029; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2/1212013 from 2:47 PM to 5: 19 PM at pp. 2030- 2062. 40 9 Appellate Exh bit 133QQ Page 9of17 (Page 85 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 20 of 141 ECHO ll rooms were not apparent as such and could have been mistaken for smoke alarms. Upon fmther questioning by the Defense, CAPT Welsh stated he had no prior knowledge about the monitoring capability before his arrival; his predecessor did not convey any information about monitoring during the sho1t period of turning over responsibilities; and after the discovery in January 2012, he made no fmther inquiry into the matter until the defense in this case brought it to his attention in October 2012. The Defense also questioned CAPT Welsh whether the requirement to identify the language to be used during attorney-client meetings was a precursor to being able to monitor meetings. CAPT Welsh testified the requ irement was not enforced but was, to his belief, initiated to make sure that translation capabilities were available for counsel. When asked why such a capability would be needed unless the Government was going to monitor the conversation, CAPT Welsh was unable to offer an explanation, but did not agree that it was meant to enable audio monitoring of such meetings. (2) In an affidavit, 42 Commander (CDR) John Longo, USNR, special investigator for the Defense Team representing Mr. Mohammad , stated he conducted an interview with CAPT Eric Schneider, USN, J2 Director, JTF-GTMO, on 11February2013. The purpose of the interview was to elicit CAPT Schneider's knowledge of video and audio surveillance equipment located at Camp Echo II. In his affidavit, CDR Longo stated that CAPT Schneider confirmed the J2 is responsible for all audio and video surveillance equipment located at Camp Echo II. He advised that he has been in his current assignment as the J2 Director at GTMO for approximately three weeks, and was briefed by his predecessor in regard to this audio and video surveillance equipment. In conclusion CDR Longo wrote that CAPT Schneider "advised that to his knowledge, no recording of the audio or video takes place, though monitoring of both ... has taken place during attorney client meetings in Echo II for force protection purposes only." By affidavit, executed in response to that of CDR Longo, CAPT Schneider filed a "responsive" 42 Attachment B , AE l33S (KSM). 10 Appellate Exhibit 133QQ Page 10 of 17 (Page 86 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 21 of 141 declaration.43 After reviewing CDR Longo's statement, CAPT Schneider disagreed with the statement that attorney-client meetings are monitored by both video and audio means for force protection and stated he was unaware of any such monitoring both from his own knowledge and from having checked this with his predecessor. (3) In his affidavit, 44 and during his testimony, 45 Colonel (COL) John V. Bogdan, Commander, JDG, JTF-GTMO, Guantanamo Bay, Cuba, avowed he had the responsibility to facilitate meeti ngs between detainees and their Defense Counsel. These meeti ngs took place in individual meeting rooms at ECHO II. These meeting rooms are also used for purposes other than attorney-client meeti ngs. Each of the rooms in ECHO II is equipped with video cameras to facilitate remote video monitoring (real-time ability to watch or listen) for security purposes by the guard force. This enables the guards to respond instantly in the event a detainee attempts to harm himself or another individual in the room. There is no capability to record (electronically save) audio or video from the meeti ngs, and additional equipment would need to be installed in order to do so. Guard force personnel are trained and directed to not listen to conversations between attorneys and detainees. He was not aware of any instance, either before or during his tenure as commander, in which guards or other personnel have monitored or recorded, whether intentionally or unintentionally, meeti ngs between detainees and attorneys. Meetings between detainees and the ICRC are not recorded. He has also issued written guidance to the JOG regarding the monitoring of Attorney-Client Meetings and ordered that all audio capability be disconnected. 46 43 Attachment B , AE 133A (Sup). Attachment C , AE 133A (Sup). 45 Unofficial/Unauthentjcated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2/13/20 13 from !0:28 AM to 12:02 PM pp. 2169-2247; Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2/ 13/2013 from I :02 PM to 2:36 PM at pp. 2248-2294. 46 JTF-GTMO-CJDG MEMORANDUM FOR ALL PERSONNEL ASSIGNED TO THE JOINT DETENION GROUP (JDG), dated 4 February 20 12; Subject: Monitoring of Attorney-Client Meetings, Attachment I, Government Response (Attachment I, AE I 33A). 44 11 Appellate Exhibit 13300 Page 11 of 17 (Page 87 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 22 of 141 47 (4) The deposition of CAPT Patrick M. McCruthy, USN, was taken pursuant to an order by Judge Henley, in United States v. Jawad, to asce1tain "his knowledge, if any, of video teleconferences involving Brigadier General (Brig. Gen.) Thomas Hartman (former Legal Advisor to the Convening Authority), other General Officers and senior JTF-GTMO and United States Southern Command (SOUTHCOM) officials in which Military Commission cases were discussed." At the time of the deposition CAPT McCruthy was the JTF-GTMO Staff Judge Advocate.48 During the deposition, upon cross-examination by Col Morris, the (then) Chief Prosecutor, CAPT McCatthy addressed issues of contention between himself and Brig. Gen. Hartman. One of the issues brought up, pe1taining to the motion now before this Commission, went to "access to videotapes of fore ign delegations meeting with their nationals," addressed in order for the prosecution to perform due diligence in providing discoverable information for the defense.49 The responses of CAPT McCruthy in this context would support the contention that there is, or was at that time, an ability to make and retain audio and visual records of meetings in ECHO II. (5) The Commission has looked at the picture50 of the microphone in an ECHO II room and concurs that, with casual observation, it can be mistaken for a fire alarm. No representation was made by the Accused that it was actively claimed to be such by the JOG. (6) As a sworn officer of the Commission, the Chief Prosecutor, Brigadier General Mark Ma1tins, USA, has avowed that, "No entity of the United States 47 United States v. Ja wad, AE 109, Deposition of CAPT Patrick M. McCarthy, United States Navy. The Commission was requested to take judicial notice of this deposition. See AE 133, para 4a. 48 CAPT McCarthy was a predecessor to CAPT Welch in this position. 49 See AE 062, United States v. Khadr, Government Response to Defense Special Request for Relief from the Terms the Protective Order, fil ed 23 January 2008, and AE 306, United States v. Khadr, Notice of Defense Motion To Compel Production of Video and/or Audio Recordings of Interrogations of the Accused and Photos of Accused, fil ed 4 March 2008. The fact that some interviews and meetings with Accused could be audio and/or videotaped does not appear to be a particularly heavily guarded fact. 50 AE 133V (KSM). 12 Appellate Exhibit 13300 Page 12 of 17 (Page 88 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 23 of 141 Government is listeni ng, monitoring or recording communications between the five Accused and their counsel at any location." 51 5.Law: a. As a basic proposition the Defense has asse1ted the Government bears the burden of demonstrating why the Accused are not entitled to protection of their communications with Defense Counsel. 52 Rule for Military Commissions (R.M.C.) 905(c)(2) di1·ects that, except as otherwise noted in the Manual for Military Commissio ns, the burden of persuasion for any motion lies with the moving patty. The Defense contends constitutional protections entitle the Accused to their requested relief as a matter of right, thereby requiring the Government to prove a negative. This begs the question actually before the Commission - factually whether there was any infringement at all of the right to protected communications. To this end, since the Defense supposition does not go to what must be proven to convict, the Defense must show, by a preponderance of evidence, an actual, improper, inhibition of commu nication has occurred. See: United States v. Hsia, 81 F.Supp.2d 7, (D.D.C. 2000) citing United States v Kelly, 790 F.2d 130 (D.C.Cir. 1986). b. Assuming, arguendo, that the Defense asse1tions ai·e suppmted by facts in the record, the Supreme Comt, in Weatherford v. Bursey, 429 U.S. 545 (1977), set forth the factors the Defense must satisfy to show a cognizable infringement of a protected right. To do so, the Defense must show (1) evidence used at trial that was produced directly or indirectly from an intrusion; (2) the intrusion by the government was intentional; (3) the prosecution received otherwise confidential information about trial preparations or defense strategy as a result of the intrusion; or (4) the information was used in any other way to the substantial detriment of the defendant. United States v Kelley, 790 at 137. To establish a primafacie showing of prejudice the Defense must show the Government acted affirmatively to effectuate their intrusion. Weatherford SJ 52 AE l33A. AE 133 (KSM et al), para 3. 13 Appellate Exhibit 13300 Page 13 of 17 (Page 89 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEAS E USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 24 of 141 at 558. Fmther, the result of any such intrusion must work to the "substantial" detriment of the Accused, a standard requ iring demonstrated use of "confidential information pettaining to defense plans and strategy, and from other actions designed to give prosecution an unfair advantage at trial." US v Danielson 325 F.3d 1054 (9th Cir. 2003). 6. Analysis and Ruling. a. As to the ELC Comtroom: (1) There is no specific prohibition against an individual, with the appropriate need to know, from monitoring the Commission proceedings, either through physical presence in the comtroom or electronically, in the manner being challenged by the Defense. For example, a motion has been filed for the Chief Defense Counsel to be physically present in the courtroom during classified sessions in furtherance of his duties 53 and the Government has routinely had law enforcement members of their team observi ng the proceedi ngs from within the courtroom.54 The error on the OCA's patt was their unauthorized interruption of the proceedi ng; not their having followed the trial in real time in performance of their responsibi lities to be mindful of national security interests and so advise the CISO when appropriate. The crux of the issue before the Commission lies in whether "pre-gated" information from the comt repo1ting system was being used to assist the Government in the prosecution of this case. Evidence before the Commission has shown the pre-gated feed is the one used by the OCA to follow the proceedings. (2) The Defense assertion in this regard fails at least two requirements of the "Kelly" test. First, there has been no proof offered that the pre-gated feed captures any retrievable information, confidential or otherwise. The Defense was provided the chance to test the system, and apparently decided to forgo that opportunity. More impo1tantly, there is no evidence that the alleged intrusions, assumi ng they occurred, were intentional. The "pre-gated" feed is part and 53 AE 013HHHH (AAA), Mr. al Baluchi's Motion to Modify Third Amended Protective Order # I to Allow Chief Defense Counsel to Review Classified Information, filed 17 September 20 15. 54 See, e.g., Uno fficia l/Unauthenticated Transcript o f the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2/1212013 from 9:02 AM to 10:07 AM at p. 1836. 14 Appellate Exhibit 133QQ Page 14 of 17 (Page 90 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 25 of 141 parcel of the court reporting system; there is no evidence selection of the FfR system was done as a means to provide the Government the ability to eavesdrop. 55 In fact, the contrary is shown. Counsel were warned 56 of the consequences of not muting their microphones both during courtroom technology training and by signs placed on the door to the ELC Courtroom, and at the counsels' tables, to rem ind them of the need to mute the microphones to preserve confidentiality.57 This can hardly be construed as a covert intrusion when the Defense was both on notice as to the possibility and had the power to mute the system if they believed it compromised confidentiality. (3) The Defense has not shown their attorney-cl ient communications in the ELC Courtroom are being purposely intruded upon; or, in fact, whether any such intrusion has occurred at all. Accordingly, the Defense motion to deny the OCA the ability to monitor the proceedings in real time is DENIED. b. As to the ELC Courtroom holding cells: Evidence indicated the Government has the ability to video monitor the holding cells, but nothing was adduced to indicate there was an ability to monitor conversations between Defense Counsel and client in the cells. The Defense has not shown their attorney-client communications were being intruded upon in the ELC Comtroom holding cells. As to that aspect of their motions, the specific relief sought is DENIED. c. As to the interview rooms at ECHO II: The Government had the abil ity to monitor, by both audio and visual means, meetings in the interview rooms at ECHO 11. The Commission understands why the uninitiated could mistake the system for doing so was a fire or smoke alarm. Evidence of record shows these rooms were used for a number of functions besides attorney- 55 Ms.ffidavit indicates it is a commonly used system. See Attachment D, AE 133A. Id. A "low tech" solution to the problem was instituted; now instead of having to turn the microphones off to mute them they have to be turned on to be active. See: Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 2/11/2013 from 9:02 AM to IO: 12 AM at p. 1824. 56 57 15 Appellate Exh bit 13300 Page 15 of 17 (Page 91 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEASE USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 26 of 141 58 client meetings. There was, however, no evidence offered indicating Defense Counsel were purposely misled as to the function of these "fire alarms" nor, from information provided in other cases, was the fact that there was audio and video monitoring capability a closely held secret. The Government did provide evidence that they were aware of the responsibility to respect attorneyclient privileged meetings in ECHO II. Their witnesses uniformly indicated that no audio monitoring of meetings between the Accused and their attorneys occurred. Evidence of the capabil ity to monitor does not by itself establish the fact or probability of abuse or misuse of that capability, especially where there are unrelated legitimate reasons for the capability's presence. As to this pottion of the motion by the Defense, the specific relief sought is DENIED. d. An overarching remedy sought by the Defense is that the Government be required to "prove that any evidence it proposes to use is derived form a legitimate source wholly independent of the information disclosed in the recorded conversations." While this relief would be appropriate had a substantial infringement of the privilege been sufficiently shown, the facts as developed do not warrant this drastic relief. The Defense motion in this regard is DENIED. e. The Defense is correct in asse1ting the attorney-client privilege is sacrosanct, and while a breach of such privilege was not demonstrated by the issues and facts before the Commission at this time, the Commission recognizes the Defense concern about protecting that privilege. The Commission is all too aware that, with continual changes in the personnel comprising JTF-GTMO and the JDG, what has been done right at one point may become a historical notation, especially after several changes of the guard force. To address these concerns, the motion of the Defense for a prophylactic remedy is GRANTED as set fotth in paragraph Seven (7) of this Order. 7. Order. The Commission directs that the salient points of the directive issued by COL Bogden be formally made part of the standard operating procedures for JTF-GTMO and the JDG. Futther, 58 Defense Counsel proffered that a guard had ass ured them the device was a smoke detector and not a listening device, however no evidence was provided to support this contention. See: Unofficial/Unauthenticated Transcript of the Khalid Shaikh Mohammed et al. (2) Hearing Dated 211112013 from 9:02 AM to 10:12 AM at p. 1807. 16 Appellate Exhibit 13300 Page 16of17 (Page 92 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE RELEAS E USCA Case #18-1279 UNCLASSIFIED//FOR Document #1754023 PUBLICFiled: 10/04/2018 Page 27 of 141 when new Defense Counsel are being shown or briefed on the interview rooms at ECHO II, they must be specifically made aware of the monitoring capability and its uses. Lastly, if a meeting with an Accused involving Defense Counsel (e.g., a plea negotiation) is to be monitored, the Defense Counsel involved will be advised in advance of the monitoring. So ORDERED this 30th day of November, 2016. /Isl/ JAMES L. POHL COL, JA, USA Military Judge 17 Appellate Exhibit 133QQ Page 17of 17 (Page 93 of Total) UNCLASSIFIED//FOR PUBLIC RELEASE USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 28 of 141 ATTACHMENT D (Page 94 of Total) USCA Case #18-1279 [T (Page 95 of Total) Document #1754023 Filed: 10/04/2018 Page 29 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 30 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [COL POHL]: So let me go through the 505 procedure 2 and then we say the initial thing is whether or not, again 3 applying the standard, but they say -- defense says we want to 4 discuss this with our accused to prepare for his defense, is 5 that part of the 505 procedure also? 6 ATC [MR. SHER]: 7 MJ [COL POHL]: It is not. Okay. So the first time the accused 8 would hear this evidence would be in court during the case in 9 chief? 10 Is that the government's position? ATC [MR. SHER]: Well, it is with the exception of, 11 again, I mean, stuff that he knows he can talk about with 12 them. 13 MJ [COL POHL]: 14 ATC [MR. SHER]: 15 MJ [COL POHL]: Okay. Which really narrows the subset of ---I got your position. Let me ask you 16 about the second part though, because you carefully used the 17 word "case in chief." 