Transcript: Press briefing remarks by Defense Counsel Richard Kammen on motions hearings for U.S.S. Cole bombing suspect Abd al-Rahim al-Nashiri

Edited by Jenny Jiang

Transcript of press briefing remarks by Richard Kammen, Learned Defense Counsel for U.S.S. Cole bombing suspect Abd al-Rahim al-Nashiri on July 19, 2012 at Guantanamo Bay: 

“Good afternoon. I’m Richard Kammen – Rick Kammen. I’m Learned Counsel for Mr. Al-Nashiri. Working with me on the case is Lt. Comm. Stephen Reyes and Maj. Allison Daniels.

“If there are themes we can ascribe to the proceedings over this week, I think there are two or three that are really significant.

“The first is the increasingly pernicious effect of the desire – the apparent desire – of the Convening Authority Admiral Bruce MacDonald to attempt to micromanage and control the proceedings in a way which is wholly at odds with his proper function. And in fact, we think really runs the risk of further undermining the vitality of this process and really demonstrates, in many respects, the unfairness of the process.

“The fact that somebody – a bureaucrat in Washington whose decision it was to that Mr. Nashiri should be executed if he is convicted – is attempting to really control in ways that even the prosecution is forced to resist the behavior of the judge in ways that are completely unprecedented.

“This bears upon the issue of judicial independence, and one of the reasons we moved to recuse Judge [James] Pohl was because of our fears that he suffers from a lack of independence due to his unique status as on retirement recall.

“And certainly nothing that happened over the course of today – of this week – at least so far has ameliorated those concerns. And in fact, the behavior of the Convening Authority has greatly increased those concerns.

“Bound up in that, in those issues, is the issue of resources. And those of you who have observed the proceedings saw issue after issue after issue of the defense seeking resources in ways that they wouldn’t even occur in a – certainly in a federal court. We’re having fights over resources that simply wouldn’t exist in a federal court and opposition from the prosecution over resources in ways which are very, very troubling given their claims they are seeking full and fair justice.

“I think we increasingly saw in some very real respects how unsettled the law is because if you’ll notice, if you’ll recall today the discussion that started with a discussion of Adm. MacDonald’s authority to essentially dictate to the military judge what jury selection should look like, that quickly devolved into a discussion between the prosecution and the defense and the end result was nobody knows what jury selection should look like. It’s essentially going to be a process that will be figured out as we go along.

“And sort of time after time after time over the course of Monday or whatever day we began – it’s sort of a blur to me. Tuesday. And today we saw issues where the parties are trying to figure things out in ways that simply wouldn’t exist in federal court.

“And finally, of course, there is the issue of transparency. We have requested that the proceedings not be limited to the proceedings going out to Fort Meade or Norfolk but essentially be made available to any media outlets that choose to carry it – whether that be Fox News, C-Span, ABC, whoever. And that the widest possible viewing audience certainly have access to it – to these proceedings. Surprisingly, the prosecution opposed that effort seeking to keep the status quo where only limited numbers of the public can see the proceedings and only those who choose to go to the place in Fort Meade or who happen to be associated with, in our case, the survivors of the Cole or their families or in the 9/11 case the survivors of obviously 9/11.

“And turning now to those families and the last time we were here, one of the family members said in their piece this: that in many respects that they felt that the family members have been lost in all of this. And certainly, I have been remiss because I have not – in prior conversations with the press – acknowledged that. We haven’t done that because we feel awkward doing that. But I do want people to know – and those of us who do capital work routinely deal with survivors of horrific crimes – that we cannot possibly know or understand their pain. We cannot possibly know or understand their grief. We cannot possibly know or understand but certainly can appreciate their anger. And so we want to acknowledge that and acknowledge our inability to really do much more than acknowledge the feelings that we simply can’t give voice to because they are so profound on their part.

“So with that, I’ll answer any questions that any of you may have.”

Press briefing Q&A:


“Your client didn’t show up for two days in a row after the ruling that he be excluded from the 505H. Why isn’t he coming to court?”

Richard Kammen, Learned Defense Counsel for Abd al-Rahim al-Nashiri:

“He voluntarily chose not to attend. We’ve had communications from him as to his reasons but because of the presumptive classification rules, we’re not allowed to share those with you.”


“You’re not allowed to say if he’s unwell?”

