Thread by @carolrosenberg

Good morning from Camp Justice. The USS Cole case pretrial hearing resumes today after a 22-month hiatus. In the interim, a civilian court vacated years of the last military judge's rulings, and a new judge upended the security regime of the first judge.
nytimes.com/2019/04/16/us/…

Capital defendant Abd al Rahim al Nashiri, 54, was captured in 2002, little over two years after suicide bombers recruited by Al Qaeda blew up an explosives- laden skiff alongside the destroyer in Aden Harbor. Seventeen US sailors were killed.
nytimes.com/2000/10/13/wor…

Also at Gitmo for this hearing:

Retired Navy senior chief Joe Pelly, who was aboard Cole the day it was attacked, and the dads of two fallen shipmates.
--Jesse Nieto, whose son, Engineman 2nd Class Marc Nieto, was 24.
--Tom Wibberley, whose son, Seaman Craig Wibberley, was 19.

Nashiri is accused of plotting the attacks. The CIA kept him in black site isolation for years and acknowledges he was one of three men it waterboarded. He was first charged in 2011 and returns to court for the first time since February 2018.
nytimes.com/2017/03/17/us/…

Since then, the Navy SEAL turned lawyer who stood by him was denied a promotion.
nytimes.com/2019/08/22/us/…

I'm heading over to the court.
We expect the judge to ask Nashiri if he accepts his new learned counsel. He is Anthony Natale, a former Florida federal public defender.
Also, lawyers may question the new judge, Army Col. Lanny Acosta Jr., for potential bias.
I'll update later.

Good afternoon from an early, and brief lunch recess in the Nashiri hearing. It goes back into session at noon.

A recap:
Both prosecution and defense questioned the new Army judge, Colonel Acosta, and did not object to him presiding. The judge said he hasn't applied to be an immigration judge or any other DOJ position. He's been a military judge since 2015 and is stationed at Fort Hood.

His capital experience is limited but included this: He was supervising prosecutor on two cases that were sworn capital at Fort Lewis, Washington, but reduced for a plea.
One involved a soldier who slaughtered 16 Afghan civilians in 2012. nytimes.com/2013/08/24/us/…

Here is the new judge's biography, as presented in a war court filing.
Unclear is how much longer he'll be on the bench.
bit.ly/LannyAcosta

Earlier, in an extended colloquy with the defendant, the judge got Mr. Nashiri to agree to accept his new defense team. "If Mr. Rick cannot come back then I will be forced to accept Mr. Tony," he said of his previous learned counsel Rick Kammen and his new one, Anthony Natale.

The judge emphasized with the defendant that long-time capital defense lawyer Rick Kammen, who quit the case in a showdown over attorney-client confidentiality, is retiring from the practice of law -- a key reason for his replacement.

Mr. Natale, now the lead Nashiri team lawyer, said the earlier issue of invasion of the privilege that prompted Kammen's resignation is not over. His side wants more discovery. But for now they are satisfied with the new place where they are meeting with the detainee.

Judge Acosta also disclosed today that Nashiri's current, longest serving, most experienced Cole case defense lawyer, Navy Capt. Brian Mizer, could be leaving the case.
His active-duty orders expire early next year and the Navy has not responded to his request for an extension.

The judge said he was "hopeful" the Navy would respond in a timely manner. For now, it will be a "priority item" at the next USS Cole case hearing, scheduled for Jan. 6-10.

For now, the teams look like this:
Army Brigadier General Mark Martins is still on the case.
Assistant US Attorney Mark Miller of New Orleans is still lead prosecutor. Army Colonel John Wells is back, Navy JAG Cherie Jolly has been promoted to lieutenant commander...

And there's a new prosecution team member: Air Force Lieutenant Colonel Patricia A. Gruen, who has served as a judge in the court martial system.

The defense team has Natale, a veteran federal defender from South Florida as lead; military attorneys Navy Captain Mizer, Navy Lieutenant Alaric Piette, Air Force Major Brett Robinson and civilian Annie Morgan.

As reported earlier, three families are representing the Cole -- a shipmate who survived the attack and the fathers of two fallen sailors.
Also new in the court gallery today: The Pentagon has dispatched an artist from the Defense Media Activity to Gitmo to draw the proceedings.