18 government intend to use any classified information in 19 presentencing that ---- 20 ATC [MR. SHER]: How about presentencing, does the No, the government is not going to rely 21 on classified information. 22 MJ [COL POHL]: 23 So when you said your case in chief, you're saying -- I understand, Mr. Sher, you're going to be UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 96 of Total) 3120 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 31 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 held to this. 2 use any classified information in its case in chief or in its 3 presentencing presentation? 4 ATC [MR. SHER]: 5 MJ [COL POHL]: 6 ATC [MR. SHER]: 7 MJ [COL POHL]: 8 ATC [MR. SHER]: 9 You're saying the government does not intend to That's correct. Okay. May I have one second, sir? Sure. The reality is, Your Honor, there's a very small set of -- a small subset of information that may 10 not be shared with the accused. 11 the discovery that's not classified, and only 14 percent of 12 what's produced is classified. 13 again, with his attorneys about whatever information he knows. Again, he can access all of And the accused can talk, 14 That narrow limitation on the accused's right to 15 learn classified information from his attorneys does not deny 16 him right to counsel. 17 Moussaoui, which was a capital case. 18 Abu Ali. 19 Embassy Bombings, and, again Marzook is another instance, 20 pretrial hearings, suppression hearing where the government 21 produced documentary and testimonial evidence outside the 22 presence of the accused. 23 The Fourth Circuit found that in They found it in Second Circuit came to the same conclusion in The defense hasn't cited to any case where any UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 97 of Total) 3121 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 32 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 court has sanctioned the government by dismissing the capital 2 referral because an uncleared accused can't access classified 3 information. 4 Gardner v. Florida case. 5 the trial judge increased that punishment to death on his own 6 based on information never shared with the accused, never 7 shared with his lawyers. 8 or work through that issue. 9 accused has at least five cleared defense counsel that are The only case they cited today was the A jury sentenced an accused to life, They had zero opportunity to explain That is not the case here. The 10 representing his interests and that can access the classified 11 information. 12 In Abu Ali, which is a Fourth Circuit case I think 13 in 2008, the court didn't allow the accused or his uncleared 14 counsel to attend hearings involving classified information, 15 they didn't allow his -- the accused or his uncleared counsel, 16 which were his lead counsel, to review classified information 17 or to cross-examine government witnesses that were relating 18 classified information, relating to classified information. 19 Rather, the accused had to have his cleared defense counsel do 20 so. 21 Your Honor, the statute's clear, the accused may 22 not access classified information pretrial. 23 different a position than a criminal defendant tried in He is in no UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 98 of Total) 3122 USCA Case #18-1279 [T (Page 99 of Total) Document #1754023 Filed: 10/04/2018 Page 33 of 141 ] USCA Case #18-1279 [T (Page 100 of Total) Document #1754023 Filed: 10/04/2018 Page 34 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 35 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 previous substitutions that had been approved by Judge Pohl, 2 which were just under 900 pages, 888 pages of substitutions, 3 in ten separate installments. 4 In addition to that, they've had the great amount of 5 information regarding the RDI program that's included in the 6 Senate study's executive summary. 7 I'm stating there are verifiable pieces of that that will 8 relate to statements of relevant facts, stipulations, if we 9 agree the underlying information is accurate. Now, to be clear on this, And because we 10 viewed all of the underlying information, we will be prepared 11 to stipulate to much of that. 12 was declassified and has been available to -- for the defense 13 to discuss with their client the different aspects of that. 14 And in addition, all of that So that's part of the framework associated with all 15 of this, was the declassification of nearly 500 pages of an 16 executive summary of the report. 17 holistic process by which we've analyzed the information at 18 issue. 19 And that's been part of the So turning now to the ten paragraphs of the -- 20 they're really subparagraphs of paragraph 13 of the 21 commission's order in 120AA, and I can report volume of pages 22 that are either in the pipeline or have already been 23 delivered. And with regard to the -- to all ten paragraphs, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 101 of Total) 6498 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 36 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 the amount of material that has been produced, and that has 2 already been -- gone through a request for substitutions and 3 other relief with the commission and has been produced to the 4 defense, and this is as against eight of the ten categories 5 now you've approved and -- provided protective orders and 6 approved 219 pages as against paragraphs -- subparagraphs 7 13.a, b, c, d, f and g, and then i and j. 8 So you've -- the statements of the accused and 9 co-conspirators piece you've not yet provided under the 10 ten-category framework. 11 included the SOPs and guidance in subparagraph 13.e. 12 but 13.e and h, they've received some information amounting to 13 219 pages. 14 And nor have any of the orders Now, let me now go through what's coming. So all There are 15 multiple thousands of pages total associated with the ten 16 paragraphs that are coming. 17 significant amount of that being reviewed now and you will be 18 reviewing the adequacy of the substitutions, looking at the 19 originals and determining if more needs to be produced. 20 You know, you've got a Our expectation, our reasonable expectation, based on 21 looking at this and the process, of course, subject to what 22 you approve, Your Honor, is that for subparagraphs 13.a and b, 23 these are a chronology of the accused's detention within the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 102 of Total) 6499 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 37 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 program and the conditions of transport, A and B, a small 2 number of pages, because this is mostly just a chronology 3 that's been ordered by the commission. 4 And then let me just go to paragraphs i and j, 13.i 5 and j, and this is the requests to employ enhanced 6 interrogation techniques, if any, and the approvals of those, 7 also a relatively small number of pages, because it deals with 8 the -- whether or not requests happened and whether they were 9 approved. 10 And only a small number of pages thus far of those have been provided. 11 In the area of e, this is SOPs and guidelines. There 12 will be hundreds of pages, we expect, based on what we have 13 submitted and are going to be submitting between now and 14 September 30 to you. 15 In the area of statements of the accused and 16 co-conspirators, paragraph 13.h, that will be into the many 17 hundreds of pages, potentially more than 1,000, in that 18 subparagraph alone. 19 confinement, and hundreds of pages of synopses regarding 20 persons who had direct and substantial contact, their 21 employment and training records pertinent to their work in the 22 program. 23 Hundreds of pages of 13.c, conditions of So again, overall, either in the request phase with UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 103 of Total) 6500 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 38 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 you or coming your way very soon, multiple thousands of pages 2 associated with the ten paragraphs. 3 bottom line being I'm -- I have tempered optimism that we're 4 going to get through all of that, we're going to have to you 5 by September 30 or we will deliver some records, additional 6 records, to the defense prior to September 30, and that we 7 will be in compliance with 120AA, and thus -- you know, we've 8 given you 46 notices as to our status on that. 9 every two weeks, Your Honor, as you know, under the 120 10 So that, again, with the You get them series. 11 So my expectation, based on what we're doing, again, 12 tempered optimism, is the 47th will be our last such report, 13 and that we will have complied with 120AA and our other 14 affirmative discovery obligations. 15 even though we will be complete with our affirmative discovery 16 obligations, there's still litigation pending relating to 17 discovery. 18 compel. 19 you know, it's going to take time to go through what we have 20 been spending a lot of time gathering, and we fully appreciate 21 that. 22 compliance with regard to 120AA. 23 Acknowledging, of course, We certainly understand there may be motions to You're still going to have to review this, and you -- But by September 30, we're going to be saying we are in And, again, I'm not stating we've provided witness UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 104 of Total) 6501 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 39 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 specificity. 2 name our witnesses, and thus comply with Jencks or Giglio, but 3 at this point those discovery obligations in 701 and the ones 4 I've mentioned under the 120 series met. We're not at that point yet from either side to 5 So that's the basic report, Your Honor. 6 speak about how this bears upon trial scheduling, we have 7 previously provided trial schedules. 8 commentary on this yesterday from defense counsel. 9 And then to There was some When 120AA was decided back in June, we were thinking 10 toward a trial date. 11 of course, we were in -- we had a stay of proceedings related 12 to the appeals, and so this commission stated that those 13 circumstances caused it to not -- to dismiss -- I think you 14 dismissed as moot that, for the time being, that scheduling 15 effort, which was certainly appropriate. 16 That order changed the process and then, But to understand, I mean, 13.h, in particular in 17 that order, is a very expansive view of the prosecution's 18 requirement to produce statements. 19 statements not specifically associated with the offenses, and 20 some context related to that is appropriate at this point. 21 I mean, these are We felt we had complied with the statements 22 requirement in particular. 23 part of the order in 120, the original order 120C, and the We did seek reconsideration in UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 105 of Total) 6502 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 40 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 commission did grant, in part, that. 2 still in that order a very burdensome -- the 120H paragraph. 3 And we've obviously deliberated on it, you know, considered 4 our avenues of recourse and so forth, decided not to appeal 5 that, and have been dutifully trying to comply with all of 6 that since that time. But there was, you know, 7 So just putting that in perspective on the scheduling 8 now at the point where we are, I believe you are going to need 9 some time to go through this material, as is the defense, but 10 that we have done our due diligence in finding all of those 11 statements and considering their discoverability, and then 12 providing you the originals and offering you a substitute that 13 we believe protects the national security information while 14 providing the accused, as you must find, is -- could 15 substantially -- is in substantially the same position to make 16 a defense as he would have been with the original information. 17 18 19 So subject to your questions, Your Honor, that's my report. MJ [Col SPATH]: Let me take a look at my notes. So 20 delivery to me on or about 30 September, at least for the 120 21 piece, you believe. 22 23 CP [BG MARTINS]: Yes, my -- as of today, with three weeks to go, I have tempered optimism we're going to get there. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 106 of Total) 6503 We USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 41 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 are going to, by 30 September, be able to say no more of the 2 notices to the commission that you ordered in December of 3 2014, of which we were up to 47, and we are in compliance with 4 120AA, and our affirmative discovery obligations otherwise. 5 MJ [Col SPATH]: Do you have an estimate -- and you may 6 not, but an estimate of pages in 47, the last notice? 7 have -- how many more pages are heading my way? 8 9 10 11 CP [BG MARTINS]: you're viewing the original. LDC [MR. KAMMEN]: that? MJ [Col SPATH]: 13 CP [BG MARTINS]: 14 MJ [Col SPATH]: 15 CP [BG MARTINS]: What I was providing ---- Excuse me, sir. What was the answer to Multiple thousands. Multiple thousands. Multiple thousands. Multiple thousands. And, again, the page numbers you are getting, you are seeing the original. 17 MJ [Col SPATH]: 18 CP [BG MARTINS]: 19 And of course, I didn't hear it. 12 16 Multiple thousands. Do you Yes. The numbers that I was giving before is what they're receiving. 20 MJ [Col SPATH]: 21 CP [BG MARTINS]: I'm just trying to understand. I was trying to provide an estimate so 22 people -- parties and commission could sort of understand 23 what's coming their way. So multiple thousands coming your UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 107 of Total) 6504 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 42 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 way. MJ [Col SPATH]: Of the -- as it's been the original, the 3 produced redactions and then what it looks like in the 4 redacted form? 5 CP [BG MARTINS]: Yes. And then they'll receive the 6 summarized version that has the discoverable information in 7 it, and that, too, will be multiple thousands. 8 greater because you will be seeing the originals and the 9 substitutes. 10 MJ [Col SPATH]: Yours will be Then you had moved and made a comment 11 about witness lists, and then any discovery that may flow from 12 that ---- 13 CP [BG MARTINS]: 14 MJ [Col SPATH]: Right. ---- because of Giglio and Jencks and the 15 others. 16 position to provide the defense with things like that, a 17 witness list, a realistic witness list? 18 Do you have an idea of when your team will be in a CP [BG MARTINS]: Well, again, these are trial rights and 19 Jencks is a trial right. 20 setting the time, place and manner of discovery at this point, 21 Your Honor, and we are engaged in that. 22 this stage of 120AA, and affirmative discovery to this point. 23 You've been making statements to the effect of one to two So we are -- the commission is We're complying with UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 108 of Total) 6505 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 43 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 years. 2 We have a good feel for our case and have provided 3 them extensive discovery on the case, but we're in a position 4 pretty rapidly to provide witnesses and so forth; but we, 5 frankly, believe we ought to be litigating this. 6 MJ [Col SPATH]: It wasn't a request to do it right now, 7 it was more of a -- here's what I'm trying to get a feel for: 8 We are in the discovery phase still, clearly, just based on 9 our discussions here. And when I say one to two years, it 10 is -- I'm guessing, but I'm trying to use kind of the 11 experiences I've have thus far and how long things take ---- 12 CP [BG MARTINS]: 13 MJ [Col SPATH]: Sure. Sure. ---- and a feel for moving forward. 14 Because getting it to us is half the battle. 15 moves over to the OCAs after it comes out of our office to 16 determine if they're going to comply with the changes, if any, 17 that I've made. 18 19 20 Do we have a feel for their timeline? And then it Because I've reviewed thousands of pages, and we've sent them back. CP [BG MARTINS]: Now, Your Honor, the requests for 21 substitutions of the relief come to you. 22 summary, and then at some point you determine if the summary 23 is adequate. We provide you the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 109 of Total) 6506 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 44 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: 2 CP [BG MARTINS]: 3 MJ [Col SPATH]: Yes. The ---I was given suggested changes. Some. 4 Again, I don't want to comment on how many or how little, but 5 it's just in general we've made some suggested changes to some 6 of the requests that have come to us, and the trial judiciary 7 has come back with those. 8 OCAs for their decision. 9 that. 10 11 12 And I know they have to go to the They don't have to comply, we know What I'm trying to figure out is, when are they going to do that so that information goes to the defense? CP [BG MARTINS]: Your Honor, I would ask you to review 13 our requests, which are ex parte requests, perfectly allowed 14 and authorized under the statute. 15 MJ [Col SPATH]: 16 CP [BG MARTINS]: 17 and consider them. Absolutely. Would ask that you please review those And ---- 18 MJ [Col SPATH]: 19 CP [BG MARTINS]: We do. ---- and I think you're -- I hope you're 20 seeing there's a promptness and a responsiveness to the 21 inquiries related to the material. 22 23 So the government is seized to this. We want to provide the information that's required for this commission to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 110 of Total) 6507 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 45 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 go forward that allows the accused to make legally cognizable 2 defenses, rebut our case, or provide a sentencing case, and 3 we're just committed to it. 4 So I would ask that you review what we provide, and 5 we will remain very attentive to, you know, issues the 6 commission raises in this -- in that ex parte process, and 7 will enable you, as you have already, ultimately conclude that 8 the substitution is adequate and sign a protective order and 9 make the finding that they are in substantially the same 10 position. 11 So I think this is a major milestone in completion, 12 and it does extend also to our other affirmative discovery 13 obligations that are appropriate for this point in the 14 discovery process that the commission is now seized of as well 15 and managing, in terms of time, place and manner of discovery. 