8/4 Motions Hearing #4: Things 120, Part One

And lo, defense motion AE120S is before us. In it, the defense moves to compel production of an index of outstanding and denied discovery. But its not just any discovery we're talking about, as Capt. Daphne Jackson explains: no, this index concerns the discovery, ordered by Judge Pohl in AE120C, into Al-Nashiri’s quite secret and unlawful mistreatment at various CIA black sites. At issue is the commission’s reminder to the prosecution, in a prior order, of the latter’s continuing obligation to hand over discoverable material, even where that material is classified---including material covered by AE120C. Well, says Jackson, prosecutors have provided some responsive discovery under AE120C---but not all discovery.  And we can’t tell what’s what, either; oddly, the prosecution appears to be saying that any CIA discovery it hasn’t turned over is: a) already in the defense’s hands, buried somewhere in stuff prosecutors gave to it before; or b) can’t be discovered anyway, notwithstanding Judge Pohl's ruling. Thus AE120S: in Jackson’s view, prosecutors should be obligated to make a specific itemization of what discovery it has provided and where, and an explanation of what is and is not forthcoming. Without such a catalog, she and her colleagues are at a great disadvantage in preparing Al-Nashiri's defense. Prosecutor Mikeal Clayton speaks in rebuttal, beginning with the finer points of discovery under federal civilian and military commission rules. His gist: the defense here is seeking something much broader than discovery in any traditional criminal case.  Even Rule 16 of the Federal Rules of Criminal Procedure wouldn’t require the sort of road map Jackson describes.  The prosecution, insists the lawyer, has met and continues to meet its discovery obligations.  When asked, Clayton pledges to provide the defense with a list of likely witnesses and evidence---something that, he seems to suggest, would mitigate any risk of surprise for Al-Nashiri’s attorneys down the road. Seeking to bolster his points, Clayton adds a riff about the SSCI report: he says the prosecution has been actively working to get SSCI materials into the defense’s hands. Similarly, the government has identified in other pleadings materials it intends to use at trial---in motions to “pre-mit” evidence, for example. Such things offer useful guideposts for Jackson and company, in Clayton's opinion. Lastly, Clayton scoffs at the defense’s repeated claims of resource disparity: in fact, he says, Al-Nashiri's is a well-resourced defense team, almost as big as the mid-sized US attorney’s office from which Clayton hails. The prosecutor concludes by urging the court not to grant discovery in excess of that required by law. Well does what does that require?  More than what the defense has seen, in Jackson’s view. We have an order from this court, stating that the defense is entitled to classified discovery into the CIA’s mistreatment of Al-Nashiri.  Yet despite that entitlement, the prosecution hasn’t fully handed over discovery under AE120C, and even gone on to suggest that some such material isn’t discoverable at all.  Meanwhile, argues Jackson, the government has suggested that several previously produced discovery items effectively capture discovery described by AE120C---that Al-Nashiri’s medical records, for example, amount to evidence of the “learned helplessness” instilled in him by CIA interrogators. Jackson adds that a list of anticipated trial materials isn’t sufficient: this is about defense discovery, not what the witnesses or documents the government ultimately will use in its case.  She wraps up. To be clear, Clayton says the government will indeed comply with all orders in the AE120 series.  His clarification made, we pause for a recess.