2/21 Motions Hearing #1: Hearsay, After the Fact

It’s on again, y’all.  All parties are present, including Al-Nashiri.  Yesterday, Judge Pohl explains, a Rule 505(h) hearing was held, regarding the parties' ability to make use of classified evidence in open court.  In light of that discussion, the court has determined that, lo, a closed hearing will be required. It will go forward tomorrow, occupy the entire day's work, and obviously not be the subject of Lawfare coverage.

In AE167, CDR Brian Mizer asks the court to implement the Ex Post Facto clause---specifically, by giving effect to 2002 Courts Martial rules regarding hearsay.  (Al-Nashiri's alleged offenses all occurred between 1998 and 2002.)  These were measurably tougher than rules handed down down the road by Congress, and applied these days in the commissions.  Thus Mizer's challenge.

Al-Nashiri’s attorney cites, among other things, Calder v. Bull and Carmell v. Texas.  In the latter, the state had relaxed its hearsay regime, between the time of the defendant’s conduct and his eventual conviction---among other things by eliminating the requirement of corroboration by other evidence, for testimony by certain victims of sexual assault.  (The looser, more recent rule chucked the corroboration requirement for victims under 14.)  Well, the military commissions don’t require any corroboration, when the prosecution seeks to admit hearsay; the courts martial, on the other hand, were a different story back in 2002.  And bear in mind, Mizer says, there’s a lot of hearsay afoot in this case: boatloads of statements by as many declarants, some of them dead, according to prosecution filings.  A shift in the rules of evidence, meant to make it easier to convict, amounts to an Ex Post Facto no-no.  The Manual for Courts Martial, Mizer urges, provides the correct legal framework.  

The military judge wonders about what would happen if he invalidated the Military Commissions Act provisions at issue; what difference would the Courts Martial rules make, if he took that approach?  The lawyer answers by emphasizing Ex Post Facto principles: lowering evidentiary standards seemingly also lowers the government’s proof burden, by making it easier to convict.  Think about it: if suddenly the rules deemed the charge sheet to be evidence, Mizer hypothesizes, well, the court would have no trouble rejecting that.  And while it is true that some older precedents suggested procedural flexibility in commissions' hearsay rules, we know well from post 9/11 cases that such principles no longer hold---think Boumediene, Hamdi, and related cases.  Given this trajectory, there just isn’t judicial precedent to support the rules dilution ongoing now, with hearsay.  It's no way to run a railroad, says Mizer. He thus appeals to proven, time-tested procedures, those established by the historical Courts Martial.  Again, Judge Pohl ponders the way forward, should he wind up opting for Mizer’s proposal.  Some historical hearsay provisions don’t favor criminal defendants, for example---would Pohl wind up applying those, too, upon invalidation of the commissions’ hearsay provisions?  Mizer seems to take the good with the bad, but doesn't ultimately commit one way or the other.  He winds up after a few more minutes.

The Chief Prosecutor, Brig. Gen. Mark Martins, says 949(a) of the Military Commissions Act, regarding hearsay, is not an Ex Post Facto law.  Critically, it does not reduce the quantum of proof required to convict. But it must do so,  he says, in order to run counter to principles announced in Calder v. Bull.  That’s consistent with Hamdan I, in which Article 36 of the UCMJ was at issue.  The Supreme Court there found fault with the “practical need” to depart from Courts Martial rules, so far as concerned the benighted, executive order-based commissions.  But none of the justices supported a rule prohibiting any departures, ever.  Departures indeed are legally permissible, provided they are justified.  And that goes for the rules regarding hearsay---which are well-grounded and were blessed by Congress in the MCA.

As for Carmell, Martins thinks the ruling is consistent with his side’s position: in Carmell, the outcome turned on the elimination of a corroboration for certain assault victims. But the statute there explicitly changed the quantum of proof required, and thus triggered an Ex Post Facto problem. Not so under 949(a) and related rules, which don't affect the standard prosecutors have to meet, in order to win a conviction.  (He adds that Justice Kennedy's Hamdan concurrence faulted some hearsay “rules” employed by executive-order commissions: no reliability requirements, the ability of the panel to overrule the presiding officer’s determinations about evidence, the absence of a military judge, the admissibility of unsworn declarations, and so on.  Contrast this cockamamie stuff with the current statutory rules: now, among other things, reliability is required, and hearsay can only be admitted in the interest of justice, by the court.)  Martins sums up.  There’s no Ex Post Facto problem.  And no Guantanamo accused had a right vested in the preservation of courts martial hearsay rules, at the time of their conduct.  The Chief Prosecutor concludes by describing the hearsay at issue: one item concerns the leasing of property at the time of the offense, and is independently corroborated by other evidence.  Admitting that stuff wouldn't offend basic fairness, he says.

Mizer doesn’t quarrel with the President’s power to make rules a la Hamdan I, he says.  No, he is concerned instead with the creation of evidentiary rules, after the fact, that take the sufficiency of required proof down a notch.  Moving to Carmell, Mizer emphasizes the fundamental fairness interest emphasized in that ruling.  We’re talking big-time unfairness here, your honor. Mizer returns to counsel table.