16 Subject to any further questions -- if I may, just as 17 I was hearing the summarization of the 802, the commission is 18 still envisioning two single-week sessions in this calendar 19 year, correct? 20 MJ [Col SPATH]: I am envisioning some combination of two 21 weeks, be it the originally scheduled weeks, but I'm not sure 22 how effective our first week is going to be if we don't 23 identify what we're going to do in that week. Then the week UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 111 of Total) 6508 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 46 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 of December where we just talked about that, where we have a 2 conflict, it appears. 3 CP [BG MARTINS]: I understand. We have offered some 4 alternatives to that second week, but I just wanted to see if 5 I'm understanding. 6 MJ [Col SPATH]: Mine was a proposal that we could travel 7 down here once and be here for two weeks, which would give -- 8 which would give myself satisfaction that I set out a 9 three-week schedule, a relatively reasonable schedule for 10 2016, and I just want to comply with the intent of that, if I 11 can, as I indicated to Mr. Miller a moment ago. 12 And so I offered up, as one reasonable alternative, 13 Veterans Day week and the week after, which takes into account 14 the move so that they're not trying to do multiple things and 15 we don't have the move stress upon them, and takes into 16 account that we need to figure out a battle plan for 332 so 17 that we effectively use our time here with any witness 18 testimony and any other issues with that, plus fully brief and 19 respond to issues related to the Limburg. 20 And so if it makes more sense to use two weeks 21 together, I hesitate to say save the taxpayers money -- I have 22 no idea if that does or not, and there's not a study -- but it 23 does save wear and tear on everybody traveling because we're UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 112 of Total) 6509 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 47 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 here for an extended period of time. 2 hoping you all will talk about it and let me know how it 3 sounds, but that was it. 4 board ---- 5 CP [BG MARTINS]: 6 MJ [Col SPATH]: 7 CP [BG MARTINS]: It was an offer. I'm Right now, October is on the I understand. ---- and so is December. Your Honor, just in context of the 8 discovery, and I'm trying to provide information to the 9 commission to assist in its scheduling of things in light of 10 the discovery information update that I just provided, the 11 session -- series of sessions, 17 to 21 October would seem to 12 enable some digestion on your part of the material coming your 13 way with regard to discovery now. 14 MJ [Col SPATH]: 15 CP [BG MARTINS]: 16 MJ [Col SPATH]: Yes. I plan to use my time ---- Right. I want to be -- General Martins, I think 17 you know this. 18 has flowed to me. 19 not getting into any of the ex parte discussions. 20 the process that's unfolding. I have been very responsive when your material And so I -- I'm not trying to get in -- I'm 21 CP [BG MARTINS]: 22 MJ [Col SPATH]: 23 We all know Right. But it has occasionally taken some lengthy period of time when there have been suggested UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 113 of Total) 6510 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 48 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 revisions to get an answer back. 2 recognize that. 3 is, coming to us is only part of the battle. 4 your substitutions, sign the protective order and the 5 information moves to the defense, that's great. 6 And it's not from you. This is not a "it's you." I What I'm asking If I agree with It's when we have questions or minor issues, or major 7 issues or wholesale revision, I'm not saying which ones they 8 are, because I'm not suggesting you're not complying. 9 just saying that when we have those changes, it has I'm 10 occasionally taken OCAs a really long time to respond to you 11 all. 12 responded to you all, you would come to us quickly. 13 14 And I presume it's them, because I know if they CP [BG MARTINS]: commentary. You're clear ---- 15 MJ [Col SPATH]: 16 CP [BG MARTINS]: 17 18 Your Honor, I wasn't -- I was making no I understand. ---- we're hard at work at this material, as all of we are. MJ [Col SPATH]: So in October, I plan to use my time in 19 October to start, if not work through, what I'm getting from 20 you all, as I have as every notice has come in, to work 21 through that. 22 are going to help me with their initial review so I can do my 23 review. And I plan to do that. And I have people who We really are working to get those back to you as UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 114 of Total) 6511 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 49 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 quickly as we possibly can. 2 getting it to us is half of that concern. 3 CP [BG MARTINS]: Mine was more directed at, Understand. But yet, when you do get us 4 material that you've cleared on, we are then putting Bates 5 numbers on it and getting it out to them. 6 MJ [Col SPATH]: 7 CP [BG MARTINS]: Absolutely. I was merely making the comment in the 8 context of this discussion that, from the point of view on 9 discovery, the volume of material that has come to you that -- 10 we know there is some of this -- that is being pretty close to 11 being ready to go. 12 that we've talked about, it's been ongoing, that we believe 13 that the October week can be well spent, that there's 14 nondiscovery-related things and stuff on the docket that's 15 been discussed here that could be done. 16 Because there's been that back and forth And then, you know, we have our eyes on other weeks 17 in November, December -- October, November, and December, 18 hopefully getting actually some space between the October 17 19 to 21 week. 20 maybe there's not enough unclassified material on the docket. 21 So, the -- and the -- and that the schedule on -- that you've 22 laid out for 2017 will enable us to then get into any 23 contested issues, again relating to discovery and the Our view at this point is two consecutive weeks, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 115 of Total) 6512 USCA Case #18-1279 [T (Page 116 of Total) Document #1754023 Filed: 10/04/2018 Page 50 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 51 of 141 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 MJ [Col SPATH]: 22 23 Thank you. Thanks, Mr. Miller. Lieutenant Piette, I see that learned counsel, Mr. Kammen, and the two assistant defense counsel, Ms. Eliades UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 117 of Total) 10015 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 52 of 141 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]: With regard to General Baker, Colonel 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 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 (Page 118 of Total) 10016 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 53 of 141 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 (Page 119 of Total) 10017 USCA Case #18-1279 [T (Page 120 of Total) Document #1754023 Filed: 10/04/2018 Page 54 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 55 of 141 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 (Page 121 of Total) 10041 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 56 of 141 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 (Page 122 of Total) 10042 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 57 of 141 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 (Page 123 of Total) 10043 USCA Case #18-1279 [T (Page 124 of Total) Document #1754023 Filed: 10/04/2018 Page 58 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 59 of 141 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 (Page 125 of Total) 10047 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 60 of 141 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 (Page 126 of Total) 10048 And as USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 61 of 141 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 (Page 127 of Total) 10049 USCA Case #18-1279 [T (Page 128 of Total) Document #1754023 Filed: 10/04/2018 Page 62 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 63 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Just some general comments about yesterday and the 2 process that brought us here. 3 findings of fact yesterday, but as they indicated, I've ruled 4 on two occasions that General Baker acted in a manner outside 5 his authority. 6 We already went through the His decision to approve a requested release of 7 counsel for good cause, or release counsel for good cause 8 shown on the record, as stated by him, was unreviewable and 9 unilateral, and that flies in the face of commonsense judicial 10 review, as far as we can tell, every states' bar rules, court 11 precedent and two orders of the commission. 12 For defense counsel to have the authority stated by 13 the chief defense counsel would effectively give the defense 14 counsel the ability to dismiss any commission case or any 15 criminal case at any stage in the process for any reason when 16 they determine good cause, and then refuse to testify in court 17 to even explain what the good cause shown is, other than what 18 is submitted in written form. 19 CDC [BGen BAKER]: 20 object to the proceedings. 21 22 23 MJ [Col SPATH]: Your Honor, at this point I want to General Baker, you're not a party of record and we're moving forward. CDC [BGen BAKER]: You need to take your seat. I just want ---- UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 129 of Total) 10053 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 64 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 5 MJ [Col SPATH]: General Baker, you need to take your seat. CDC [BGen BAKER]: I again object. This court does not have personal jurisdiction over me. MJ [Col SPATH]: I appreciate that. We certainly have 6 considered that, and I disagree. 7 through why I disagree with that. 8 950t and the language that precedes every single rule until 9 you get to (31) and (32). 10 11 12 13 14 CDC [BGen BAKER]: I would suggest reading Your Honor, I just want to make sure that you are denying me the opportunity ---MJ [Col SPATH]: heard. Thank you. I'm denying you the opportunity to be It's a summary proceeding. CDC [BGen BAKER]: I understand. 15 clear. 16 me that I cannot say them. 17 And I'm not even going to go I just want the record There's things that I want to say, and you're telling MJ [Col SPATH]: General Baker, this is the last chance. 18 I don't want to -- this is really not a pleasant decision. 19 And I know that some of you might think that this is fun or 20 lighthearted, right? 21 base. 22 this is fun. 23 I've heard commentary out around the Alls you've got to do is get on the Internet. None of this is easy. I have spent a lot of time reviewing the rules that UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 130 of Total) None of 10054 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 65 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 apply to this commission, and I appreciate -- General Baker, 2 no more. 3 4 5 Sit down, please. CDC [BGen BAKER]: Your Honor, I have spent a lot of time, too. MJ [Col SPATH]: I have spent a lot of time as the judge. 6 And any system of justice understands that, except apparently 7 participants in the commission, about following orders and 8 following a process. 9 get the suspension in here in time, I'll stop. 10 I know there's a habeas filed. Do you know what I won't do? If we I won't tell that judge 11 I'm not going to follow your order, because I know better. 12 I'm going to ignore that order and press on because I disagree 13 with you. 14 comes in and this is suspended, I will stop. 15 16 17 18 That's not going to happen. CDC [BGen BAKER]: MJ [Col SPATH]: General Baker, I don't want to have to have you removed. CDC [BGen BAKER]: 20 MJ [Col SPATH]: I got it, sir. And I don't want to add to the contempt findings. 22 23 Your Honor, again, I request to be heard. 19 21 And so if that order This is a difficult, unpleasant decision, and frankly, it's an affront to the process of justice that we UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 131 of Total) 10055 USCA Case #18-1279 [T (Page 132 of Total) Document #1754023 Filed: 10/04/2018 Page 66 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 67 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 those occasions, as we're going to be discussing the 2 circumstances that have led again to you being in court 3 without your learned counsel and the defense team. 4 5 Do you understand what I've explained to you thus far? 6 ACC [MR. AL NASHIRI]: 7 MJ [Col SPATH]: Yes. Yes. And that's a yes. Thank you. 8 For everybody in the audience, we had an 802 session 9 back at Andrews Air Force Base, or Joint Base Andrews, at the 10 terminal, where we discussed some of the issues we're going to 11 deal with as we move forward. 12 802 session to subpoena Ms. Eliades and Ms. Spears since they 13 are not here despite multiple orders to be here. 14 I asked the government at that I asked the defense counsel about any detailed 15 counsel to the case. 16 he's the only detailed counsel to this particular case. 17 And defense counsel let me know that I discussed also securing Mr. Koffsky to come 18 testify -- I'll add some more to that based on some e-mail 19 traffic -- but at the 802, I just asked for him to be 20 contacted to provide some testimony. 21 was available, and I -- the government indicated he was, and I 22 covered how many witnesses we were going to call each day. 23 I asked if Mr. al Darbi Trial Counsel, do you want to add anything to my UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 133 of Total) 11052 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 68 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 summary of the 802? 2 3 TC [MR. MILLER]: Nothing from the government. Thank you, Your Honor. 4 MJ [Col SPATH]: 5 DDC [LT PIETTE]: 6 MJ [Col SPATH]: 7 Defense Counsel? Defense concurs. All right. Nothing to add. Let's deal with the parties. Trial Counsel, if you would cover the parties -- I 8 believe they're the same parties who were present last time -- 9 and then whether or not you are transmitting. 10 TC [MR. MILLER]: Good morning, Your Honor. These 11 proceedings are being transmitted via CCTV to locations in the 12 United States pursuant to the commission's order. 13 Present for the United States are Brigadier General 14 Mark Martins; myself, Mark Miller; Colonel John Wells; and 15 Major Michael Pierson. 16 Smith, Master Sergeant Vanessa Pichon, and Staff Sergeant 17 Kevin Creel. 18 supervisory -- excuse me, are OGC lawyer Patrick O'Malley; 19 Joseph Castellano of the FBI. 20 here. 21 23 Present in the back of the courtroom are No other further persons are Thank you. MJ [Col SPATH]: 22 Also present is Mr. Forrest Parker Thank you. Defense Counsel, do you want to cover who's here for you? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 134 of Total) 11053 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 69 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 DDC [LT PIETTE]: Yes, Your Honor. Good morning. Present 2 for the defense on behalf of Mr. al Nashiri is myself, 3 Lieutenant Alaric Piette, and Ms. Brandi Janes, civilian. 4 Also present with the MCDO, but not directly representing 5 Mr. al Nashiri, is Colonel Aaron. 6 MJ [Col SPATH]: All right, thanks. All right. So since 7 we had the 802, a couple of things have transpired. 8 received a brief related to the DoD civilians, and it was a 9 motion to quash the subpoena. One is we I had a chance to look at it 10 today. 11 exhibit ahead of time, I've already indicated we're going to 12 accept it so that we can kind of move forward and figure out 13 the road ahead. And so while I recognize it did not receive an AE 14 And I communicated that to the staff. Once we accepted it, I read it. And in general, my 15 plan is to establish a briefing cycle and then work to have 16 their attendance secured at either the February or March 17 sessions. 18 on Wednesday to secure their attendance for Friday, and it was 19 short notice. 20 don't like to be notified that they're going to have to show 21 up and testify in a day or two and the issues at hand, I don't 22 have any concerns with securing their attendance later in 23 time. I more than recognize that I asked the government And so understanding that sometimes people UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 135 of Total) 11054 USCA Case #18-1279 [T (Page 136 of Total) Document #1754023 Filed: 10/04/2018 Page 70 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 71 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 the government last time to work to secure their attendance to 2 testify. 3 we got third-party filings, which I accepted the first time 4 where the civilians through counsel made various arguments to 5 either quash the subpoena or alter the attendance requirements 6 or something like that. That process got underway. While that was going on, 7 It was pretty clear by the end of the session that I 8 wanted them to come and testify, as was made absolutely clear 9 when I issued the docketing order. The docketing order I 10 think was a fair indication that I'm not granting any motion 11 to quash. 12 schedule to have them come testify by VTC to a point, but they 13 need to be here. 14 I am certainly amenable to working on their In response to the docketing order, we received 15 proposed third-party filings that, frankly, were a 16 cut-and-paste from the original third-party filings with the 17 very same arguments, so I'm not accepting those. 18 seen them. 19 new briefing order, no new briefing cycle. 20 covered this. 21 There's nothing new. I've already So there's going to be no We've already And so, Trial Counsel, any updates on -- to -- are 22 they going to show up at the Mark Center? 23 subpoena them again? Do we need to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 137 of Total) 11536 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 72 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MATC [COL WELLS]: Your Honor, briefly, we have no 2 indication from the individuals that they will comply with the 3 subpoenas which are, as written, to appear at the Mark Center 4 to be ready to testify at 10:00 tomorrow, Tuesday, with the 5 change in events. 