Richard Kammen, Learned Defense Counsel for Abd al-Rahim al-Nashiri:

“We’re not allowed to share the contents of – it’s all considered beyond top secret and we’re not allowed to share that with you. I’m sorry.”


“Are you allowed to say if you’re satisfied that the voluntary [inaudible] is accurate?”

Richard Kammen, Learned Defense Counsel for Abd al-Rahim al-Nashiri:



“Okay. Do you have a next date?”

Richard Kammen, Learned Defense Counsel for Abd al-Rahim al-Nashiri:

“Yes, whatever the – I believe it is Monday – we’ll be flying on Monday the 22nd – whatever that Monday is. And the court hearing will be the 23, 24, and 25. October.”


“Just to be clear, aside from having to request resources from the Convening Authority, what other procedural matters addressed over the last few days would not occur in a federal civilian court?”

Richard Kammen, Learned Defense Counsel for Abd al-Rahim al-Nashiri:

“Well, you certainly wouldn’t have anything in the federal court of a what I’m going to call bureaucrat attempting to impose his will on the – on a federal judge.

“I mean, let’s look at, for example, what – because there were now a third instance of this.

“The first is sort of old news in dealing with the ex parte submission request for resources. The original position of the government was they didn’t oppose that. The judge wanted to get the Convening Authority’s input. The Convening Authority vehemently opposed that and the judge deferred to the Convening Authority.

“Well, then we had the Convening Authority trying to dictate the nuts and bolts of the jury selection in a way which it appears from the colloquy even the prosecution agrees was inappropriate. And certainly I think the word ultra vires was floated around that – that means beyond his authority. And I certainly wouldn’t want to speak for the prosecution but it certainly appeared – at a minimum, it is our view that his attempts to control void dire was ultra vires and it certainly appeared to us that the prosecution agreed.

[Off-camera comment]

“And that’s fair. And you’ll see the transcripts and you can read and judge for yourself.

“And then finally, and I don’t know that this was – because it was just sort of glossed over in the proceedings, if you’ll recall on Tuesday, there was a discussion of funding of one expert and the Convening Authority we had presented ex parte information to the Convening Authority. They rejected that and said you can take that up with the judge, which we did. The prosecution agreed that was the proper procedure. Last night, the Convening Authority’s office filed a rather lengthy brief opposing that procedure even though they had previously endorsed it. And it is very clear that what they are doing – what the Convening Authority is doing – is attempting to reassert his role and take the power that should exist with the military judge away from the military judge in a way that’s completely unprecedented.

“Finally, in the request for transcripts where the government – the prosecution – essentially argued the position of the Convening Authority that whatever information we present is not enough. There’s always need more information, greater justification, which really impacts the attorney-client relationship, the attorney-client work product. This is material that – this is something that would never occur in the funding of a federal capital case. In a federal capital case, all of the funding procedures exists ex parte. They are controlled by a federal judge. The federal judge makes the ultimate decision whether the funds are necessary, and those decisions are reviewed by senior officials at the relevant circuit courts of appeal, but the prosecution is completely out of the mix in a way that doesn’t exist here. And you don’t have a bureaucrat, such as the Convening Authority, attempting to control it in a way that’s very clearly being attempted here.”


“Without violating the presumptive classification regulations, [inaudible]…?”

Richard Kammen, Learned Defense Counsel for Abd al-Rahim al-Nashiri:

“I have no idea what the future holds. I have no reason to think so. I hope not, but one of our concerns, if you’ll recall, at the very beginning when we filed the motion dealing with the fact that even if he’s acquitted, somebody in Mr. Nashiri’s position – the government has made it pretty clear – will stay in Guantanamo. One of the concerns that we expressed then is that an accused in that position may well say, ‘Well, look no matter how this turns out I’m stuck here. So in what does this really hold for me?’ I’m not suggesting that is his position but that’s always a concern.

“Any other questions?

“Okay, thank you very much.”



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One Comment on “Transcript: Press briefing remarks by Defense Counsel Richard Kammen on motions hearings for U.S.S. Cole bombing suspect Abd al-Rahim al-Nashiri

  1. Pingback: Transcript: Press briefing remarks by Gen. Mark Martins on motions hearings for U.S.S. Cole bombing suspect Abd al-Rahim al-Nashiri | What The Folly?!

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