5/28 Session #1: Getting the SSCI RDI Report---or Not

It’s on---the open part of our proceedings, anyway.  Recall that court and counsel began their day already, some time earlier this morning, in a Role 505(h) session that has concluded.  The parties there debated the need (if any) to use classified material during our session, along with possible workarounds.  That having ended, the day’s publicly viewable portion begins.  Al-Nashiri is present.  The court thus advises him of his continuing right to attend proceedings, along with the consequences that might attend even a knowing and voluntary waiver.  When asked, the accused says he gets this. Learned Counsel Rick Kammen rises to make a record regarding the disparity in prosecution and defense resources.  Its illustrated by (among other things), the assignment of a new civilian prosecutor, Mikeal Clayton, to the government’s now twelve-strong complement of lawyers.  But Kammen and crew have only five attorneys---and wants the commission to be aware of the problem.  (Kammen adds that the commission's inaction, on a defense bid to allow Al-Nashiri attorney Nancy Hollander to access classified material, compounds the problem.) On the substance---and In AE206, the defense seeks to compel discovery of the Senate Intelligence Committee’s still-classified, 6,000 page report into the CIA’s rendition, detention and interrogation program.  Al-Nashiri was a “participant” in that program, to borrow the gnarly euphemism.  The questions thus arise: who owns the report? Who can release it?  Judge Pohl asks, and defense counsel, in the person of Army Major Tom Hurley, answers: the United States Senate.  But that's of no moment, in the defense lawyer’s view.  The court can order the legislature to hand over discoverable material---which the report very much is, under commission rules.  (The idea is that the report contains statements made by Al-Nashiri, admissions by government officials, and evidence of outrageous government conduct.) Hurley underscores that all defense counsel are cleared and entitled to receive the sought evidence.  He adds that the report is these days subject to a classification review by the executive branch; the latter has seen it, Hurley seems to argue, so why can’t Al-Nashiri’s lawyers?  Court and counsel discuss further, the former wondering why, exactly, Hurley seeks the report---rather than the underlying documents only.  Only the latter constitute evidence, in Judge Pohl’s opinion.  Hurley disagrees, among other things given the Senate Committee’s analysis of the source material.  And, he goes on, the report enables the defense to perform a full pre-trial investigation into events that, in Hurley’s words, “shock the conscience.”  The lawyer then pivots to the government’s response, which he characterizes as a “cruel joke”---the cruelty arising from the prosecution’s insistence on a fast trial schedule, on the one hand, but its suggestion, on the other, that Al-Nashiri’s attorneys can access RDI discovery in due course, once the long process of declassification has concluded.  “They know better,” Hurley argues; the SSCI stuff isn’t forthcoming, absent hurrying up from the military judge.  The lawyer says a few more words along these lines, and urges Judge Pohl to enter an order. Over to trial counsel CDR Andrea Lockhart.  She derides the defense’s argument as short on facts and law: the motion isn’t ripe.  All parties, she says, know that the defense isn’t entitled to the Senate report in its entirety; that’s almost certainly so, given the legal standard in play.  There might well be some relevant, material stuff within the report, sure---but the whole shebang surely isn’t.  At any rate, the defense already has substantial classified discovery bearing on RDI, or will get its hands on it shortly (assuming, of course, that the court takes no action on the prosecution’s motion to reconsider the court’s order regarding RDI discovery). In any case, we're jumping the gun, Lockhart argues.  The prosecution itself has sought the Senate report, but has yet to review it.  If her side gets it, then her side will review it and turn over any discoverable portions. Lockhart lastly dismisses Hurley’s claims regarding the case’s timetable---and, when asked, tells the court that sbe has no authority to order the legislature to release the SSCI document.  The prosecutor also reaffirms that her side is “actively seeking” the report, and says she’ll have an update on the prosecution’s access to it in late June.  Around that time, Lockhart says, at least the report’s executive summary may be declassified.  This visibly confuses the court; why does declassification matter, for purposes of discovery?  We have rules for discovery of classified material.  The prosecutor dissembles a but, but seems to say only that declassification would make matters easier, by broadening access to the sought material. Hurley rises in reply.  In a death penalty case, he argues, the views of government officials about government wrongdoing, regarding the treatment of the accused, are squarely relevant.  Ditto evidence of the treatment of other individuals.  A few words more and Hurley sits.  Lockart rises briefly, only to underscore the speculative character of Hurley’s whole presentation: nobody has read the Senate report yet.