6 time until 1300. 7 to be ready at the Mark Center and wait further instructions 8 to be ready to testify. 9 You were not scheduled to convene at that But I think a reasonable interpretation is That's where we are. Maybe a further inquiry with their supervisor would 10 be important. 11 released any of the defense counsel, he should know where they 12 are, and if he needs to, he should communicate with them and 13 find out exactly what their plans are. 14 Also with Lieutenant Piette, since you have not Sir, about these third-party filings, 393, I 15 understand that you're not going to accept them, but I do 16 believe there is new information in there that should concern 17 the commission. 18 responsibilities to that which neglects to include the two 19 required provisions that are specified in the regulation: 20 is to follow all rules and regulations, and number two, to 21 comply with all orders of this commission. 22 23 They have attached an agreement of one So that agreement is something that the prosecution has not seen, other components of the government have not UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 138 of Total) 11537 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 73 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 seen. 2 compliance with the regulation for their qualifications. 3 so an appropriate inquiry with them personally would be 4 prudent, and the reason why they should appear as witnesses. 5 And then number two, also with their supervisory chain. 6 think that is more concerning, and the government would like 7 an opportunity to make that on the record ---- 8 9 This is within the MCDO files and seems to be out of MJ [Col SPATH]: And So I You all are welcome -- you all are welcome to file whatever you think is appropriate. I will 10 accept your filings as a party standing by. 11 more third-party -- third party filings with the same 12 arguments that we've already spent a whole session discussing, 13 I'm not interested. 14 But as for any If there's a reason to quash the subpoena, i.e., it's 15 oppressive in some manner to have them travel to the Mark 16 Center close to where they work, I'd be interested. 17 haven't heard any of that. 18 thing, I don't have the authority, which I do. 19 defense community can unilaterally act and it's unreviewable, 20 even though I disagreed with that. 21 appellate court has said differently yet. 22 remarkably silent, so ---- 23 MATC [COL WELLS]: I just keep hearing the same Yes, sir. And the And again, not a single They have been And to comment on that point UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 139 of Total) But I 11538 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 74 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 then, this filing in 393 from Ms. Eliades and Spears where the 2 requested relief is that you accept that filing in lieu of 3 their appearance to discuss good cause on the record, you've 4 rejected that, will not accept those filings. 5 You want them personally to appear. We've issued a 6 subpoena. They should appear at the Mark Center at 10:00 7 tomorrow. We've requested that the VTC suite be made 8 available. 9 directions about their appearance time, we will modify that 10 If the commission gives us other orders and appropriately. 11 MJ [Col SPATH]: I think -- it appears tomorrow there's 12 going to be some use of this facility by another court 13 proceeding. 14 what the subpoena says. 15 at 10 in accordance with the subpoena, even though we 16 shouldn't have to subpoena DoD employees that taxpayers pay 17 for. 18 they'll be there at 10:00 tomorrow. 19 them until sometime after 10 because the schedule for tomorrow 20 is that other proceeding to be here from 8 to 10. 21 long it takes to get them out and get us in, hopefully by 11, 22 we'll get started. 23 And so kind of two things: 10:00 tomorrow is It's reasonable for them to be there But separate from that whole effort, it's reasonable MATC [COL WELLS]: I imagine we won't get to Okay, sir. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 140 of Total) 11539 So however USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 75 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: If they're not there, different issue, 2 and then we can talk through our next steps, which we've been 3 down this road before. 4 next step. 5 MATC [COL WELLS]: 6 MJ [Col SPATH]: If that's the next step, that's the All right, sir. All right. Thank you. All right, Colonel Aaron, if 7 you could, could we chat for a few minutes? 8 time, I just -- I want to get some updates and make sure I 9 understand where we're going. 10 11 12 Same as last I assume you're still the Acting Defense Counsel -Chief Defense Counsel in this case? DCDC [COL AARON]: I am, Your Honor. Before we start, I 13 would like to start, again, by saying that I'm here 14 voluntarily to answer what questions I feel that I can answer 15 from the court. 16 opinion that it can order me to be here and would ask the 17 court to state on the record the basis upon which it believes 18 it can order me to be here. 19 But I renew my objection to the court's MJ [Col SPATH]: I would do this. 20 have the authority, don't show up. 21 presumed to be lawful. 22 early on in our military careers. 23 lawful. If you don't think I Orders are -- orders are That's -- I think we learned that They're presumed to be And you violate them at your own risk. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 141 of Total) 11540 So if you USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 76 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 don't want to be here, leave. DCDC [COL AARON]: MJ [Col SPATH]: 5 DCDC [COL AARON]: 7 Your Honor, I'm trying to cooperate and ---- 4 6 We'll figure out what happens. Right. ---- assist the court in understanding the situation. MJ [Col SPATH]: Right. And that's why I said last time, 8 it's not meant to be -- I'm not going to explain, justify, and 9 debate why I think I have authority as a commissions judge to 10 compel the attendance of somebody who has supervisory 11 responsibilities over this team. 12 you think I'm wrong and it's worth taking that risk, then 13 don't show. 14 I'm doing the best I can with the tools I have or I don't 15 have, so ---- If there comes a point where I wouldn't advise it, but I'm not your lawyer. 16 DCDC [COL AARON]: 17 MJ [Col SPATH]: I understand your position, Judge. With regard to Ms. Eliades and 18 Ms. Spears, I assume you're familiar with civilian witnesses 19 in government employ and their requirements to make themselves 20 available for this process and their supervisor's role in that 21 process. 22 DCDC [COL AARON]: 23 MJ [Col SPATH]: I am. And so are you assisting the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 142 of Total) 11541 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 77 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 prosecution -- and them, frankly -- in understanding -- I 2 didn't write 13-4, and I didn't write those rules. 3 you helping communicate that particular issue to these two 4 counsel? 5 DCDC [COL AARON]: But are Your Honor, I think there's room for 6 interpretation as to what 13-4 provides, and I certainly 7 disagree with what I think is a superficial reading and 8 understanding of that that Colonel Wells has proffered. 9 The issue is -- is significantly more difficult when 10 dealing with a situation such as this where the witnesses are 11 unwilling to appear, have sought, through a legal process, to 12 have that subpoena quashed, and are represented by counsel in 13 that effort. 14 issues that greatly complicate the simplistic approach that I 15 can simply order them to be here and the concept that my order 16 would have any significance, whatsoever, on their intention of 17 what to do. 18 There's a number of employment-related legal MJ [Col SPATH]: No, and I appreciate that. Mine wasn't a 19 request for you to order them. 20 read this a few ways, but it does say, "Civilian employees of 21 the United States can be required to testify incident to their 22 employment with appropriate travel orders issued for this 23 purpose," and you don't need a subpoena. I mean, again, I think you can UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 143 of Total) 11542 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 78 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 DCDC [COL AARON]: And, Your Honor, I have provided for 2 travel orders to be issued for them and to have them put on 3 the manifest on the flight down here. 4 not done so. 5 MJ [Col SPATH]: Obviously, they have No, I appreciate that. That helps. So 6 it seems to me you are, within the rules, at least, trying to 7 communicate to them what their requirements may be. 8 9 Colonel Wells? MATC [COL WELLS]: Your Honor, if I could, I don't think 10 there's been an inquiry whether or not he's communicated with 11 them. 12 MJ [Col SPATH]: Well, and I'm walking a cautious line. I 13 don't want to get too much into what the communications may or 14 may not be yet. 15 The other is, as a supervisory attorney -- we all 16 have these rules. 17 responsibilities over anyone, so if you have supervisory 18 responsibilities over Lieutenant Piette, for example, as the 19 chief defense counsel, do you agree one of those 20 responsibilities is that he conforms, or any of those who work 21 for you conform with their Rules of Professional 22 Responsibility? 23 As the supervisory attorney with DCDC [COL AARON]: I would say so, yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 144 of Total) 11543 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 79 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: All right. It appears the Army Rules of 2 Practice -- or the Army Rules of Professional Responsibility, 3 your bar rules, Ms. Eliades' and Ms. Spears' bar rules all say 4 the same thing, word for word, so I think yes. 5 through the when ordered by a tribunal to continue 6 representation or to be somewhere, Rule 1.16, which is the 7 same for everybody, whether you like it or not, you're 8 supposed to show up. 9 So -- and I get they're not coming. And I've been But part of that 10 responsibility, when you read through that is, if you are 11 released, or believe you don't have to be there, you have some 12 requirement to work some kind of turnover with the people who 13 you've left behind. 14 contemplate you just walk away and never return a phone call. 15 Ms. Yaroshefsky said as much. It doesn't And so have you communicated to them their need to be 16 working a turnover with Lieutenant Piette -- because, like it 17 or not, he's here, they're not -- and to make sure that they 18 are doing what they can to assist him, because he's still here 19 representing Mr. al Nashiri. 20 21 22 23 DCDC [COL AARON]: I believe they understand their responsibilities in that regard. MJ [Col SPATH]: As their supervisory attorney in relation to this case, have you ensured they understand their UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 145 of Total) 11544 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 80 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 responsibilities? 2 DCDC [COL AARON]: 3 MJ [Col SPATH]: 4 I would say that I have. Have you detailed any other defense counsel to this case yet? 5 DCDC [COL AARON]: 6 MJ [Col SPATH]: I have not detailed any counsel. And, I don't know, what are we, four 7 months into this? 8 you just going to leave Lieutenant Piette sitting there? 9 Are you going to detail any counsel, or are DCDC [COL AARON]: Judge, it is the longstanding practice 10 of chief defense counsel before me and myself in this case to 11 fulfill our responsibility to make resources available to the 12 team. 13 the longstanding approach of the organization, it is the 14 learned counsel's responsibility and right to determine 15 whether or not they want counsel detailed and when and what 16 counsel they want. 17 I have made resources available. And consistent with And without learned counsel, the most important 18 resource that is necessary for the continuation of this 19 capital case, we are not in a position to determine whether or 20 not counsel should be detailed or not. 21 available and, upon learned counsel indicating their desire, I 22 stand prepared to detail counsel to the case. 23 MJ [Col SPATH]: Those resources are Well, I guess my question would be that I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 146 of Total) 11545 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 81 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 recognize that with learned counsel here, they have unique -- 2 they have a unique role to play under the rules. 3 didn't excuse Ms. Eliades or Ms. Spears. 4 decided to excuse Ms. Eliades and Ms. Spears. 5 Mr. Kammen General Baker I mean, the way it could have been done for those 6 two, pretty clearly, was Mr. Kammen could have excused those 7 two and then, at least in his world, asked General Baker to 8 excuse him. 9 went to General Baker, and they were all three excused. 10 But instead what happened is the three of them Not by learned counsel. 11 Again, for the two DoD civilians -- I know you 12 recognize that distinction -- they were excused, no matter how 13 the learned counsel felt, because he never told us how he 14 felt. 15 at least, and another, I think, civilian were still detailed 16 to this case. 17 be the ones to undetail them, and you undetailed them. 18 And those three walked away. And two military lawyers So you just told me that learned counsel would DCDC [COL AARON]: Sir, learned counsel indicate their 19 desire when we provide -- make resources available, if they 20 would like them detailed. 21 signs the memo detailing or undetailing them, but in 22 accordance with the wishes and desires and the stated 23 preference of the learned counsel. The chief defense counsel, yes, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 147 of Total) 11546 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 82 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: Well, I understand, but after the learned 2 counsel left and said he had no more responsibilities in this 3 case, are you saying he then communicated that you should 4 undetail the two detailed military defense counsel and the 5 civilian? 6 DCDC [COL AARON]: 7 MJ [Col SPATH]: Judge, the situation ---No, I just want to understand. You told 8 me learned counsel decide. 9 left, in his wake there were other counsel detailed to this 10 11 Okay. He was gone. And when he case. DCDC [COL AARON]: And I had no way of knowing, without 12 learned counsel, whether those counsel would be acceptable on 13 the case. 14 allow the court to lock the defense team in by requiring their 15 appearance, I undetailed them. 16 And in order to maintain the status quo, and not to Your Honor, I have an independent responsibility to 17 exercise my judgment to determine which members -- which 18 attorneys would best constitute a team for this client, and by 19 ordering attorneys who had not yet met with the client and 20 entered into an attorney-client relationship with the client, 21 you were thereby interfering with my ability to exercise my 22 independent judgment as to what attorneys would best 23 constitute the team for this client. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 148 of Total) 11547 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 83 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 5 MJ [Col SPATH]: Well, did you consult with the learned counsel to see if this is the best idea? DCDC [COL AARON]: Your Honor, as you know, I don't have learned counsel to consult with. MJ [Col SPATH]: Right. So learned counsel need to be 6 there to figure out whether or not you're going to detail them 7 or keep them. 8 counsel or any -- did you make an effort to consult with legal 9 counsel? But without any consultation with learned I've said he's still detailed. So did you pick up 10 the phone, send him an e-mail and tell him, what do I do here? 11 You've walked away and left me with nobody. 12 here? 13 14 15 DCDC [COL AARON]: What do I do Your Honor, we obviously have a difference of opinion as to the status of Mr. Kammen. MJ [Col SPATH]: Colonel Aaron, stop that. We do have a 16 difference of opinion. 17 judges rule and then people follow those rulings, or they go 18 and appeal, and then an appellate judge or judges agree or 19 disagree with me, and then we respond to those. 20 But the way court systems work is The way court systems do not work anywhere in the 21 United States, and, frankly, almost every other country -- the 22 way court systems don't work is when parties disagree with the 23 judge, they say I disagree. Thanks for your input. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 149 of Total) 11548 We don't USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 84 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 agree. 2 something else. 3 have courts that we can appeal to. 4 higher-level courts. 5 And they just march on in that direction without That's why we have 62 appeals. That's why we That's why we have I mean, so the fact that you and I disagree is 6 irrelevant to the conversation. 7 me you need learned counsel to figure out what to do with this 8 stuff for every decision, even though, again, that's not 9 exactly what the law says in many jurisdictions, but okay. 10 My conversation is, you told I'm just trying to figure out when you made the 11 decision to undetail them, all of the resourcing for the team 12 except for Lieutenant Piette and the mitigation specialist who 13 we know is here helping. 14 you undetailed those three attorneys, did you consult with 15 learned counsel to figure out if that was a good plan or not? 16 17 DCDC [COL AARON]: MJ [Col SPATH]: 19 MATC [COL WELLS]: 21 I did not feel I had a learned counsel with which -- whom I could consult, Your Honor. 18 20 Unlike mitigation specialists, when Okay. Your Honor, if the prosecution could be heard on that point? MJ [Col SPATH]: You'll be heard, I promise. 22 trying to figure out the lay of the land. 23 obvious to me, but that's where we're at. It certainly seems UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 150 of Total) 11549 I'm just USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 85 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Okay, Colonel Aaron, as always, I appreciate you coming to chat. 3 4 Thank you. Trial Counsel, come on up. MATC [COL WELLS]: Your Honor, the prosecution would 5 request that you inquire of Colonel Aaron again on this point. 