4/23 Motion Hearings #3: Discovery, Discovery, Discovery

The court returns from recess to consider two defense discovery motions, AE224, seeking information surrounding the facts and circumstances of the death of Abdul Aziz Bin Attash, and AE225, requesting files on the Kuwaiti prosecution of four individuals in 2005 for the attacks on the Lumburg and U.S.S. Cole. On the Bin Attash motion, CDR Mizer explains that Bin Attash was killed in Somalia in 2011 at the hands of the Ethiopian army, which had entered Somalia with U.S. support to conduct counterterrorism operations. CDR Mizer says the government's claim that it does not know the circumstances of Bin Attash's death is "incredible" and says that, just as in the case of Zacarias Moussaoui, it is possible that government agencies are withholding information from the prosecutor. To that effect, the defense is asking the judge to find that it has fulfilled its burden to request relevant evidence so that it may return to court seeking sanctions if relevant documents ultimately surface that the government presently claims do not exist. As the CDR Mizer wraps up the defense argument, Judge Pohl wonders how he can make a finding as to the relevance of the requested evidence without knowing what the evidence actually says. CDR Lockhart rises for the government and continues along this line of argument, noting that the government has searched for the requested information and found nothing on point, fulfilling its discovery obligations with respect to this request. Acknowledging that the defense can seek remedies of relevant documents turn up later, CDR Lockhart says there is no need for a finding of the sort the defense requests. After the quick discussion of AE224, the remainder of the morning session is taken up by a lengthy argument about AE225. Al-Nashiri Learned Counsel Rick Kammen explains that this request comes out of an unclassified FBI document seemingly asking their representative in Saudi Arabia to retrieve information pertaining to the arrest and prosecution of four individuals by Kuwaiti authorities that may have been connected to the M/V Limburg and U.S.S. Cole bombings. Learned Counsel Kammen likens the government's unresponsiveness to that request to a "whack-a-mole theory" for discovery requests, whereby the government both claims that relevant documents are classified while asking the defense to provide greater particularity in its requests. The defense thus requests that the court issue an order  directing the government---including its "various agencies," he stresses---to make a diligent search and produce the requested information. Judge Pohl asks why the defense has not requested letters rogatory for Kuwait and Saudi Arabia to determine whether they have relevant documents, which Learned Counsel Kammen concedes is something the defense might consider at a later date, but which it does not have the resources to conduct at present. Learned Counsel Kammen also makes an offhand comment about how this demonstrates that Al-Nashiri is not receiving effective assistance of counsel, leading to an intense back-and-forth with Judge Pohl over whether the defense team believes it is ineffective and can no longer represent the defendant. Learned Counsel Kammen clarifies that the effective assistance of counsel issues are a problem with the military commission system, rather than a personal or professional problem of the defense team. Once the defense finishes up, CDR Lockhart returns for the prosecution and begins by taking umbrage at the defense counsel's characterization of the government's responsiveness to discovery requests, calling it "preposterous" that the government would withhold evidence of Al-Nashiri's innocence. She then submits the FBI document previously alluded to by Learned Counsel Kammen as an exhibit for the record, which she describes as a "lead," an "investigative request to a foreign government." CDR Lockhart tells the court that the FBI never received a response to this request and so has no additional documents responsive to the discovery request. After a few efforts to clarify exactly what information is contained in this lead, Judge Pohl points out that if the government had evidence that might exculpate Al-Nashiri, it would be required to affirmatively provide that to the defense, regardless of the particularity of any discovery requests. CDR Lockhart replies that the government does not have any such evidence and that none of the government's materials referring to the individuals mentioned in the lead connect them with the offenses alleged in this case. While the lead itself says that some of the individuals are "connected to" or "played a significant role in" the Limburg and Cole bombings, the government does not have any underlying information about how this information was obtained. Learned Counsel Kammen rises for rebuttal and expresses disbelief at the government's story. How can it be that the government sent this lead to Saudi Arabia, but not to Kuwait? Where is the information upon which the FBI based this lead? And did the FBI really let the matter rest when it received no response from Saudi Arabia? It would be "shocking," says Learned Counsel Kammen, "if that's what really happened." CDR Lockhart provides a few more exhibits to put the lead in context, clarifies technical questions for the court, and provides some concluding remarks. Learned Counsel Kammen gives a brief rebuttal, and Judge Pohl calls for a lunch recess before the afternoon session.