Court is back in session. Learned counsel Anthony Natale is arguing a defense motion that seeks his team's participation in the process that crafts substitutions of classified evidence.
Now the defense is entirely excluded.

Natale suggests that the prosecution should provide the original and proposed substitution to his side, and the package need not go to the judge if they reach agreement. "We are not a danger to national security. We have all been vetted .. have all the necessary clearances."

Judge Acosta says the defense motion seeks something different: Nashiri team participation in what had been ex-parte prosecution presentations to the judge. As in the defense couldn't see the original, justification and would receive end product.

Natale says that, when he litigated the Jose Padilla CIPA case in federal court, the defense got all the classified discovery -- and then in at least one instance crafted a substitution as a stipulation.

Prosecutors until now have adapted CIPA to exclude defense lawyers from seeing certain classified information, conduct it as a unilateral (ex parte) process with the judge's eyes only.

The defense is seeking to reinvent the process now because this judge has upended the security regime thus far -- as flawed, outdated and, with declassification, misrepresenting some evidence that since surfaced.
nytimes.com/2019/11/08/us/…

Judge Acosta says the process wouldn't be ex parte if the defense were involved.

Natale says that might not be necessary, argues the default should be negotiation between defense and prosecution.

In an "extreme situation," Natale says, the prosecution might go ex parte and argue good cause to cut out the defense.

The judge replies, isn't that the substitution process as carried out so far? Doesn't the prosecution have that prerogative?

Natale: A 'need to know' standard is not appropriate in a death case. FOIA disclosures have demonstrated in this case that previous substitutions crafted by the prosecution were inaccurate, withheld information relevant to Nashiri's defense.

Here, the defense is arguing first because Nashiri's lawyers have the burden to change the system. The prosecution comes next, and has a several dozen page PowerPoint to explain the government's authority to do it the way they've done it so far.

Defense lawyer Natale: Including the defense does not jeopardize national security. In that rare exception they can come to you.
Judge Acosta: Who makes that determination, decides the risk to national security?

Natale: It should be yours. The judge safeguards due process.
Acosta: The courts aren't classification authorities.
Natale: We're not asking you to declassify. Defense have clearances too. Logistically it makes sense. The alternative is the defense challenging each summary.

Now it's prosecutor BGen. Martins' turn to argue for the status quo. He has a PowerPoint, says "a picture can be more economical than words."

Martins said nobody abused "the authorized ex-parte process" and did honor its "solemn obligation" under the law to provide discovery.

Judge Acosta is asking the general to summarize the coming portion of his presentation says, helpfully, Adequacy of the summaries?

The chief prosecutor says he needs to challenge factual issues in detail, goes to his first slide. It shows the Military Commissions law and a graphic "Bottom Line Up Front," showing prosecution authorities.

The general wonders aloud if the defense suggestion that it would challenge each substitution is a threat to gray mail, clog the process.

Slide 2 shows Musacchio v United States.

Slide 4 is 949p-4 Discovery of, and access to, classified information by the accused.
BG Martins says "we respectfully disagree" with Judge Acosta on his analysis of the judge's prerogative in the substitution process.

Prosecutor Martins is talking about the examples of inadequate substitutions that the defense found in FOIA releases, presented to the judge -- he calls them "gotchas." He says the defense should've come to prosecution first with these examples, for a kind of reconsideration.

Now Slide 7 has some statute and a zig-zag cloud with "Context" written inside it. Martins: "There are reasons why defense counsel can and should be among those at times who shouldn't be given disclosure."
He invokes "need to know."

Slide 8 says, among other things... "Need to know" is a determination made exclusively within the Executive Branch.

Slide 9 invokes Yunis, says it shows the executive not the judiciary, is best positioned to make these decisions.

Slide 10: Security Executive Agent Directive 4.

Martins says "we respectfully disagree" with Colonel Acosta, the judge, that a judge has any discretion to displace the executive authority, to second guess the prosecution's need to know determination.

Acosta: So does the judge even have authority to evaluate, challenge the substitution?
Martins: This is very healthy. There are nuances.