6 The defense filing, AE 389 Attachment C, is a letter from 7 Brigadier General Baker to the convening authority explaining 8 that Mr. Kammen would remain on the case and available for the 9 transition of other learned counsel and that he may bill for 10 that. 11 counsel. So it cannot be that the defense is without learned 12 Additionally, you have ruled that they are not 13 released until they have a discussion with you about good 14 cause, and that's what you're seeking from Ms. Eliades, 15 Ms. Spears, and from Mr. Kammen. 16 inconsistent position from Colonel Aaron. 17 uninformed that General Baker has filed this with the 18 convening authority indicating that learned counsel will still 19 remain. 20 military defense counsel, Lieutenant Piette, has learned 21 counsel available to him to consult and advise him about the 22 approach. 23 So it seems to be an And maybe he's Additionally, it seems to be that the current So it's clear that the approach, at least from UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 151 of Total) 11550 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 86 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Colonel Aaron, if he believed that he made an independent 2 decision, is to gut the defense of any other military defense 3 counsel to assist and he is blocking communications and 4 failing to communicate with learned counsel. 5 6 Sir, do you have any questions of me on that? MJ [Col SPATH]: I don't. For the record, I mean, yes, 7 that appears obvious to the court. 8 It appears to be a strategic decision to under-resource and 9 make it appear as if this team is under-resourced. 10 I've made comments before. But let me ask this for the government. I view my 11 responsibility to be neutral, most importantly, and to attempt 12 to move a process fairly through any -- whatever justice 13 process we're in. 14 courts-martial, if I'm here through the commission, fairly -- 15 right? -- and judiciously, and the fair administration of 16 justice -- and that's the charter, and we all know that. 17 I'm trying to do that. 18 If I'm, you know, home station through a So But I've got to tell you I feel like I'm in the 19 wilderness on the -- fighting this particular issue because 20 it's not my fight. 21 really, what are you all doing to -- what are you all doing to 22 make sure the people who are doing this are held responsible? 23 I can't do it, that's clear. I am attempting to do what I can, but And again, is it in my lane? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 152 of Total) 11551 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 87 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 How much is in my lane? 2 And I'll be very open with both sides. I went home. 3 I was trying to review -- I mean, obviously I'm spending a lot 4 of time reviewing my cases to figure out my options. 5 watched the military judge in a courts-martial, Hassan, take 6 on a battle that was not his, right, the beard issue, and 7 ultimately have to recuse himself. 8 9 I And so a judge's responsibility is, one, right, recuse yourself if you have to. But the responsibility is to 10 remain with the case and not recuse yourself if you don't have 11 to, whether you like it or not, right? 12 non-recusal unless there's a reason to recuse yourself. 13 that is for a good purpose, because otherwise, if judges don't 14 like a process they'll just walk away. 15 myself. 16 right, where this is tough work. 17 for me to say I'm going home, which is exactly, by the way, 18 what happened on this side, which is so frustrating: 19 going home. And I'm going to recuse And in the spirit of full disclosure, there are days, 20 MATC [COL WELLS]: 21 MJ [Col SPATH]: 22 MATC [COL WELLS]: 23 The presumption is And it would be a lot easier I'm Yes, sir. So what are you all doing? Yes, sir. What the response to that would be, number one, always the interest of the accused to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 153 of Total) 11552 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 88 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 have proper counsel. 2 and objective. 3 that you've done to make the appropriate inquiries and put in 4 place the appropriate mechanisms to request voluntary 5 compliance by civilian counsel and learned counsel. 6 The court must remain neutral, detached, I think that you are on pace with everything And as you do that, new information comes out. For 7 example, in the filings from Ms. Eliades and Ms. Spears, they 8 present their agreement of responsibilities, which indicates 9 pretty shocking and appalling mismanagement by the MCDO chain 10 of command by not having them obligated with two essential 11 requirements to appear in front of this court, is to comply 12 with rules, regulations, and with orders and directives from 13 this commission as to the conduct of proceedings. 14 So with that, I think it's dawning on us since last 15 Friday in that filing that supervisors, Mr. Koffsky, perhaps 16 the Navy JAG, and others, should take a closer look, as the 17 prosecution is interested in getting to the evidence of the 18 case. 19 victims, and for justice. 20 that the accused has proper counsel that's required under the 21 law. 22 the proper pace. We have an obligation for the family members and the We have an obligation to make sure So we should not rush to judgment. 23 We should proceed at And we also know that the individuals involved, the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 154 of Total) 11553 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 89 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 learned counsel and the two civilian counsel, have options to 2 pursue collaterally, which they've indicated that they would. 3 There are other options that this commission has, considering 4 their failure to respond to the subpoena. 5 prosecutor and the trial counsel in our matter will have a 6 discussion with the convening authority's office and, if need 7 be, to the Office of General Counsel to talk to the next 8 higher superior. 9 I know the chief So all of these are going forward to implement the 10 commission's instructions and directives. 11 be a fundamental defect in the Military Commission Defense 12 Organization that they believe they do not have to follow the 13 orders. 14 said, "I am not an enforcement mechanism," but clearly the 15 rules and regulations place that on the whole organization and 16 its members, including the chief defense counsel. But there seems to General Baker spoke in front of this commission and 17 But here you have a writing now in 2015, as early as 18 that, that General Baker should have reviewed, and it clearly 19 neglects to include that provision. 20 professional mismanagement, and inquiry is appropriate. 21 22 23 So I think we have some Sir, that's all I can say at this point. MJ [Col SPATH]: Well, I think they're important inquiries, because I think we all know if we don't resolve UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 155 of Total) 11554 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 90 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 these issues this time, even if we get another -- another -- 2 because the other learned counsel is still detailed to this 3 case, based on my rulings and the lack of any other court 4 saying differently, it seems obvious. 5 But when we get another learned counsel, we all know 6 what can happen six, seven, eight months in, middle of trial, 7 day before trial starts, we do this again. 8 and we talk about how we are -- you know, defense counsel is 9 looking into other options. 10 And we sit around How long are we going to look? This case has been pending for years. 11 And so as I've said, we are moving forward. If I 12 were the defense community, I would resource the team. 13 were the defense community, I would recognize my obligations. 14 MATC [COL WELLS]: 15 MJ [Col SPATH]: Sir ---But I have to stay in my lane, too. 16 much can I order it? 17 appearance, and you saw what happened. 18 them ---- 19 MATC [COL WELLS]: 20 MJ [Col SPATH]: 21 MATC [COL WELLS]: 22 23 If I How I ordered detailed counsel to make an They undetailed Yes, sir. ---- without consulting learned counsel. Well, yes, sir, and I think that's their choice. MJ [Col SPATH]: And in a federal filing -- looking at it, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 156 of Total) 11555 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 91 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 I forgot -- in a federal filing, the defense community told a 2 federal judge, We can have learned counsel assigned to the 3 case in 30 days. 4 district judge. 5 back and amended the filing to let the judge know, well, when 6 we said 30, we meant probably a year because that's since, of 7 course, come to pass. That's in a federal filing to a federal We're 120 days out. 8 MATC [COL WELLS]: 9 MJ [Col SPATH]: I wonder if they've gone Sir, we will look at that point. There are many out there. Again, I can't 10 refer a case to DoJ. 11 away from your representational responsibilities wholesale, 12 after being paid the kind of money that somebody was paid, 13 seems to me to be something I'd look into. 14 refer a case. 15 If I could, I would, because walking But again, I can't I work really hard to stay in my lane. MATC [COL WELLS]: Yes, sir. I think at this point the 16 commission is still in a fact-finding mode, requesting the 17 three counsel to show cause on the record and have a 18 discussion. 19 incorrect. Some of their bases for withdrawal may be 20 You've already heard testimony from Professor 21 Yaroshefsky that she was not advised that there was an 22 outstanding ruling or request from the defense to use the 23 courtroom or other parts of the ELC to conduct attorney-client UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 157 of Total) 11556 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 92 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 meetings. 2 because she said he had no further options based on the 3 information presented to her. 4 that other option, she might not have walked down the analysis 5 of a mandatory withdrawal, but a voluntary withdrawal. 6 It seems that that was pivotal and material, But if she had had knowledge of At the end of the day, though, if you disagree with 7 commission rulings and you do have an ethical conflict, the 8 rules do say if the commission issues an order that you are 9 retained, then you are retained; and there's strong case law 10 that provides the attorneys protections against claims of 11 unethical conduct in that circumstance. 12 So we are doing everything we can first and foremost 13 to save the learned counsel and the DoD civilian counsel from 14 an adverse finding of fact that they've walked away and 15 abandoned their client. 16 we're still in that process, sir. 17 if they will not participate, you will be bound to make 18 specific findings of fact as to their conduct before this 19 commission. So the prosecution would suggest And ultimately, I believe 20 We have made a filing suggesting that there's ways to 21 disqualify them and bar them from further proceeding here, and 22 that would be adverse. 23 to preserve objectivity, you would refer that to the chief And we've suggested that in that case, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 158 of Total) 11557 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 93 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 judge. 2 just a procedural suggestion. 3 fact-finding. 4 the attorney who has served Mr. Nashiri for eight years, 5 Mr. Kammen, going forward. I don't think we're there at that point yet; that's You're still doing After all, nobody knows this case better than 6 So while we pause to have MCDO explore their ability 7 to create dysfunction in the commission by their conduct, you 8 should maintain the course that you're doing right now and 9 make the appropriate inquiries of both the defense and the 10 government and the prosecution pointedly and directly, and we 11 will respond to them, sir. 12 MJ [Col SPATH]: Just a couple points. Just for the 13 withdrawal in this case, I just want to be clear that I have 14 made more than one factual finding: 15 basis for withdrawal in this case, but that there was no 16 intrusion into attorney-client conversations in this case. 17 That's not a conversation on any other case pending down here. 18 I have no idea. 19 Not only was there not a I don't care, frankly. In this case, having access to everything, classified 20 and unclassified, I've made a finding that there's no 21 intrusion. 22 can't help, right? 23 believe findings of fact from a court and you think I'm part Now, fake news. If you don't want to listen, I I mean, I can only say it. If you don't UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 159 of Total) 11558 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 94 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 of the -- part of the effort, well, I can't fix that. 2 I've made those findings. 3 But They're clear. So I think my question -- yes, there are some 4 mechanisms for me. 5 impartial and neutral and objective behavior. 6 clearly, if -- you've seen me withhold moving into contempt 7 proceedings with the civilians, DoD, and the learned counsel. 8 And I think and it's obvious why I am doing that, because that 9 will cause a conflict likely with their client and a conflict But again, I'm trying to maintain my own And if I -- 10 between -- a perceived conflict between the bench and those 11 counsel, and that can lead to recusal. 12 There's federal case law about judges who engage in 13 contempt proceedings, about lawyers appearing in front of them 14 in the middle of the trial, even if there's not the actual, 15 right, lack of fairness from the judge, the public may 16 perceive, because it's adversarial. 17 that's why I'm really trying to walk slowly through the 18 process. 19 your side to be taking whatever actions you believe are 20 appropriate to make this move. 21 And so you're right, But it's also why there's some responsibility on Because I agree, slow, steady, working through this 22 process makes sense. 23 family member or an alleged victim, or, frankly, the accused, But I know that if I am the public or a UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 160 of Total) 11559 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 95 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 we've had slow, steady progress for a long time. 2 MATC [COL WELLS]: 3 MJ [Col SPATH]: Yes, sir. And so there's always going to be 4 appropriate progress, but we need to continue to make 5 progress, because that is important to the administration of 6 justice. 7 It is. And the only other point I make is for 8 Ms. Yaroshefsky, I haven't finished some findings of fact I'm 9 going to make, but she did testify that even if the facts were 10 different, her opinions, frankly, were her opinions and she 11 may not have changed it, for what it's worth. 12 MATC [COL WELLS]: 13 MJ [Col SPATH]: 14 MATC [COL WELLS]: Yes, sir. It's interesting testimony. From the prosecution's perspective, we 15 believe we're still at the process and procedure to explore 16 good cause on the record for withdrawal, whether it's 17 mandatory or voluntary. 18 from the commission is not really before you at this point. 19 MJ [Col SPATH]: 20 MATC [COL WELLS]: Contempt proceedings or disbarment Not yet. We -- we -- there could be explanations 21 from counsel as to their belief and their good faith belief. 22 Could be some misunderstanding from Ms. Eliades and 23 Ms. Spears. If they signed the agreement that was presented UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 161 of Total) 11560 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 96 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 to them by the chief defense counsel or others in there, then 2 they have a right to rely on that. 3 that they would read the rules and the regulations and the 4 preamble to the Model Rules of Ethical and Professional 5 Conduct, which say that you do comply with the commission's 6 rulings. 7 But you would also think It does ---- MJ [Col SPATH]: It's Rule 1.16(d) in both of their 8 jurisdictions, Indiana and Illinois, in mine, I think probably 9 in all of ours, frankly, but the ones that matter, the same 10 11 rule. MATC [COL WELLS]: Sir, and so the underlying matter about 12 their problem with a meeting place to exchange confidential 13 information here at Guantanamo and the chief defense counsel's 14 letter that they seem to rely on, you know, the answer to that 15 with Ms. Yaroshefsky is, did not know that they had requested 16 for another location, said that it exhausted. 17 But the answer to that would be: Your Honor, we 18 cannot meet at the location that the Joint Task Force has 19 provided us. 20 in that environment. 21 otherwise. 22 23 We cannot exchange information with our client We need your assistance to help And you have authority, which could include to the government: I am not going forward. We are abating these UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 162 of Total) 11561 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 97 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 proceedings until that is fixed, which could -- is an option 2 for you. 3 that circumstance at this point. 4 I'm not suggesting that that would be appropriate in I do believe that the location for attorney-client 5 meetings has been changed in JTF, and the commander has 6 designated a new location, which I believe that Lieutenant 7 Piette and his client have used and met. 8 the option at AV-34, so there's another location. 9 underlying problem seems to have been resolved. 10 MJ [Col SPATH]: It's in addition to So that If there was -- well, let me make sure, 11 because my understanding is the underlying problem was more of 12 a perception of concern. 13 intrusions into attorney-client meetings that have occurred, 14 I'm confident, as officers of the court, you'd be 15 communicating that to me. 16 MATC [COL WELLS]: 17 MJ [Col SPATH]: 18 MATC [COL WELLS]: If you all have any evidence of Sir, absolutely. Okay. My comments are as to the problem as 19 the defense has articulated in their latest filing from 20 Ms. Eliades and Spears, it was their perception of ---- 21 MJ [Col SPATH]: I just want to make sure we're clear. 