2/21 Motions Hearing #10: Sequestration and Judicial Notice

There are two more significant motions up today, the first of which Navy Lt. Paul Morris presents ever briefly.  In AE200, prosecutors have asked the court, in advance, not to exclude victims from sequestration during the trial’s penalty phase.  The people in question wouldn’t be merits-phase witnesses, either---though they might wind up being penalty-phase witnesses.  After a quick discussion, Judge Pohl grants the request in principle, on an interim basis, while reserving final decision for when, at last, we draw near to trial.

After some easily-skipped-over procedural bickering, we move to AE186---a prosecution notice to take judicial notice of certain adjudicative facts. As Lt. Morris explains, the rules allow this, when facts are generally known or beyond reasonable dispute.  It seems we have at least some dispute here, given the defense’s opposition; at any rate, Lt. Morris explains that the government asks the court to take notice of six essential facts.  (He adds that the members remain free to accept or reject prior judicial notice---something Judge Pohl visibly doubts.)  Among other things, the facts concern Bin Laden’s issuance of his two famed fatwas, one in 1996 and 1998; the United States’ 1998 attack on Bin Laden’s training camp; the issuance of an executive branch order, also in 1998, designating Bin Laden and company as terrorists; and the location of a hotel in Aden, Yemen.   When asked, Morris tells Judge Pohl that many of these items bear directly on the “in the context of and associated with hostilities” element, which is common to all the charged offenses that the prosecution must ultimately prove.  Morris then ticks through each asserted fact, noting all the reasons why they simply cannot be disputed reasonably.  It is not enough, for example, to nitpick about the details surrounding the United States’ 1998 missile strike against Bin Laden, as the defense does in its pleading.

All this, to Kammen’s eye, represents nothing more than an attempt to grease up the machinery of death.  No civilian court would allow for judicial notice in a capital case like this.  Prosecutors haven’t attached any original documents, either; instead, he says, we have a translation of the original, produced by some unnamed person under uncertain circumstances. Certainly that much is grounds for reasonably dispute.  Kammen then pounces on Morris’s “hostilities” point; under such circumstances, judicially noticing the fatwas would effectively direct a verdict against Al-Nashiri on the hostilities question.  Recall that President Clinton himself called the Cole episode a “peacetime” attack---something Kammen’s crew had planned to highlight at trial, but obviously couldn’t, if the existence on the existence of “hostilities” had been judicially noticed in advance.  For heaven’s sake, venue is never a subject for judicial notice; how could an element of an offense be?  

Kammen feels roughly the same way about other stuff in the government’s filing.  Still, he's agnostic about some materials; the Learned Counsel says he has no idea about the relevance of the hotel’s coordinates, for example.  (The prosecution asks to take judicial notice of its location, as determined by Google Maps in 2013; the conduct alleged in this case spans the years 1998-2003.)  Suffice it to say: the defense finds the government's request to be inexplicable in some places, and wholly inappropriate in others.