4/22 Session #3: Confrontation

The Guantanamo lunch hour closes; the military commission resumes, court and counsel first turning their collective attention to some procedural odds and ends.  One item raised by Al-Nashiri’s Learned Counsel, Rick Kammen: Nancy Hollander’s status on the defense team, and the need for an evidentiary hearing (and thus, resolution of her position vis a vis Al-Nashiri).  Kammen wants to get to that pronto, hopefully this week.

The other item: the FBI’s investigation into defense counsel in the 9/11 case.  The latter is an eyebrow raiser, given that, contrary to earlier suspicions, it appears that the FBI’s inquiry is not focused solely on Khalid Shiekh Mohammed’s communications with third parties.  No, apparently, the investigation sweeps more broadly---and thus might well touch on this case. To be sure, Kammen’s crew hasn’t been contacted, he says; but on the other hand, the FBI hasn’t said that Al-Nashiri’s defense team won’t be, either.  Kammen thus plans to file an emergency motion to look into the matter, much as defense counsel in the 9/11 case have done.  Be on the lookout.

On to the substance, and, in particular, to AE109D.  In brief, the defense therein once more asks the court to take judicial notice that the Sixth Amendment right of confrontation applies to military commissions.  The motion derives from the government’s own assertion, Kammen claims, that trial rights must be litigated one at a time, as they arise, with reference to particular constitutional language. (The commission had rejected a broader defense motion in this regard earlier.)  Kammen is vexed: he still doesn’t have a good sense of what confrontation rights come into play, despite the case’s nominal advance towards trial in (perhaps) December of this year.  Until he gets a better sense, he can’t allocate resources effectively.  That problem is especially profound, given the role that hearsay witnesses from Yemen are quite likely to play, come trial time. Reportedly, some 66 hearsay witnesses may testify.  Well, then, how is the defense to proceed if, say, FBI Agent Smith simply shows up and reads aloud from a report, about what a Yemeni did or did not say?

The confrontation right makes American trials reliable, Kammen intones.  But the prosecution doesn’t want to apply that right here---despite its evident embarrassment about saying so openly.  A mega-hearsay case, suffice it to say, won’t be reliable.  And, Kammen insists, the defense's challenge is ripe, the prosecution’s objections notwithstanding.  Resource allocation decisions have to be made now, not down the road, when witnesses are called to testify to hearsay.  Kammen's proposed approach would make for easier sledding, by insisting upon earlier identification of what witnesses’ testimony would fall under a traditional exception to the hearsay rule; and of any “testimonial” hearsay in that testimony, for purposes of Crawford v. Washington.  The lawyer urges the court to resolve the issue now, and not to delay any further.   

The Chief Prosecutor, Brig. Gen. Mark Martins, provides context. There are three motions at issue here: a motion to take judicial notice (which was argued last June but now has been renewed); a motion regarding notice to the defense of the prosecution’s use of hearsay (which the prosectution has addressed, in Martins’ view, by informing defense attorneys of the prosecution's plans); and the trial scheduling order.  When asked, Martins doesn’t say whether the confrontation issue is ripe---though he acknowledges a defense objection, founded on the Constitution, to the use of hearsay.  All that remains, in the Chief Prosecutor’s view, is for Kammen and company to formalize that objection within the timetable set by the Military Commissions Act.  (He adds that the hearsay at issue is clearly testimonial under Crawford.)

With that said, Martins says he thinks that the challenge here requires specific facts before it can be adjudicated.  To resolve it, the commission would have to get into whether a declarant’s statement was indeed hearsay; whether it was voluntarily given; and so on, as required by the statute.   The court wonders whether Martins has in mind a “statement by statement” analysis; the Chief Prosecutor seemingly answers yes, given the defense’s broadside, generally, against his hearsay notice.  For its part, the court seems to discount Martins’ ripeness claim, noting that the statutory hearsay rules are either constitutional or not, on their face.  The Chief Prosecutor says he is comfortable with that characterization, though he again notes that, on June 30, the parties in any event are set to confer about any objectionable items put forth by the prosecution---including its hearsay notice.  The confrontation dispute can get resolved then, Martins seems to say; all that remains is to fit it into the case’s litigation schedule.  At any rate, he argues that the procedures in the MCA are constitutional.  He makes a few concluding points and sits, emphasizing all the while that the case’s trial---and corroboration adduced during it---will demonstrate the process’s reliability.

Reply from Kammen, who cuts to the chase: he wants a decision.  If the court decides that the statute trumps the constitution, then fine, so be it; likewise if the court decides that its the other way around.  But make no mistake. American notions of hearsay, under Crawford, aren’t just about reliability; they’re about hearsay exceptions, which are exceedingly narrow.  If a hearsay statement doesn’t satisfy an exception, then the statement doesn’t come in, period---whether reliable or not. Kammen adds a note of doubt that any wartime conditions or battlefield circumstances justify a departure from confrontation procedures in military commissions. “There’s no need to throw out the Constitution,” he says---see Ghailani, in the Southern District, or Ghaith, in the same court.  He adds that many of the prosecution’s hearsay witnesses won’t be available, at trial, because the government opted for a long delay in trying the case at Guantanamo; or because the government has killed at least one would-be witness.  A few more arguments follow, and Kammen recapitulates: give us your ruling now, Judge, one that lets us know what commissions really will look like at trial. But bear in mind that death penalty trials are supposed to be more reliable, not less.