11/6 Session: Fighting Over MRIs & Hearsay

Thursday's session opens with an update on AE 284, the defense motion seeking Skype calls for Al-Nashiri, from prosecution attorney Col. Robert Moscati. The prosecution has learned that the Guantanamo administrators expects to be able to provide direct interactive communication between high-value detainees and their family members by the end of the year. The parties have agreed to hold this motion in abeyance until the communications system is implemented. After a bit of antagonistic back-and-forth between defense attorney Richard Kammen and Col. Moscati, the former implying that the government only relented on this issue when it appeared the commission would allow an evidentiary hearing and the latter explaining that the government has been developing this capability for months, Judge Spath moves on to a defense motion seeking use of an MRI machine for purposes of a death penalty mitigation evaluation for Al-Nashiri. Kammen explains that the MRI machine is necessary to show the extent of any brain damage. The convening authority has only agreed to allow Al-Nashiri to see a psychologist, but just the security process alone will take months and chances are an MRI will still be necessary to resolve disagreement between the defense and government psychologists. On the other hand, an MRI now will obviate the need for dueling psychologists and will only leave the question of what caused the brain damage for the two sides to debate. Kammen concludes by noting that mitigation is not an excuse for the alleged crime, but speaks to whether Al-Nashiri deserves the death penalty if convicted. Back up is Col. Moscati, who says that there are no medical indications that an MRI is necessary. Only Dr. Crosby, a defense witness, has speculated that an MRI may show brain damage. Judge Spath interrupts: The standard for the defense's request is whether the expert assistance is material to their preparation of a mitigation case. In fact, there is a string of cases where courts reprimanded defense counsel for failing to pursue evidence of brain damage and ultimately new trials were granted in those cases due to ineffective assistance of counsel. So what does the prosecution expect the defense to do here? Col. Moscati points out that an MRI scan would not explain how or when brain damage occurred and so it would not be useful for a mitigation case. The defense should use the neuropsychological testing granted by the convening authority for its case. But Judge Spath isn't buying it. Whether potential brain damage occurred before or after Al-Nashiri was in government custody, the fact of brain damage can serve as a mitigating factor and so an MRI would be useful evidence. Timing only speaks to the extent of such mitigation. Col. Moscati wraps up by arguing that the very idea that Al-Nashiri might have brain damage and so needs an MRI is speculation by the defense and is not based on any evidence. After a brief rebuttal from each side, Judge Spath moves on to AE 319, a defense motion to exclude hearsay statements proferred by the government. Argument is limited to the mechanics of the evidentiary hearing at which the government, under the rules of the Military Commissions Act, must prove the reliability of the statements. The government would like to call seven witnesses, says Col. Moscati, who will show that the 71 hearsay statements are corroborated, voluntary, reliable, and are offered as evidence of a material fact, are probative of that fact, serve the general purpose of the rules of evidence and the interest of justice, and the witness is not available as a practical matter. Judge Spath notes that the defense agrees with this procedure, but there is still the matter of discovery in relation to these statements. Col. Moscati explains that the government is taking another look at previously redacted documents provided to the defense. These are FBI FD-302 forms, used by FBI agents to summarize interviews. They were originally redacted in general discovery as sensitive law enforcement information, but that may no longer be appropriate under the government's new discovery obligations in this hearing. The government also requests 45 days to arrange witnesses, which means this process won't begin until the scheduled February hearing, and the government estimates that this process may take four to six weeks between direct examination, cross examination, translation, and defense witnesses. The next point of contention highlighted by Judge Spath is the defense's request for additional witnesses. The defense asked the prosecutors to produce 40 witnesses, and the government agreed to seven, which were the same seven the government was already going to call. Can the government take a look at those other witnesses again and see if any additional witnesses can be approved? If not, the commission will have to hold a hearing between the government's witnesses and the defense's to work out witness production issues. Col. Moscati says the government is happy to sit down with the defense and discuss their proposed witnesses, but the government did previously explain that it felt those witnesses were cumulative. Judge Spath points out that the standard for cumulative witnesses is a fuzzy one and so he hopes the government and defense can come to some agreement on additional witnesses. With the parties in seeming agreement on the logistics and Judge Spath comfortable with the proposed schedule, Kammen pours some cold water on the plan: The defense needs 60 days to prepare for these hearings if it is just now going to get the unredacted 302 forms. It also attempted to interview a few of the prosecution's seven witnesses, but the government repeatedly instructed those witnesses not to answer the defense's questions, so the defense would like to interview those witnesses again without prosecution interference. Further, if the prosecution would like to use statements made by Walid Bin'Attash, another high-value detainee, then the defense would need discovery on Bin'Attash's CIA detention and would like to speak with his lawyers. The defense also wants information on the hearsay witnesses' detention in Yemeni prisons before their contact with FBI agents. Judge Spath points out that some of this information might come out on cross-examination, but Kammen says that the defense needs evidence in advance to judge the truthfulness of the witnesses' testimony. The defense proposes that the most efficient way to do this is to allow them to conduct discovery, witness interviews, and any necessary investigation, and then look at scheduling hearings. Col. Moscati is back for rebuttal and the tone continues to heat up between the parties. He says that Kammen is "greatly overstating" the discovery issues and this will not, as the defense frequently requests, move the proceedings along. Further, any 302 forms that the government unredacts will be provided to the defense in November, more than 60 days before the proposed February hearing. The prosecution will also allow the defense to interview or reinterview the seven witnesses before the hearing. And on the question of Bin'Attash, the government will provide the necessary discovery on his detention and treatment. If the defense feels that the discovery is inadequate, it can bring a motion at the December hearing. Kammen provides a brief rebuttal, Col. Moscati adds some additional clarification, and that's a wrap for the November hearings. The commission wil reconvene in December for more motions and hearings.