22 know you all know your obligations, like the defense 23 community. If you all are aware ---UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 163 of Total) 11562 I USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 98 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MATC [COL WELLS]: 2 MJ [Col SPATH]: Yes, sir. ---- of intrusions into attorney-client 3 matters, and especially any intrusions you are aware of or 4 received, you would let me know. 5 6 MATC [COL WELLS]: The -- we need the counsel here to converse with you and discuss all issues. 7 Sir, that's all we have. 8 MJ [Col SPATH]: 9 MATC [COL WELLS]: 10 Sir, absolutely. MJ [Col SPATH]: All right. Thank you. Thank you. Lieutenant Piette, I've just got a couple 11 questions, if you don't mind. 12 training. 13 take the time to understand the proceedings to chuckle and 14 think that's funny. Mine has to do with just I know self-help leads, again, people who don't I don't think it's funny. 15 Self-help, of course, in the case law, as opposed to 16 just some whim where I've made up the words, has to do with a 17 lawyer who is in an untenable position, whether they like it 18 or not, working to take care of the issues at hand. 19 again, the public -- I suggest it all the time, I take the 20 time to actually read the cases that are relevant before I 21 comment on them, but that won't happen. 22 23 And So have you made any efforts to go to training? DDC [LT PIETTE]: Yes, Your Honor. As you know, I have an UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 164 of Total) 11563 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 99 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ethical obligation to do that, and it's just a moral 2 obligation as well, so yes. 3 before the next hearings, to have a motion regarding that, 4 since some of the trainings conflict with some of our 5 scheduled times, absolutely. 6 MJ [Col SPATH]: This court can expect, probably And that's what I was going to recommend 7 to you. 8 recognize you don't agree with it, but you seem to 9 recognize -- agree or not, we seem to be moving forward. 10 I am amenable, as you continue to get ready -- I So if there are courses -- so I went out and looked. 11 I know there's the Fundamentals of Federal Capital Defense 12 Practice in Atlanta April 30th to May 2nd. 13 Voir Dire Training in Boulder in May. 14 of them. National Capital So there's a whole host 15 So what I offer to you is -- you might not agree with 16 the comment, but if MCDO is just not going to resource you and 17 leave you to work with your mitigation specialist and your 18 paralegal and nobody else, or whatever other experts you have, 19 I'm amenable to taking off some time for training. 20 you'll let us know what courses and things those would be. 21 So I know Without -- without telling me any conversations -- I 22 know you know that -- have you reached out to Mr. Kammen or 23 Ms. Eliades to receive assistance from them? And I pick UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 165 of Total) 11564 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 100 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Ms. Eliades particularly because she appears to be capitally 2 qualified. 3 Ms. Eliades particularly to receive assistance in this case 4 turnover to you? 5 6 7 So have you reached out to Mr. Kammen or DDC [LT PIETTE]: Yes, Your Honor, they've been available for turnover. MJ [Col SPATH]: Okay. And I'm not going to ask. 8 suggest communicating with MCDO. 9 seem to have a lot of lawyers. 10 Maybe you are. I would But they I know al Hadi has quite a few who have managed to come down here on island. 11 So if you want more help, even outside the courtroom, 12 the resources exist, and that organization has the resourcing 13 requirement for you. 14 DDC [LT PIETTE]: So just -- I would take advantage of it. Yes, Your Honor. And I can speak to 15 that briefly, because it seems a lot of what's on the record 16 about resourcing and how we use it on the al Nashiri defense 17 team is just a lot of speculation. 18 As Colonel Aaron said, he's made resources available, 19 and resources are available, so -- and we are utilizing those 20 resources; however, there's a difference between using even 21 other counsel as resources and having them detailed. 22 and frankly, because of the way things are right now, 23 essentially I am acting or de facto team lead, so nobody gets UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 166 of Total) 11565 The -- USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 101 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 detailed or undetailed without kind of my say-so right now. 2 And the response of undetailing the attorneys, to 3 your order, while it's been portrayed as kind of a strategic 4 decision because it -- to some people, I guess think it maybe 5 looks better to have me sitting here alone as some sort of 6 strategy, when, in fact, it might look better to have four 7 military attorneys in the uniforms of three different 8 services, all of them standing behind the position that we 9 cannot take a position until we have learned counsel. 10 If anything, that would look better. 11 So the -- this isn't a strategic decision. I think 12 no attorney, no lawyer would trade the presumption of 13 innocence for the standard of review in post-conviction for 14 nothing more than the appearance of unfairness. 15 absurd. 16 rather than getting into sort of a sideshow issue about 17 whether or not you can order them to appear in court, it was 18 easier to just undetail them and avoid that. 19 That's So the response of undetailing those attorneys was, But we still do have the resources, and no attorneys 20 who are not capitally qualified are going to be detailed until 21 we have somebody actually on the case, not just on turnover, 22 but actually on the case who can advise and assist 23 Mr. al Nashiri, as is statutorily required from a learned UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 167 of Total) 11566 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 102 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 counsel perspective. MJ [Col SPATH]: Again, I've ruled on that. And I've 3 ruled -- first, there are jurisdictions that disagree with 4 you, you know that. 5 DDC [LT PIETTE]: 6 MJ [Col SPATH]: Uh-huh. Flat out. There are jurisdictions that 7 frankly do not buy into this ABA requirement -- a policy 8 group -- this ABA requirement -- and it's not even a 9 requirement, a guideline of capitally qualified counsel. 10 There are jurisdictions who believe that is not helpful for a 11 variety of reasons, many of them political, frankly, and you 12 know that. 13 Here I have told you I don't read the statute the way 14 you do. 15 importantly, I've ruled on it. 16 in the face of a ruling that has yet to have any success by 17 any appellate court telling me I've read it wrong or I've 18 implemented it wrong. 19 I read it the way it's written. But most So you're making your decision And what I have said to you is we're going forward, 20 and we're going forward right now with evidentiary matters 21 that any trial lawyer understands because it's real evidence. 22 At some point that's going to change, as you can tell by my 23 scheduling order. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 168 of Total) 11567 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 103 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 And so in the face of that, you continue to opt to 2 hang your hat on capitally qualified learned counsel are 3 required; and I've told you they're not. 4 yes, it appears strategic, because I've already ruled on it. 5 If you disagree, get some help and go get a stay. 6 help and get a writ filed. 7 judge to step in. 8 9 And so that's why, Get some Get some help and get an appellate So far those efforts seem to have met with silence -seem to have been met with silence, and that's why I believe 10 your decision is, one, strategic -- and again, that's a 11 finding, and I'm going to continue to make it; and two, it's 12 in the face of a ruling adverse to you. 13 you don't want more assistance in the courtroom, that -- and 14 you believe that's your decision as lead counsel, okay. 15 All right. 16 enough. 17 to get to that next. 18 So if you don't -- if Well, we've certainly talked about this We've gone an hour without a witness, so we're going Trial Counsel, let me just ask government one other 19 thing. 20 extent possible, of the issue surrounding this alleged 21 intrusion. 22 the appropriate authorities? 23 We had to deal with the declassification, to the Are we working to declassify this information with MATC [COL WELLS]: Your Honor, we are. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 169 of Total) 11568 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 104 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: 2 MATC [COL WELLS]: Okay. We're in discussions with them. I 3 would say that this depends on the specific facts and that you 4 would find -- we would like an opportunity at the appropriate 5 stage to make suggested findings of fact to the commission. 6 I would, as I stand here at the podium, suggest that 7 perhaps the classified information that's been alluded to is a 8 red herring because there is no intrusion. 9 reviewed everything that affects this accused in the location You found it. 10 that the command had designated for him to have 11 attorney-client meetings. 12 To the extent that the defense objects to that, the 13 command has responded and provided them a new location that 14 may be to their liking. 15 You MJ [Col SPATH]: No, I understand. But again, part of 16 this is in this spirit of full disclosure, right, the openness 17 of the process. 18 government has a duty anyway, right, to the extent possible, 19 declassify information. 20 21 22 23 My hope is, again, to the -- first off, the MATC [COL WELLS]: That can be used at trial or the commission. MJ [Col SPATH]: Here I'm looking in relation to this issue ---UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 170 of Total) 11569 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 105 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MATC [COL WELLS]: 2 MJ [Col SPATH]: 3 MATC [COL WELLS]: 4 MJ [Col SPATH]: 5 MATC [COL WELLS]: Yes, sir. ---- for the public, more is better ---Sir ------- on this specific issue. Understood. As you know, the chief 6 matter that arose related to another detainee and another 7 location that did not involve the command designation, and it 8 was nested in the AE 369 series with Mr. al Darbi. 9 prosecution's view is that this issue was raised in that And so the 10 series by the defense to avoid the cross-examination of 11 Mr. al Darbi and have to confront him while he is still 12 available and he isn't serving the rest of his sentence with 13 the Kingdom of Saudi Arabia. 14 15 So he is available for that purpose ---MJ [Col SPATH]: You've already -- you already got to my 16 last note that I had to ask: 17 available for cross-examination? 18 MATC [COL WELLS]: 19 MJ [Col SPATH]: Is Mr. al Darbi still here and Yes, sir. Lieutenant Piette, if you decide you want 20 to engage in any cross-examination this week, just need to let 21 us know. 22 DDC [LT PIETTE]: 23 MATC [COL WELLS]: Understood, Your Honor. Sir, nothing further. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 171 of Total) 11570 USCA Case #18-1279 [T (Page 172 of Total) Document #1754023 Filed: 10/04/2018 Page 106 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 107 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 representation of their client. 2 the representation of their client that then probably lead to 3 good cause and conflict. 4 And it causes problems with As adverse things happen when people are arrested 5 typically, or apprehended, or transported to testify, adverse 6 things happen to your security clearance, adverse things 7 should happen to your employment. 8 we're trying to maintain a relationship. 9 Those aren't helpful if But, on the other hand, if the intent is never to 10 help and never to come back, well, then, the answer is that 11 that's not one of the concerns, right? 12 thing for the commission. 13 MATC [COL WELLS]: 14 MJ [Col SPATH]: It's doing the right So we'll talk through it. Sir? More soon. We've got witnesses, we're 15 going to deal with those, and then we'll have some more 16 conversation about this today. 17 MATC [COL WELLS]: Yes, sir. And just to depart on this, 18 we will continue to pursue the supervisory chain. 19 you had the inclination to request Mr. Koffsky ---- 20 MJ [Col SPATH]: At one time More than inclination, that I want to 21 hear from him. 22 want to go through this process of send me your questions. 23 Well, we don't really want to send you questions; that's not He, too, doesn't want to just show up. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 173 of Total) 11718 We USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 108 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 how it works. 2 do this. 3 There are lots of reasons I shouldn't have to Well, okay. This behavior by the civilians makes his testimony 4 even more relevant than it was before, when I already thought 5 it was relevant. 6 next? 7 truly on an island with nobody willing to come speak to this, 8 deal with it, and assist? And if there's intransigence there, who's And who's going to show up? 9 Or are we just down here So you can tell right now I'm a little frustrated. 10 And so, because judges are human, I'm going to take a deep 11 breath, listen to the testimony that we had planned for today, 12 ponder kind of what the options are as we move forward, and 13 have some discussions about that. 14 rulings from the bench on this issue today, because I want to 15 reflect, and reflect in the right state of mind. 16 helpful all the time. 17 18 19 20 21 There will not be any I find that So why don't we get to those witnesses and we'll move forward. Trial Counsel. TC [MR. MILLER]: Thank you, Your Honor. The government calls Jeff Miller. MJ [Col SPATH]: And while we await Mr. Miller -- 22 Mr. Miller, let me ask you a question. 23 misunderstood you or -- were you saying we weren't going to be Yesterday, maybe I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 174 of Total) 11719 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 109 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 finished by the end of Friday, or you were saying we're 2 probably not going to need Friday for witnesses? 3 TC [MR. MILLER]: 4 MJ [Col SPATH]: Probably not going to need Friday. Okay. That helps just with some options 5 on Friday with some of these other issues that are kind of 6 swirling around us. 7 but got it. 8 9 TC [MR. MILLER]: I misunderstood you or we weren't clear, Sir, if you would step forward to the jury box, remain standing. Would you raise your right hand, 10 sir, please. 11 JEFFREY R. MILLER, civilian, was called as a witness for the 12 prosecution, was sworn, and testified as follows: 13 14 15 16 DIRECT EXAMINATION Questions by the Trial Counsel [MR. MILLER]: Q. Please be seated and, if you would, please, state your name for the record. 17 A. Jeffrey R. Miller. 18 Q. And I believe you have testified at least two times 19 here before the commission; is that correct? 20 A. Yes, sir. 21 Q. And you are a special agent with the Federal Bureau 22 23 of Investigation? A. I am. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 175 of Total) 11720 USCA Case #18-1279 [T (Page 176 of Total) Document #1754023 Filed: 10/04/2018 Page 110 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 111 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: Regarding materiality, that's for me, 2 frankly. 3 for me to determine if good cause exists, I have to hear from 4 them, because they've provided little. 5 statement from Yaroshefsky addressed to Mr. Kammen; doesn't 6 even talk about them. 7 I've said they've not been excused. And in order What I have is a I have a statement from General Baker, pretty minimal 8 in facts, as to why he excused three counsel. 9 General Baker is to be believed, you could excuse the defense And frankly, if 10 counsel who's sitting here by his same analysis, and he's 11 still sitting here, which tends to undermine that. 12 course they're material. 13 So of So I can understand, is Lieutenant Piette different 14 somehow? 15 strategic and much more visible that we've under-resourced the 16 defense team. 17 me like so far we've complied. 18 Or we've just left him here? Making it much more So of course they're material. So it looks to The witness clearly refused, through counsel, because 19 I saw the e-mail. 20 showing. 21 attorney. 22 e-mail that I was shown said I lack jurisdiction; I don't. 23 And that the -- having to appear at the Mark Center by VTC for And the Attorney Fox said they're not And I assume he can speak for them since he's their And so I can't see a valid excuse. Again, the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 177 of Total) 11909 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 112 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 DoD civilians employed in D.C. would be oppressive, with no 2 evidence to the contrary. 3 So what I would like is some homework overnight. 4 Would you at least craft the two writs. 5 issue warrants of attachment -- I plan to do it tomorrow -- to 6 have them brought sometime on Thursday or Friday. 7 Because I'm going to Also -- again, I don't know yet. I really do mean 8 I'm going to pause overnight to take some time to work through 9 the different options and to make sure that I am proceeding in 10 a manner that is judicious and fair, and not based on any 11 frustration, because sometimes it is easy to feel some 12 frustration, and I find it's best to take a pause. 13 But inquire into Mr. Koffsky's availability this 14 week. 15 to him. 16 VTC capability in the Pentagon that satisfies the crowd here, 17 he doesn't even have to go to the Mark Center. 18 confident there is. 19 windows of availability? 20 him? We've discussed it with him. We've given some warning For him -- if you all can work it out that there's But what we need are: And I'm pretty What are his Or do we also need to also subpoena In which case we'll go through the process. 21 But first I need to know is -- I know he wants 22 interrogatories. 23 That's not going to happen. I know he wants us to send the questions. I want to know what he's doing to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 178 of Total) 11910 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 113 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 assist in getting these witnesses here; what he's doing to 2 assist in resourcing this team; does he know what's going on; 3 what does he believe his role is; and what's he doing about 4 the clear evidence of misconduct in all of these cases? 