4/23 Motion Hearings #2: In Defense of Ex Parte Letters Rogatory

Next up is AE223A, a government response to a defense request that Judge Pohl authorize ex parte letters rogatory---essentially letters from the court to a foreign government seeking assistance in obtaining evidence and witnesses. Although the pleading in question is the government's response, Al-Nashiri lawyer CDR Brian Mizer rises first to explain exactly what it is that the defense is seeking in its underlying motion for the letters rogatory, AE223. CDR Mizer says that the letters are destined for the French government in connection with the M/V Limburg. Further, the defense would like the court to issue an order preventing the State Department, which by law must be involved in relaying such letters, from showing the content of the letters to the prosecution. CDR Andrea Lockhart explains that the government does not necessarily object to the underlying motion, but rather objects to the ex parte nature of the request and seeks an opportunity to learn more about what evidence the defense seeks. This is not only important so that the government knows whether it should object to the request, but also to allow the government to comply with its discovery obligations and protect classified information. In fact, CDR Mizer's statement this morning is the first time the government is learning the precise contours of the defense's request. Allowing the defense request to proceed ex parte is also problematic because the letters rogatory are transmitted to third parties, such as the State Department and French government, so they cannot be privileged. In sum, the government requests details from the defense as to which documents the defense seeks from the French government to determine whether they contain classified information, as well as more information about the potential witnesses with which the defense wishes to speak. CDR Mizer returns simply to note that there exists no case law or other authority on this issue because ex parte letters rogatory are so common and noncontroversial in federal district courts that no court has addressed the issue in an opinion. And so the defense asks that Judge Pohl treat this request not like a court martial, but rather like a district court. Judge Pohl quickly clears up a few technical questions about how the letters rogatory, which the defense notes is modeled off of the standard letter issued by federal district courts, might be affected by the differences between Article III courts and the military commission. CDR Lockhart, continuing with Judge Pohl's line of questions, notes that standard letters rogatory promise that the government will pay for any expenses incurred by the foreign government in transmitting the requested evidence, which may be problematic for the military commission without an appropriation from Congress. Especially given this wrinkle and the potential effect that a refusal to pay may have on US-French relations, the prosecutor insists that ex parte consideration of such motions in inappropriate. At the behest of Judge Pohl, CDR Mizer rises one last time to promise that in the event any expenditure of funds is necessary as a result of the letters rogatory, the defense will transmit that request to the convening authority before making any commitment of funds. After a few more words of rebuttal from the prosecutor, Judge Pohl says the court will revisit the issue later in the week after the government has had some time to consider the information disclosed today by CDR Mizer. And with that, we have a brief recess.