Martins is defending the 10-category construct as crafted by the prosecution that the first judge, Army Col. Pohl, agreed to as a framework for preparing and delivering discovery.
Martins says his side spent 5 years working within it, and they intend to file a new declaration.

Martin: "It's a process driven approach here" that needs to "continue to allow ex parte presentations based on a declaration that you're going to get .. with a focused evaluation of the risk and whether that risk is harmed by a substitution."

BG Martins invokes graymail again, says that in the substitution process the judge plays a role akin to "standby counsel" safeguarding a defendant's rights because the defense lawyers can't see the evidence.
As in, they get ex parte too, to explain possible defense theories.

Martins says he'll get to the FOIA examples soon but, broadly, his side has erred on the side of inclusion, because the obligation is not to significantly alter the quantum of proof.
He's skipping slides, up to 19, picking apart the defense brief.

Judge Acosta: How does "to the extent necessary" operate within the statute?

BG Martins: We disagree with you that our declarations expired but are getting a new omnibus one. "That's happening." Meantime, "to the extent necessary" must build on the other parts of the statute.

Slide 20 is a pop-up from the transcript of President Bush's remarks in 2006 announcing the transfer of Nashiri to Gitmo, disclosing that the defendant had been in the custody of CIA. BG Martins says nobody was misleading anybody.

BG Martins: A summary that used the expression "custodial interview" to describe Nashiri being questioned by the CIA wasn't covering up anything. Instead, he said, "summarizers" do seek to include the language from the original.

Martins: Besides, "interrogator" is a technical term. Other people besides interrogators questioned Nashiri in CIA custody so they needed "a generic term" and went with interviewers instead, not to mislead but to characterize.

Martins said "a size-able number" of paralegals and analysts directed by prosecutors crafted the summaries from cables that had "nested in every paragraph identifying information" about CIA officers and "very sensitive information."

But he disputes that they stripped out original language, appears to quote from cable language that has Nashiri's "clothes ripped off of him," and described "Nashiri was shaved moaning and wailing."

How many paralegals and analysts?
Prosecutor Martins declined "in this forum" to say.
Judge: You can't even provide a number?
Martins: Not in this forum.

BG Martins is addressing the issue of the missing term "catlike," says: "It's wrong to say somebody was doctoring the language. The words howling, crash, pounded on the wall with their fists and other details are all in that summary that we gave them that they didn't include."

BG Martins: There's nothing "counter-intuitive or notorious" about a government wanting to try somebody presumed to be innocent while protecting national security information.
Also, the general says, Nashiri has yet to challenge his status as an unprivileged enemy belligerent.

BG Martins: Cat-like was not removed intentionally to deprive anything but an original classification authority has to protect various bits of information that could be linked together to become risky.

Judge Acosta says he's not attributing motive but could not all those small mosaic type things also work in reverse -- could not the prosecution stripping out details add up to a large gap and effect the defense knowledge and disadvantage them?

BG Martins: It is true that George Washington Law students got through FOIA cables nine different specific dates that the defense lawyers haven't received -- because the prosecution summaries strip out dates, characterize the black sites in generalized time periods.

But, the general said, prosecutors have an ongoing "dates project" to help the defense sequence things. Also, he said, prosecutors have already given Nashiri's lawyers a 34-page, 2272-line spreadsheet that to some degree does a cable chronology -- and Nashiri is allowed to see.

BG Martins also announces that 8 slides in his PowerPoint presentation have gaps, are hiding info that prosecutors want to show the judge ex parte, but the defense can't see. He gets permission essentially to substitute the slides for the judge with secret stuff.

Judge Acosta: You say sometimes you give defense lawyers classified information, without the involvement of the commission -- and sometimes you run summaries through the judge. Who decides which system you use?

BG Martins: The law.
Judge Acosta tries again: Is it you or the Original Classification Authority or, as he calls it, OCA*?

*Generally means CIA.

BG Martins: If its discover-able we give it to the defense.
Judge Acosta: You, in consultation with the stakeholder?
BG Martins: In consultation with the original OCA and we look at it through the lens of commission rulings.