5 That's -- I mean, I think we all know what I want to talk to 6 him about. 7 engaging with legal counsel, for them to help him in the areas 8 that I have questions about. 9 It should be easy, frankly, for -- if he's And as always, I take privilege seriously. If he's 10 concerned about privilege, just tell me in answer to -- just 11 pause before you answer the question and we'll work through 12 it. 13 is if I order his appearance, is he available any time 14 tomorrow or Thursday or Friday, or are we going to have to go 15 down this road of subpoenas? I'm not ordering him to appear yet. What I want to know 16 So if you could give me some updates on that 17 tomorrow, and again, if you guys could draft like you did last 18 time we went through this, I would sure appreciate drafts for 19 the warrants so we can issue the writs. 20 MATC [COL WELLS]: 21 MJ [Col SPATH]: 22 23 One moment, sir. Please. [Pause.] MATC [COL WELLS]: All right, sir. I just conferred with UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 179 of Total) 11911 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 114 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 co-counsel to make sure that I understood your intent and your 2 directions. 3 with the court and with the defense the necessary paperwork 4 that supports the questioning you just had of me of whether or 5 not the warrant was properly issued and all other instructions 6 and fees were tendered. 7 move forward. 8 9 And we also discussed to make sure that we filed MJ [Col SPATH]: We understand that, sir, and we will All right. The other -- because I'm certainly not communicating with any of these people. I want 10 to make sure that we have communicated clearly to their 11 attorneys and them, I denied their motion to quash. I said it 12 in here. I was 13 pretty clear. 14 I heard myself say it. I double checked. But separate from that I issued a scheduling order 15 telling them to be here after we had gone through one round of 16 briefing, which reasonably you can read that I denied their 17 motion to quash. 18 remember. 19 It's denied, and I rejected the second set of filings ---- But then I remember on Monday -- I didn't I read the record again. 20 MATC [COL WELLS]: 21 MJ [Col SPATH]: 22 briefing cycle. 23 attorney? I know I said on Monday. Yes, sir. ---- because I've already given them a So did you communicate that clearly to their And I hope you did, and do it again. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 180 of Total) 11912 USCA Case #18-1279 [T (Page 181 of Total) Document #1754023 Filed: 10/04/2018 Page 115 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 116 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 point. 2 everybody who has travel plans on Saturday, and I know that. 3 So no decisions. 4 through it. Sunday the weather looks better. 5 But that affects Just -- it came to me as I was working This next part, I want to talk through. I pulled up 6 my notes. 7 It's just -- it's a lack of clarity from people who talk about 8 this process, and I think it's important to be clear as we 9 work through these difficult decisions that are affecting this 10 It's some frustration over -- it's not frustration. commission. 11 Not that anyone cares about my reading habits, but I 12 do professional reading typically in the evening a couple days 13 a week. 14 Makes sense to me. And yes, I use CAAFlog. I don't read the comments 15 and I tend not to read the analysis; I don't need their help, 16 because some people suggest it has a bias. 17 appreciate about them is they tell me what cases have been 18 decided, what cases are of interest. 19 those links and go right to the case and I can read the case 20 law, right, from CAAF or from AFCCA, or from the Supreme 21 Court, and I can keep track of even cases that are affecting 22 us. But what I And then I can click on Seems like a reasonable one-stop shopping mechanism. 23 So I was a little surprised last night when I opened UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 182 of Total) 11924 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 117 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 it to find this case making their -- the top of the banner, 2 and noticed very quickly that it said that I had ordered, or 3 was going to order today, writs be issued against civilians to 4 be dragged to GTMO. 5 was a link to figure out where in the wide, wide world of 6 sports is that coming from. Imagine my surprise. Fortunately, there 7 And it's coming from a reporter who we brought down 8 here and we bring down here willingly, and you know, put up, 9 who got it wrong. I said very clearly yesterday I want draft 10 writs so I have options as I figure out what to do, and I 11 hadn't made a decision yet. 12 more clear. 13 I don't know if I could have been So I'll say it again, I said yesterday I haven't 14 decided yet to issue any writs. 15 not being brought to GTMO. 16 process knows that, right? 17 If they're issued, they're Anybody paying attention to this In the case of the two civilians, they're going to be 18 brought -- get this -- from where they work in D.C. or in the 19 D.C. area to another building in the D.C. area for a VTC. 20 figure that out you just have to read the rules, that's it, 21 and report correctly. 22 23 Again, you don't have to; I have no control. it's just always remarkable to me that words matter and UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 183 of Total) 11925 But To USCA Case #18-1279 [T (Page 184 of Total) Document #1754023 Filed: 10/04/2018 Page 118 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 119 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 replete with me stating that they have abandoned their client 2 and they have refused orders, now refused a subpoena, refused 3 to resource, undetailed -- Mr. Koffsky didn't know the timing 4 of that, right? -- undetailed detailed defense counsel as soon 5 as I said they should make an appearance or would make an 6 appearance. 7 MATC [COL WELLS]: Sir, I would suggest this: 8 sure when he actually undetailed them. 9 pointed question to Colonel Aaron was asked. 10 MJ [Col SPATH]: It was asked. I'm not I'm not sure the He was very -- he was very 11 up front when he talked to me last time. 12 you undetail them after I gave you -- or that order came out?" 13 And he said, "Yes." 14 MATC [COL WELLS]: 15 MJ [Col SPATH]: 16 MATC [COL WELLS]: I asked him, "Did I missed that point, but you ---He was very clear. Sir, I would suggest that the 17 commission has important power still to implement, 18 fact-finding to do. 19 Mr. Koffsky, exhausted with Colonel Aaron, perhaps exhausted 20 with the two employees. 21 to writ of attachment. 22 cautiously consider those. 23 appropriate in this circumstance. It seems that it has been exhausted with There are other options that relate You said that you were going to I'm not suggesting that that's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 185 of Total) 12285 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 120 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: That's right. And I -- I thought I was 2 very clear, right? 3 about "I'm going to think about it overnight." Apparently there is a lot of confusion 4 MATC [COL WELLS]: 5 MJ [Col SPATH]: Correct, sir. And now that I've had a chance to listen 6 to audio, I actually know what I said, which is, of course, 7 what I think you all heard, "if I issue the subpoenas," but 8 can't listen to audio because we don't put the audio out 9 there. 10 But, most importantly, I'm going to think about it 11 overnight. 12 have every belief that they are enforceable. 13 no doubt you all can get the marshals, we can get the 14 civilians, we can make them travel all of 10 miles, right, in 15 this oppressive world to the Mark Center, testify, refuse to 16 testify, do whatever it is they're going to do. 17 that. 18 does -- because of the adverse, right, responses to people who 19 have to be apprehended because they avoid showing up for 20 court. 21 the representation of this client. 22 23 And I am pausing on issuing those writs, because I I think there's We could do That guarantees a conflict with their client -- it It has adverse consequences to them. It relates to So if I'm them, of course, what do you do? around and go, well, there's good cause. I mean, there's good UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 186 of Total) 12286 You turn USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 121 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 cause. 2 relationship with our client. 3 issuing those writs. 4 them? 5 attorney-client relationship with a person nobody's bothered 6 to get any input from, except for me ---- If nothing else, this has become a different kind of Yes. Because can I blow it up and get rid of But is that the right answer when they have an 7 MATC [COL WELLS]: 8 MJ [Col SPATH]: 9 Yes, sir. ---- that has been presented to me about what does he want in all this. 10 And that's why I have paused on Does he want Mr. Kammen back? And this -- this belief that he doesn't know what the 11 issue is -- he was in here for Ms. Yaroshefsky's testimony. 12 He's been in here for multiple discussions, when he chooses to 13 come, about what the underlying issue is. 14 do with intrusions into attorney-client discussions. 15 that. 16 and we all know that. 17 18 19 He knows it has to So this belief that he hasn't been informed is wrong, MATC [COL WELLS]: He's in the hands of his attorneys, sir. MJ [Col SPATH]: And where is his input? Does he want 20 Ms. Eliades released? 21 heard his answers, I can't make them come here. 22 self-evident. 23 He knows MATC [COL WELLS]: Does he want Ms. Spears released? Well, that's I think important findings would be UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 187 of Total) You 12287 USCA Case #18-1279 [T (Page 188 of Total) Document #1754023 Filed: 10/04/2018 Page 122 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 123 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 The only reasonable explanation is Lieutenant Piette 2 said he remained on the case in order to continue to represent 3 his client and that his client had some representation. 4 made a choice according to what he has said in here. 5 He General Baker also left every other defense team 6 across the commissions intact, which indicates to me none of 7 them have asked for a release, based on all of this 8 information. 9 General Baker, Mr. Kammen, and the two DoD learned counsel's What this shows me is it's more information that 10 actions are both arbitrary and purposeful. 11 at stopping or mortally harming these proceedings. 12 They are directed This commission continues to find, as supported by 13 significant evidence, this course of conduct shows a 14 strategic, concerted effort by the Military Commissions 15 Defense Office, which is different than Lieutenant Piette, a 16 strategic course of conduct by the Military Commissions 17 Defense Office to undermine the commissions process and 18 attempt to halt the only commissions case entering the 19 evidence pretrial admissions stage -- capital commissions case 20 entering the pretrial admissions stage. 21 All of this has occurred, also, as the commission was 22 approaching the deposition cross-examination for Mr. al Darbi 23 who, according to the defense, is the only eyewitness and most UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 189 of Total) 12343 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 124 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 critical government witness, after months of preparation time 2 provided at defense request to prepare that cross-examination, 3 and delays at defense request to prepare that 4 cross-examination. 5 This decision was also made very soon after the 6 commission issued what some have called an aggressive 2018 7 calendar year schedule, with significant time to be spent here 8 at Guantanamo Bay, to which learned counsel immediately 9 expressed tremendous reservation, despite an employment 10 contract that indicates he has to comply by those schedules. 11 After multiple refusals to appear by learned counsel 12 and DoD civilian counsel, the commission ordered all other 13 detailed counsel who had yet to make an appearance to do so at 14 the next scheduled commission proceedings. 15 been January 2018. 16 chief defense counsel for this case released all those counsel 17 from representing the accused. 18 did mistakenly identify how many counsel were released; 19 Lieutenant Piette properly pointed out actually three were 20 released, not the two military counsel, leaving the accused 21 with a single detailed defense counsel. 22 least experienced. 23 detailed, compare them to Lieutenant Piette, as much as I That would have Immediately after that order the acting Of note, when he testified, he Of note, it's the If you go look at the three who were UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 190 of Total) 12344 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 125 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 appreciate Lieutenant Piette and have empathy, those three 2 have more experience, and MCDO released them rather than have 3 them make an appearance. 4 As we learned this week, the detailed defense counsel 5 was comfortable in taking part in that decision regarding the 6 release of additional counsel and determining this was the 7 right course of action in a capital case, although he will not 8 take any other action in this capital case, for the most part. 9 His explanation was better one attorney saying nothing in 10 court than more than one just doing the same. 11 ignores is each defense counsel's independent duty to advocate 12 and represent for their client zealously. 13 But what that What it does is it shows a coordinated plan on behalf 14 of the defense community to not defend their client in court 15 when given the opportunity to do so. 16 acknowledge a ruling by the commission that at the time we're 17 going to move forward with pretrial admission of real 18 evidence. It shows a refusal to 19 As I said multiple times, I believe the way the 20 statute is written and it is to be applied here, defense 21 counsel -- or the accused, rather, is entitled to learned 22 counsel to the greatest extent practicable, and that learned 23 counsel is not practicable in this proceeding at this time. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 191 of Total) 12345 USCA Case #18-1279 [T (Page 192 of Total) Document #1754023 Filed: 10/04/2018 Page 126 of 141 ] USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 127 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col SPATH]: All right. I do find the absence is 2 voluntary and knowing. 3 signed, so there's certainly an acknowledgment of the rights. 4 And there's nothing written on this one, unlike the one we saw 5 on Monday, which was a little different for the first time, 6 about the mode of transportation. 7 There's the form that is read and then I do believe the mode of transportation likely 8 factors into a voluntary, knowing decision to absent yourself 9 from the commissions. I would encourage, to the extent 10 possible, after all of this, to file pleadings to deal with 11 that. 12 what to do -- to do with this. 13 That's the right road ahead as we try to figure out I don't have a lot to say. One is in relation to 14 this alleged intrusion issue. 15 in the morning, that after I had made the best effort I could 16 to shed some sunlight on what is classified, both sides 17 approached my CISO to see if he would assist, because it was 18 my CISO who went to work with the OCAs to get things, to the 19 extent possible, reviewed, so I could read them to the public, 20 because the public has an interest in this. 21 I mentioned yesterday that -- That was my goal. And as I said yesterday when both sides approached my 22 CISO and said can you help, of course he called me and said, 23 "Is this something I can do?" And I said, "Please, to the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 193 of Total) 12363 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 128 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 extent you can, assist." 2 In the theme I have said, I think, for four years, no 3 good deed goes unpunished. 4 to see if he could get declassified. 5 to it last night and said, "That's not the full story. 6 Lieutenant Piette needs to submit more." 7 I'm out. The defense gave him some things The government objected We're out of the business. My CISO is not 8 helping. 9 to have to work through the government in the normal process So the defense counsel, unfortunately, you're going 10 of declassification, and you all can get things declassified. 11 I've asked you for five months, I'm asking you again, to the 12 extent possible, declassify matters surrounding the alleged 13 intrusion. 14 I keep getting asked what. I would declassify all of 15 it. 16 But we're out of the business. 17 government had to do with we're objecting to the process. 18 There's no process. 19 favor. 20 Good luck. That's what. 21 I keep saying it. The e-mail back from the It was a favor. My CISO is not doing it. So I'll say it again. And so now it's not a So work through the process. Because in five months nothing got declassified. And here we are. Over the last five months -- yes, 22 my frustration with the defense has been apparent. 23 yesterday and I'll continue to say it. I believe it's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 194 of Total) 12364 I said it USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 129 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 demonstrated lawlessness on their side; they don't follow 2 orders; they don't follow direction; they don't obey 3 commission regulations, or rules, or subpoenas, as we saw. 4 And I keep getting asked for more and more findings. 5 I don't know what more findings to make. 6 conclude -- the record contains findings. 7 put it on paper. 8 can. 9 times, I've entered findings of fact. The record You don't have to We make this process as cumbersome as we I don't know why. I have said on the record, multiple They've been in 10 writing, they've been verbal, they've been communicated. 11 They're there. 12 They're there. I held a general officer in contempt. That should 13 have stood out. 14 not oblivious to Colonel Aaron's, frankly, contemptuous 15 behavior the first time he appeared before me when I asked him 16 to come up here; when he scoffed at my authority and said I 17 don't know what -- how you can make me. 18 theme over here, frankly. 