2/24 Motions Hearing #2: Capital Punishment & Classified Evidence

The next motion before the court is AE 181, a defense motion to dismiss the capital punishment referral for all the charges against Al-Nashiri on Due Process and Eighth Amendment grounds because he will not be granted access to classified evidence relevant both to the charges against him and, subject to conviction, to mitigation at the penalty phase. Because at least some of the necessary information for this motion is classified, the court determines at the start that part of the hearing on this motion will be conducted in closed session. Learned Counsel Rick Kammen explains that in criminal cases the accused has a right to make certain decisions as to his own defense and, especially in a capital case such as this one, defense counsel is obligated by professional responsibility rules to consult with the defendant prior to trial. Kammen calls the "improper classification" of fourteen percent of the evidence requested by the defense on discovery "a structural impediment" to the effective assistance of counsel in this case that places defense counsel "in a professionally complicated position that . . . will require every member of the defense team to consult with their individual ethics state bar authorities." Kammen distinguishes this case from cases before Article III courts featuring classified evidence because, in those courts, classified evidence is often reviewed by specially cleared counsel and then digested into an unclassified summary that is available to the entire defense team. In Al-Nashiri's case, however, the classified material is "completely withheld" from the defendant and Kammen floats the possibility, despite the prosecution's protests to the contrary, that Al-Nashiri could even be excluded from parts of his own trial when classified material is discussed. After a 15-minute recess, prosecutor Justin Sher rises to argue the government's position, starting with an assurance that the government's case in chief (and, as Sher later reveals, presentencing) against Al-Nashiri will be "completely unclassified." Sher next makes the analogy to classified evidence used in federal civilian courts, noting that "courts consistently hold that . . . an uncleared accused may not access classified information in pretrial proceedings." Judge Pohl asks how the court should handle efforts by defense counsel to both introduce classified evidence in its case in chief, as well as discuss such evidence with Al-Nashiri while preparing its case in chief. Sher responds that, at trial, the court and government would work through the Rule 505 process to determine whether the defense could present classified evidence with the defendant present; however, defense counsel cannot present such evidence to Al-Nashiri pretrial. Further, says Sher, the defendant may discuss classified evidence with his attorneys to the extent that he knows that information already. Kammen returns for rebuttal, again distinguishing this case from various federal civilian court cases in which defense counsel or the defendant had access to unclassified summaries of classified evidence. Kammen also rejects the government's argument that defense counsel may discuss classified evidence with Al-Nashiri once he affirmatively raises it with counsel. He points out that "real lawyers" do not simply ask the defendant to "tell me what you remember," but instead consult with the defendant based on the evidence presented against him. The heart of Kammen's rebuttal focuses on the ability of defense counsel to present classified evidence as part of its case in chief. While he accepts the Rule 505 process upon presentation of such evidence by the defense, Kammen focuses on Sher's comment that, after the 505 litigation, "the ball . . . is in the government's court." Judge Pohl asks Sher to return to the podium to respond to a hypothetical situation in which, after the 505 process, the court determines that classified evidence is admissible and there are no adequate substitutes or stipulations. After expressing his belief that such a circumstance, given the number of available remedies, is incredibly rare, Sher says that the defendant would likely be able to hear the evidence presented by defense counsel in court. Kammen further points out that such a process for defense counsel revealing classified information would make cross-examination particularly arduous where Al-Nashiri becomes aware of classified evidence against him for the first time at trial. With that, the court moves on to the next motion with the intention of returning to AE 181 in closed session.