Judge Acosta: Does the OCA decide which classified info the defense lawyers are allowed to see?
BG Martins: There are treasures the nation needs to safeguard.
Judge Acosta is trying to sort the process. When prosecutors can give them classified info, when they go to the judge.

BG Martins declares it a good question and says the government, as in prosecutors in consultation with the original classification authority, follow the law and the judge decides if it's adequate.

Judge Acosta wants to understand "these rules of thumb."

BG Martins is explaining why "learned helplessness" is stripped out of a cable that GW got through FOIA and Nashiri didn't. Prosecutors never turned over that cable, he said, because it wasn't relevant to Nashiri -- but the expression does turn up in other discovery disclosures.

He has a list of discovery documents that refer to the notion of learned helplessness. "There's no question" in these documents, he says, that the CIA was "seeking to induce .. a state of learned helplessness."

Plus, the prosecutor says, Nashiri's lawyers know all about learned helplessness from the summary and findings of the Senate RDI study. They have "rich and vivid material," graphic information that's in the public domain in that report..

BG Martins is putting in a pitch for substitutions by invoking information that was taken from captives in the black sites as "interrogatories" -- and admitted as defense testimony at the Moussaoui trial in federal court.
(While the "witnesses" were still in the black sites.)

BG Martins tells the judge that Nashiri's lawyers have never gone back to the prosecution and said this summary or that lacks details, and they need information.
Judge Acosta: Can they appeal summaries?
BG Martins: No, but they can ask us for information they find lacking.

BG Martins said the defense lawyers have always had the prerogative to go to prosecutors and, for example, "Ask us how long a specific technique was applied," or for other details from the black sites that may have been left out of discovery.

BG Martins is disdainful of the defense approach, calls it a gotcha strategy based on some FOIA cables after a long hiatus...

...And he draws an admonition from the judge. Col. Acosta says he's told both sides that he doesn't want to hear this, look back, wants to move forward.

Meantime, Colonel Acosta is still trying to unpack the process by which prosecutors sort, deliver classified information and/or substitutions. How does it work that sometimes there's a need to know and sometimes there isn't, sometimes defense get it but defendant cant see it.

BG Martins: There's a process handled by the people who know our adversaries. A judge has to "resourcefully find a way to get a trial wherever we can and get security all the time."

BG Martins reminds Col. Acosta that the war court judge's role is to compare each summary to the original and if he declares it inadequate -- and explains why -- the prosecution will go back and consult on whether they can do more. And have done so.

He adds that, if the judge still doesn't like the substitution, still doesn't consider it adequate, the judge can invoke remedies such as dismissal or exclude evidence -- and then the prosecution can appeal up any adverse rulings of their substitutions or summaries.

The Nashiri hearing is in an afternoon recess. Unclear is what more we have today, or this week for that matter.

In court now, defense lawyer Natale is responding to the prosecutor's reference to the Moussoui case, cites the 4th circuit appeals court ruling in that case, which said CIPA substitutes need to be interactive. ca4.uscourts.gov/Opinions/Publi…

Natale says some of the gatekeepers of the evidence who are calling the shots on the national security exclusions and substitutions in this case were responsible for "my client's torture."

Natale says prosecutors are "waist deep in the big muddy" and instead of trying to find a better way (consistent, he says, with due process and the Constitution) they wont start fresh on the case with a new process.

Judge Acosta has no questions. Now defense lawyer Natale is following up on a disclosure made by the prosecution that they were mistakenly sent the transcript of an ex-parte hearing between an earlier judge and defense lawyers.

Prosecutors said they didn't read it, destroyed it.
Defense lawyers want more discovery on the episode. Prosecutor Mark Miller says he received the discovery request but, if there is supposed to be collegiality, the defense should accept his side's word that they didn't read it.

The court is in recess until 9 o'clock tomorrow. The judge says he'll argument on AE311B, a Judge Spath legacy issue.

More on the earlier from my notepad...
It was disclosed today in court that prosecutors said they "inadvertently received" an ex-parte "defense presentation" to the judge, sounds like from October 2014, who "immediately destroyed" it.
The defense want more details.

About the episode on pages 14-15 in today's transcript: mc.mil/Portals/0/pdfs…