Transcript of Guantanamo Hearing for al-Nashiri
The Military Commission's website last night posted the transcript of yesterday's four hour hearing for al-Nashiri. (Go here, click on second al-Nashiri link, it's the top document. There is no direct link.)
It wasn't just an arraignment. The judge heard argument on and granted the defense motion to prevent Gitmo and prosecutors from reading his legal mail (with some exceptions.) The Court also heard argument on al-Nashiri's motion seeking to have the military jury advised at the start of trial if an acquittal won't result in his release (see my earlier post on this here.) The Court addressed an issue of potential conflict of interest for one of the defense lawyers, Michael Paradis who represented al Bahlul in appealing his conviction by military commission and life sentence. Al-Bahlul is named as a co-conspirator of al-Nashiri's in Charge V. [More...]
At the beginning of the hearing, all the lawyers had to stand and announce their qualifications. Al-Nashiri now has four lawyers, including "learned counsel" Rick Kammen of Indiana who will be the lawyer speaking for him. (Learned counsel means counsel experienced in death penalty proceedings and Rick Kammen is one of the country's best capital defense lawyers. See page 11 for his amazing qualifications.) The others are Lieutenant Commander Stephen Reyes, detailed defense counsel; Major Allison Danels, assistant detailed defense counsel; and Michel Paradis, assistant detailed defense counsel.
The Judge told al Nashiri he also has the right to be represented by military counsel of his own selection, provided that the lawyer he requests is reasonably available. If he chooses his own military lawyer, his detailed lawyers would be excused -- unless he wants to keep them as well, and then it would be up to the Court whether he could have all of them.
The judge informed al-Nashiri that he's also entitled to a lawyer who is learned in applicable law relating to capital cases pursuant to Rule For Military Commissions Rule 506(b). In addition, the judge told him, he can have a civilian lawyer so long as the Government doesn't have to pay for him or her. (All of his current lawyers are paid by the Government. ) If he wants to add a civilian lawyer, he can still keep his other lawyers.
The portion of the hearing following the discussion of potential conflict of interest with Michael Paradis is really interesting. Rick Kammen said Al-Nashiri had some questions for the judge. Kammen then proceeded to quiz the judge as if he were conducting voir dire of a juror. Kammen said Nashiri wanted to know if the judge thought he was guilty; the judge's personal views of the death penalty; what factors the judge might consider mitigating, and whether, if convicted, the judge could find any sentence other than death appropriate.
LDC [MR. KAMMEN]: On a scale of 1 to 7, 1 being absolutely opposed to the death penalty and 7 being for the death penalty every time a person is convicted of intentional murder, how would you rate your personal support?
MJ [COL POHL]: Well, first of all, I think number 7 is not in accordance with the law, so let me tell you right now I'm not a number 7. After that, I will not answer any further on that issue.
Kammen asked the judge's views on torture, and what the term means to him, and whether if the evidence showed al-Nashiri was tortured, he'd consider it a mitigating circumstance. At this point, the judge pointed out that the sentencing decision in this case will be made by the members of the commission, not him as the judge.
LDC [MR. KAMMEN]: If you believe high public officials were instrumental in ordering and arranging Mr. Al Nashiri's torture and those individuals were not going to be prosecuted or punished in any way, do you think that is mitigating and could justify a sentence other than death?
MJ [COL POHL]: Same answer.
I'm only on page 36 of 174 but this is really an interesting transcript. I'm glad that the Pentagon has decided to publish the transcript for greater transparency.
One last note from tweets of today's hearing. The hearing room was the size of a basketball court. For 9 years, al-Nashiri has been confined to a 8-by-12-foot room. When he first walked into the hearing room, he was so happy to see a big new room, he waved to those watching.
Nashiri lawyer Richard Kammen said his client waved to the spectators at the start because he was pleased to be in a new big place...
If you don't have time for the transcript, read Miami Herald/McClatchy reporter Carol Rosenberg's twitter feed. She recaps the whole thing, including the attorney-client mail issue which Nashiri won (Defense pleading laying out issues is here.)
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