by Julia Rodriguez & Phyllis Rodriguez
This summary is taken from our notes, brief summaries of motions provided by the defense teams and comments by the chief prosecutors to the media on December 11, 2015.
It was Phyllis’ second time visiting the base; in January 2013, she was chosen by lottery. This time, Julia was chosen and took her mother with her. As always, the prosecution team members try to control the family members’ view of the proceedings. Since they are our “hosts”, they also set the rules the best they can by escorting us everywhere and being the arbiters of our movements.
For example, members of “the Team” visit us just about every day or meet us for dinner. In order to meet with defense attorneys, media or observers, at least one family member has to request it and be ready to persist, since logistical objections are raised as obstacles. We succeeded in being granted two meetings with defense teams and the media. However, it was our own initiative to join several of the observers: Amnesty, a few law schools, Judicial Watch, American Bar and the National Institute for Military Justice one evening. Happily, we are all free to speak with anyone we choose during breaks outside the courthouse.
The atmosphere and dynamics among the family members in December was much different than in 2013. There was an angry, hostile mood toward the defendants as well as anyone not agreeing with them about the death penalty, constitutional rights, i.e., the two of us. Revenge was in the air and we can’t help thinking that the latest attacks in Paris and San Bernardino have heightened people’s fear. From what we’ve learned, personal hostility among family members is rare, since most of us respect the others’ points of view but are united as human beings by our shared loss and grief.
We arrived on the base from Andrews Airforce Base on December 5, 2015. On any given week, there is a potential for a maximum of five days of hearings. Due to classified documents or portions of those motions scheduled for the week, a closed session was conducted on Monday, the 7th. We were able to observe three and a half days of hearings.
In addition to the need for closed meetings on Monday, there were delays due to appointments detainees had with the International Committee for the Red Cross that conflicted with the hearing schedule. Time was also used to discuss the lack of clearance for an interpreter who was on the base but kept out of court.
“Female guard issue”: On Tuesday, Wednesday, and Thursday, the Commission took testimony from our witnesses on a defense motion to stop all activities that bring female members of the Joint Task Force Guantanamo guard force into direct physical contact with the Accused. Judge Pohl did not lift his order prohibiting assignment of women to transport teams to and from legal meetings and court sessions, as requested by prosecution. He postponed it until he rules on the motion. According to the defense, this is one part of the larger issues surrounding “conditions of incarceration”. In addition, a defense motion to compel the government to produce discovery material related to equal opportunity complaints which Judge Pohl took under advisement. The docket continued on Thursday and Friday.
Discovery: There are quite a few documents which have not been released by the government/ prosecution to the defense teams that have been requested for months and years. All of them affect the ability of the teams to defend their clients to the best of their ability, as proscribed in the US Constitution. They include but are not limited to violations by the government of attorney client privilege, such as, notes of attorneys’ meetings with their clients; an unredacted copy of the congressional report on rendition, interrogation and torture, which the prosecution has access to.
- a defense motion that the judge compel prosecution to produce all documents and information relating the White House of DOJ authority for the CIA Rendition, Detention, and Interrogation Program (RDI). The Judge granted the government’s motion to consolidate and defer discussion to February sessions, and required it to submit an update and consolidation proposal within two weeks.
- a defense motion requesting the military commission to order the prosecution to produce unredacted, unclassified discovery documents unless the MC orders deletions or substitutions under Military Commissions Rule of Evidence (M.C.R.E.) 506. To be discussed in February.
- a joint defense motion to compel the government to produce communications between the government and filmmakers of Zero Dark Thirty. The Judge deferred argument on this motion until February 2016 sessions.
Perhaps most fundamental to the hearings was the Joint Defense Motion to Dismiss for “Unlawful Outside Influence.”:
The defense requested that the case be dismissed stating that prejudicial and inflammatory comments made by US political leadership in the past several years had irrevocably tainted and unlawfully influenced the case. To support the motion, videos of public statements by elected officials assuming guilt and the death penalty were shown. Also cited were listening devices in interview rooms, seizure of protected material violating attorney client privacy, attempted infiltration of a defense team by the FBI, among others. The judge took the motion under advisement, noting that he might hear further oral argument in a closed session during the February 2016 sessions.
This is just a smattering of what was addressed that week. We hope it gives you an idea of the complexity of the proceedings and the important principals at stake.