11/17 Session #4: Discovery, Both Bergdahl-Related and Not

In AE18, Lt. Col. Tom Jasper seeks, on behalf of Al-Hadi, to compel discovery into certain communications---those between the Convening Authority and Defense Department brass, regarding the release of Private Bowe Bergdahl. The lawyer recites the facts: the charges against Jasper’s client were first sworn in February of 2013, and forwarded to the Convening Authority some time thereafter, before the latter gave his needed sign-off in February of 2014. There’s a kink here, which has to do with timing. In May of that same year, the United States also swapped a five-strong Guantanamo contingent in exchange for Bergdahl, who had been held by the Afghan Taliban. Thus Jasper and company want to know: did the Convening Authority have any communications with higher-ups, about the Bergdahl exchange?  Did those communications inform the decision to refer charges in this case? The defense sought answers but was rebuffed by the prosecution; the latter said had no responsive materials, and that any such materials would not be discoverable in any case. Jasper wonders aloud here, about whether the United States really did try hard to uncover any Bergdahl-relevant stuff within the Convening Authority’s coffers. As if to underscore the stakes, the attorney nods to unlawful command influence---the enemy of military justice, in Jasper’s view. And he adds that the government’s response appears vastly narrower than the defense’s broadly-drawn request; prosecutors haven’t searched very widely, but Jasper thinks a wide search is required. For his part, the military judge is confused; what’s this about, so far as Al-Hadi goes? Jasper doesn't really answer but unfurls a little speculation---what if Al-Hadi’s case was referred, precisely to show that the commissions cases were making progress around the time of the Bergdahl swap?  This doesn’t seem to satisfy the military judge, who presses some more.  But there's Jasper, again: what if somebody called the old Convening Authority, in the wake of the Bergdahl exchange, and applied pressure for more prosecutions at GTMO? The lawyer wants confirmation about just how diligent, or not, the prosecution has been in searching for discovery material. After all, a new Convening Authority holds the office; another person held it at the time relevant to Al-Hadi's discovery request. In any case, “[b]efore you deny our motion,” Jasper argues, the court should uncover the truth behind the government’s efforts. Trial counsel Mikael Clayton says the defense indeed has crystallized the issue with Jasper's nefarious-sounding question: did anyone reach out to the Convening Authority, regarding the Bergdahl swap?  Well, Clayton and company have put that very question to the Convening Authority---both the current officer and his predecessor.  And the answer in each case has been a resounding no: no inquiries were made, no influence was exercised, period. Prosecutors even passed on the defense’s written request itself to the convening officers.  What more is there to do?  His side is committed to meeting its discovery obligations, Clayton says; but he argues that there’s no obligation to go fishing around the wider federal government, for Bergdahl-related, Convening Authority-related information. The prosecutor also scoffs at Jasper’s suggestion that a fast response to an easy question (“did anyone lean on you about Bergdahl?”) implies a less than diligent discovery effort by the United States.  Sometimes easy questions get easy, fast answers. Again: there were no materials responsive to Jasper’s question, full stop. Return serve to Jasper.  Judge Waits asks him why Clayton isn’t right: if the Convening Authority received no correspondence bearing on Bergdahl, then how could it be relevant whether this or that executive branch functionary would be talking about GTMO and Al-Hadi?  Well, Jasper says Clayton would be right---though only if Clayton’s side had done a fulsome discovery search. How do we know that prosecutors didn’t ask around within the Convening Authority, rather than pushing the Convening Authority himself?  So far, we’re not clear about which of these actually happened. The court: so you’re not satisfied with the government’s response?  Or are you?  Jasper doesn’t say is "satisfied." But he remains confused as to why it took so long to get a clear answer from Clayton and his colleagues as to what really transpired.  (Clayton stand and clarifies now that communications with the Cnvening Authority were made through the latter’s staff, and then relayed back to prosecutors on Clayton's team.)  Argument done, AE18 thus goes quietly into the night---and awaits formal resolution by the bench. That brings us to a housekeeping item---the day's last. At issue in motion AE21 is whether males and females---or males only---may be permitted to shackle Al-Hadi.  The accused argues that his religious beliefs preclude him from engaging in any unnecessary physical contact with women.  Thus his motion, which Waits had granted temporarily, pending today’s oral argument and final resolution of the dispute. There’s a catch. The defense only last night received discovery bearing on AE21---discovery which, in the view of defense lawyer Lt. Col. Tom Jasper, Al-Hadi’s attorneys need to thumb through before arguing AE21. This poses a timing issue: should court and counsel debate the law (which is fully briefed) now, or wait for a later time, so that the defense can have time to drill down on the underlying facts and discovery?  The first option would mean a bifurcated proceeding; the latter would mean a delay of game, until later this week or even until the case's next session, in January.  Jasper acknowledges the court’s prior offer, of  breaking early today and taking AE21 up tomorrow---but says that won’t be enough time.  He’ll need a lot more, to properly identify witnesses and prepare, he says. Lt. Col. David Long appears for the government. He barely speaks when Judge Waits interrupts and expresses distaste for a bifurcated, law-first-then-facts hearing calendar.  Long demurs as to the timetable, preferring instead to talk about the procedural state of play. Long says the defense’s initial request implicated some classified material, which was only made available on Friday. And it turns out the defense didn’t have the needed equipment to store materials at that classification level; this required further delay, and resort to a courier process. In that respect, Jasper’s argument to the court correct, but not especially consequential. There’s only 30 or so pages’ worth of classified stuff. The vast majority of the remaining discovery is unclassified, and comprises standard operating procedures and the like. If Long’s precise answer to the military judge’s question is elusive, his implication nevertheless is plain enough: it won’t take long for the defense to review this stuff. In this respect, Long urges the court to review the small universe of information---to see just how small and inconsequential it really is. “A day or a day and a half” would be enough for Jasper and crew to familiarize themselves with the discovery, and to prepare argument on the motion. Final word from Jasper: though his side agrees that the prosecution has been diligent in obtaining the sought discovery, the defense attorney still has a problem. It’s not just about reading 150 pages, he says; it’s also about making inquiries with witnesses---or even Al-Hadi himself---about what in those pages is, in fact, true or not. And all that “shouldn’t be a rush job,” he argues.  Bear in mind that Jasper can’t just waltz willy-nilly to his client’s cell and ask about discovery matters; this is Guantanamo, where things are vastly more complicated. He thus urges a longer pause. Judge Waits notes a potential Rule 505(h) issue, regarding classified material; he’ll thus speak with the defense and prosecution about that jointly, immediately following our open session now.  After that, he’ll also speak ex parte, this time with the prosecutors about classified discovery. Based on that, the military judge plans to rule tomorrow on whether to hear argument on AE21 this week---or at a later time. As for your Ft. Meade observers: we stand in recess until 1300 tomorrow, when the court will announce its ruling.