19 another contempt proceeding if ultimately I have determined it 20 incorrectly. 21 am waiting and continue to wait. 22 23 And it's ongoing. And I said yesterday, I'm Well, that's the But I'm not going to waste time on That's why we have appellate courts. And so I Frankly, I've been -- I've been in courts for 26 years. I've been involved in courts-martial. I was very UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 195 of Total) 12365 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 130 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 lucky in the Air Force to be involved in courts throughout my 2 career, unlike so many advocates. 3 in to do that and they don't get to. 4 advocate show up in Class B's time after time. 5 oblivious; I know what that says. 6 have for the commission is obvious. 7 tie, no coat; I get it. 8 message from the defense for five months. 9 received. 10 I got it. I know a lot of them come I've never seen a judge I'm not What little respect you A short-sleeve shirt, no That's the message. That's been the And it's well I've heard you. But I'm not going to waste time. I'm not going to 11 get in the mud. 12 right, that judge got in the mud all about whether or not we 13 should shave the beard, and of course ended up having to 14 recuse himself. 15 dirty. I mentioned the Hassan case the other day, Because when you get in the mud, you get It doesn't work. 16 And I'm not saying I never have in my 26 years. I've 17 come close to it here occasionally, getting dragged into it, 18 into debates, or what I really said or what's going on. 19 easy to do because we're all human. 20 think that judges aren't human, too, but we are, and I know 21 that. 22 23 It's I know we all like to And I tell my staff all the time, we can't get in the mud. You have to, have to, have to stay above the fray and UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 196 of Total) 12366 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 131 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 try to navigate the rules. 2 was a sleepless night. 3 thought my options were yesterday. 4 last night. 5 rewrote what I was going to do. 6 maybe the treadmill would either calm me down -- which it has, 7 of course. 8 went back and looked again, and looked again. 9 Not about me. I'll tell you, it The -- I laid out kind of what I I thought about them again I thought about them overnight. I wrote and I went to the gym. Give me more -- more reflection. It did. I thought And I Yesterday's remark by Mr. Koffsky was incredibly 10 telling, wasn't it? 11 details are pretty straightforward. 12 that a witness who is the principal deputy to the general 13 counsel wears three or four hats, all acting or whatever, very 14 serious positions, said apparently that there's a bar rule I'm 15 unaware of, and that is you can disobey court orders if you 16 don't think they're ethical. "The devil is in the details." The I mean let's keep in mind 17 I went and looked last night. 18 New York ones, because I was surprised by that. 19 he was, too, because I asked him to give me the rule, and then 20 it became, well, it depends on the question and what the order 21 is. 22 pretty simple -- subpoenas, rightfully served, as the 23 government has indicated, on two DoD civilians. I went and reread the And clearly So then, of course, I gave him the hypothetical -- it's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 197 of Total) 12367 That USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 132 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 hypothetical doesn't seem very hard to me. 2 rightfully served on two DoD civilians that they ignored. 3 the answer was the devil's in the details. 4 tells you how infected the process is and how far it goes 5 within the Department of Defense that owns the process. 6 again, you all can have opinions about whether or not DoD 7 should own the process. 8 mean, I've got nothing there. 9 yesterday, right? 10 Subpoenas Remarkable. I've said it before, go vote. And Which And I But that's what he said A duty to violate orders, an ethical duty. So again, like I said, I went and read my bar rules. 11 I was shocked. 12 found in everybody's who is here, is the ethical duty to 13 zealously represent your client, and -- again, 1.16(d) seems 14 pretty standard. 15 it, and it's in every state that matters to this proceeding. 16 I haven't looked at all 50 states; looked at mine. 17 What I have found again in mine is what I have It's in the Model Rules. Law students know But even if good cause is shown -- it doesn't even 18 say to who, right? 19 orders you to continue, you will continue. 20 feel you have an ethical conflict, even if you've demonstrated 21 it, good cause shown, you've convinced somebody I have good 22 cause, your bar rules say too bad if you're ordered to keep 23 going. Even if good cause is shown, if a tribunal So even if you Got to keep going. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 198 of Total) 12368 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 133 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Because there's lots of reasons for that, right? 2 What if we're on the eve of trial? 3 seven years and 1.8 million dollars in your representation? 4 What if? 5 hypotheticals. What if? What if we've invested I mean, you can think of all the 6 What I think is happening is that Mr. Koffsky is 7 conflating military orders with orders from a tribunal or 8 military court. 9 easy to do because DoD owns this process. That's what I think is happening, and it's So it's -- you 10 could conflate those. 11 cool minds reflect on what my orders have been. I'm not 12 ordering the Third Reich to engage in genocide. This isn't My 13 Lai, or My Lai. 14 I don't think it's correct. You know what this is? But I hope Comply with subpoenas; comply 15 with your bar rules. 16 are responsible to ensure that people who work for you obey 17 the orders of the commission. 18 orders. 19 And as the chief defense counsel, you Those are the extent of my Not war crimes, people. It's just stunning where we have come. And if you do 20 conflate them, if you want to go out and look at military 21 orders -- just again, for the people here who are unfamiliar 22 with our process, you can defy a military order that you think 23 is illegal. Illegal, by the way. However, if you go look at UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 199 of Total) 12369 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 134 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Article 92 of the UCMJ, the discussion about it and then the 2 case law that follows, orders are presumed to be lawful. 3 violate them at your own risk, and commanders have broad 4 discretion in giving those orders. 5 You Because can you imagine what the Department of 6 Defense would look like if we just violated orders willy-nilly 7 as we went through the process? 8 next time we actually have an armed conflict that we are 9 fighting, which we are, by the way. It would be quite a sight the Imagine what it would be 10 like out there on the battlefield. 11 would be like here in the commissions. 12 Military Commission Defense Office and their representatives. 13 Because we've seen what it Frankly, by the Courts and tribunals require adherence to the law, we 14 know that. 15 General Baker issue unfolded, everybody in here knows the 16 right process, and people back there, if they think about it, 17 will know it right away. 18 They're different than military orders. As the I issue many orders in a court that people disagree 19 with. 20 either ask for a continuance so they can go file a writ, and 21 we see that with our special victims counsel, we see that from 22 defense counsel, and frankly even from the government 23 occasionally, if it's not an Article 62 kind of appeal, right? And so what people do in that circumstance is they UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 200 of Total) 12370 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 135 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 They ask, can we have time so we can go to a superior court 2 and file an emergency writ. 3 or no, and I've given different answers on different 4 occasions. 5 And then my answer to them is yes When my answer is no, remarkably, counsel show up the 6 next day and keep going forward. 7 doing? 8 trying to get help from that appellate court to see if that 9 court will stay the proceeding. Filing a writ. You know what they're also They're dual tracking, and they're off And that has happened to some 10 of the judges who work for me; the appellate court has stepped 11 in and stopped them. 12 go file your writ, I'll wait and see what they say. 13 interested," because I recognize the authority of appellate 14 courts and courts that are superior to me. 15 Or, of course, I pause and I say, "Sure, We all saw what happened here. I'm General Baker didn't 16 do that. 17 it. 18 do that. 19 superior court about the issue at hand, who excuses counsel, 20 and then what do you do in the face of excusing counsel with a 21 tribunal that orders continued representation and a clear 22 mandate in your bar rules, he would have lost. 23 if that's cynical or not; I think it's reality. He simply defied the order and said I'm not doing And I believe, as the commission, I know why he wouldn't Because if he went to an appellate court or a I don't know UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 201 of Total) 12371 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 136 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 I also think it's why the civilians, the two DoD 2 civilians have yet to file anything in federal court to stop 3 the writs, as Mr. Kammen did moments after I indicated I might 4 require his appearance at the Mark Center. 5 is because they don't mind being taken to the Mark Center to 6 testify. 7 demonstrated by MCDO, and it will continue to undermine a 8 process they signed up to work within. 9 within. And I believe that It will empower the behavior that has been Not work for, work They all signed up to work within the rules that were 10 given, and they knew what the rules were when they signed up 11 for it, and they continue to ignore them. 12 And again, alls I've done is order people to follow 13 the Regulations for the Military Commission, the Manual, the 14 statute, their bar rules, and comply with properly issued 15 subpoenas. 16 These last few months, I think we can all say, have 17 demonstrated significant flaws within the commission process, 18 particularly within the defense organization, and it 19 demonstrates an organization intent on stopping the system, 20 not working within the system that they signed up to work 21 within. 22 look at their rules, if you look at the standards, if you look 23 at the Regulations for Trial by Military Commission, they all If you look at their employment contracts, if you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 202 of Total) 12372 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 137 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 agree they will follow them. 2 of course. 3 the system. 4 repeatedly, and publicly with little response, encouraging 5 them to continue to demonstrate it repeatedly, publicly, and 6 constantly. 7 And what they are doing is not, What they're doing is engaging in revolution to And they've demonstrated it completely, I've got to tell you, after 26 years of service, it's 8 shaken me more than I would have expected. 9 years trying to adhere to the law. I've spent 26 I'm sure I've made 10 mistakes. 11 law, whether I agree or disagree with it, absent the most 12 extreme of circumstances, is required of the participants. 13 It's what let me be both a prosecutor and a defense counsel. 14 Because it's not that I agree with my clients, support my 15 clients, agree with their life choices -- and this is clients 16 on both sides, because we have clients on both sides -- it is 17 because my ethical responsibilities are to my client, and it 18 is what has allowed me to do that. 19 I've spent 26 years believing that adherence to the And so when I've disagreed with a judge, I have 20 marched on, assessing all of the responses I might have, head 21 for the appellate court, attempt to change the system with 22 elected officials outside of the, like, everyday process, of 23 course, and comply with the order. Frankly, it's what called UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 203 of Total) 12373 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 138 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 me to criminal law all those years ago. 2 said, to be both a defense counsel and a prosecutor, and 3 follow the calling to be a judge. 4 our system for hundreds of years, and it demonstrates why our 5 system is better. 6 It allowed me, as I It's been the strength of Probably rose-colored glasses. 7 last night, too. 8 as rose-colored today. 9 might be time for me to retire, frankly. Thought about that I took a moment to clean them; they're not And it's been pretty shaken, and it That decision I'll 10 be making over the next week or two. 11 here, because I've never seen anything like it. 12 ponder it as we go forward. 13 I think it might be I'll just But, as for going forward, I talked yesterday about 14 all the different options I have, and I weighed through them. 15 We need action from somebody other than me, and we're not 16 getting it. 17 with the CISO shows it. 18 wheels and go nowhere until somebody who owns the process 19 looks in and does something. 20 This morning's debacle, frankly, about working We're going to continue to spin our I've been thinking about how to resolve the apparent 21 standstill while getting Mr. al Nashiri adequately resourced 22 defense, which he had, consistent with what you see in the 23 Military Commissions Act of 2009. I've reviewed all the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 204 of Total) 12374 USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 139 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 pleadings again regarding Brigadier General Baker, Colonel 2 Aaron, the prosecution's efforts, the testimony of 3 Mr. Koffsky. 4 out where we are and what we could do to fix this. 5 I mean, I went through it all again to figure Yesterday I listed kind of questions that we need 6 answered, frankly, from a court superior to me. 7 would have hoped we had started that process. 8 and I haven't seen it, but I don't think so. 9 bit of it in General Baker's filings in federal court, but not 10 much. And again, I Maybe we have There's a little That's mostly focused on the contempt issue. 11 If General Baker's reading the statute correctly and 12 the Manual correctly, he can excuse counsel at any time and 13 we'll be right back here next time. 14 is. Again, I don't believe he Doesn't matter. 15 We need somebody to tell us, is that really what that 16 says, despite, obviously, every other court system in America 17 thinking differently, despite the clear intent of when people 18 make an appearance, despite the clear difference of learned 19 counsel. 20 appellate court or court above me. 21 Maybe I'm wrong, but nobody's asked anybody in any And then, of course, the other issue is learned 22 counsel. 23 the time? Is Lieutenant Piette right, that he gets them all Because that's what he thinks, right? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 205 of Total) 12375 He's said USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 140 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 that over and over. 2 learned counsel, even though I've ruled you don't get learned 3 counsel. Any questions? Nope, can't do it without Nope. 4 Because again, the efficient administration of 5 justice means we do this one time, not twice, if we can help 6 it; and that everybody who has an interest doesn't travel down 7 here for the next 25 years doing this. 8 keep doing. 9 Because that's what we So hopefully somebody is going to take action. 10 abating these proceedings indefinitely. 11 now, the reason I'm not dismissing -- I debated it for 12 hours -- I am not rewarding the defense for their clear 13 misbehavior and misconduct. 14 But I am abating these procedures -- these proceedings 15 indefinitely until a superior court orders me to resume. 16 I am I will tell you right That would be the wrong answer. And whatever that looks like, either myself or my 17 successor will pick it up and start going. 18 superior court tells me next week, Spath, you abused your 19 discretion, get to work, I'll get to work, or whoever takes my 20 place. 21 guidance. 22 Colonel Spath got the law right, you don't get learned counsel 23 if it's not practicable, and it's not practicable. If it is -- the Hopefully the appellate court will give us some Maybe they'll say Lieutenant Piette, you're stuck. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 206 of Total) 12376 Get to USCA Case #18-1279 Document #1754023 Filed: 10/04/2018 Page 141 of 141 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 work. 2 questions from now until we finish the trial. And then Lieutenant Piette can sit there and not ask 3 But that's where we're at. We're done until a 4 superior court tells me to keep going. 5 can be the Washington -- or the District in D.C. 6 superior to me. 7 We need somebody to look at this process. 8 give us direction. 9 that's where we're at. 10 It can be CMCR. But that's where we're at. It They're all We need action. We need somebody to I would suggest it sooner than later, but The March hearing, obviously, isn't going to happen, 11 I don't think. 12 quick guidance from CMCR, and then we'll be here in March. 13 Again, maybe I'm wrong. As I said, I follow the law. Maybe we'll have I follow orders. I 14 don't just disobey them at will, scoff at the process; but we 15 do have a situation where people are. 16 it, and we can't fix it without somebody getting involved. 17 I have great empathy to everybody involved; I really 18 do. 19 work, a lot of time, a lot of effort. I mean that across the board, everybody. 20 21 It's a lot of It is -- it's not easy. So that's what I meant when I said filings might not be particularly helpful for a little while, Lieutenant Piette. 22 23 They've demonstrated We are in abatement. We're out. Thank you. in recess. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT (Page 207 of Total) 12377 We're