8/4 Session #5: Things 120, Part Two

CIA discovery---the subject of Judge Pohl’s ruling in AE120C, and a subsequent order on reconsideration---is still before us. In motion AE120BB, the defense seeks a timeline for getting its hands on such discovery under Judge Pohl’s order. Maybe AE120BB will be moot in time, forecasts Al-Nashiri’s Learned Counsel, Richard Kammen. In the event that it won’t be, though, perhaps some procedural history is in order. Kammen mentions the government’s intention to produce summaries of classified discovery to defense counsel---rather than the underlying discovery itself. This, in Kammen’s view, encompasses a subtle but important procedural difference between Rule 505, in the commissions, and the Classified Information Procedures Act, in federal court. Importantly, and unlike in federal settings, military judges cannot reconsider the adequacy of such a summary, even when more classified information comes to light and undercuts the summary. Judge Pohl had addressed this by permitting the defense to seek more discovery, and to make subsequent argument to the court, in order to demonstrate a summary’s inconsistency with newly produced discovery. That is the overarching problem, in Kammen’s view: the summaries so far have been virtually useless. That’s where more discovery, and 120BB, both come in. Of course the defense understands the prosecution’s position, that it is dependent upon other agencies---which can greatly influence the speediness (or sluggishness) of a document request’s fulfillment. But here’s the thing: this capital military commission can’t really go forward until discovery into the CIA’s rendition, detention and interrogation (RDI) is complete. And right now, the prosecution has promised an iterative, back-and-forth discovery process---one which, in Kammen’s view, implies a slow trickle of discovery, right up to the eve of trial. That’s a nonstarter.  As a workaround, the defense proposes a timetable for prosecutors to use. “Dates tend to get decisions,” Kammen explains. So let’s get a compliance schedule for the government, so as to encourage those decisions in executive branch agencies, and to get more discovery turned over.   The Chief Prosecutor Brig. Gen. Mark Martins responds to Kammen with an “alternative account”---that is, a correction of several perceived errors in Kammen’s arguments. First Martins acknowledges his side’s obligations, under discovery rules generally, and under AE120C (and its later cousin, AE120AA)---and says prosecutors are working hard to meet those, seven days a week. For example, prosecutors have worked to allow Al-Nashiri to be shown some discovery on a “display only” basis.  Second, he says he certainly doesn’t and didn’t mean to suggest that further discovery in Al-Nashiri would be protracted or prejudicial to the defense; in suggesting otherwise, Kammen had latched onto a stray remark Martins had made, in making a larger legal argument about classified discovery rules. As for mechanics, the Chief Prosecutor next emphasizes that material can’t be classified simply to avoid embarrassment; and that the military judge plays a substantive role in managing properly classified discovery---in particular, by means of the procedures under Section 949-6(d) and (f) of the Military Commissions Act. Argument made, Martins comes to the nuts and bolts. The Chief Prosecutor proposes to provide the court with an update on 9 September, both to report on where things stand on AE120 discovery and to show compliance with all ten paragraphs of Judge Pohl’s order in AE120C. That’s suitable relief, in his view, given the prosecution’s efforts at good faith compliance.  (Martins adds that he would oppose any effort to put the case on “pause,” pending the completion of discovery.) Kammen wonders where he ought to begin; there’s seemingly a lot for him to say, though the defense attorney observes that some argument here must be made in a closed setting.  (Apparently there will be a Rule 505(h) hearing, regarding how to handle classified material, later today.)  At any rate, Kammen lays into the rebuttal, beginning with the defense’s difficulty in challenging prosecution claims regarding classified stuff. The prosecution refuses to provide, even in a classified setting, analysis of many key declarations furnished to the military judge and justifying the assertion of national security prerogatives. For his part, though, Kammen is skeptical: what he has seen has convinced him is that many such declarations are laughably unfounded. So it is cold comfort for Gen. Martins to claim that stuff can’t be made classified to avoid embarrassment; as suspicious as that claim is, there’s no way open to Kammen to test it. The Learned Counsel goes on: under the rules, the defense can’t seek reconsideration of a ruling on the adequacy of a summary, even when the summary can later be shown to be false.  And while Kammen and company can make ex parte submissions, in seeking to show inadequacy, that all depends on access to the underlying classified discovery.  And that means hurrying up, on a timetable, given looming deadlines as the case inches towards trial.  This plays into a quick argument about resourcing: Kammen argues that his team has lost lawyers, but that the prosecution has continued to grow its staff. His crew thus doesn’t have the resources it needs to quickly prepare some of the complex submissions required in classified discovery litigation.  Kammen closes by doubting the Chief Prosecutor’s assurances about future discovery: past discovery, argues Kammen, has been duplicative already in some places. The Chief Prosecutor smells some agreement among the parties: he welcomes any review of the equality of resources as between prosecution and defense, provided that the review is comprehensive.  But “equitable resourcing”---the legal standard---doesn’t mean an identical roster of personnel or cache of money, but instead an appropriate allotment according to prosecution and defense functions.  Martins adds a note on reconsideration: you, Judge Spath, are seeing the underlying material, while having theories of the case in mind.  (The idea is seemingly that the court can police summary matters, even before input from the defense.) Finally, the Chief Prosecutor emphasizes that the parties can, and should, move the case forward while resolving discovery matters arising under AE120C. Ever briefly, Kammen replies to Martins’ reply in three respects, first by emphasizing the scope of AE120C. Secondly, he observes that his side cannot push forward to other case milestones---like September‘s looming motions deadline---while testing summaries against classified discovery as it comes in. His side could not, for example, do the necessary document review and prepare any needed pleadings in less than a month. Here Kammen stresses that Judge Pohl’s ruling was handed down in April; his side isn’t responsible for the cramped timetable now. He thus asks for “leeway,” as he puts it---preservation of existing calendar dates, with the understanding that further adjustments might be necessary.  On resourcing, Kammen is seemingly just as confident in his position as Martins is in his, and thus likewise insists that any assessment be comprehensive. Our day ends on an odd sartorial note, with the defense asking for written guidance as to what items they can and cannot bring into the Guantanamo courtroom. This hasn’t been an issue heretofore, but became one recently. Kammen was denied his cufflinks; Jackson, her earrings.  That marked a change, Kammen complains. The rules are constantly changing, and thus the lawyer asks for help in keeping them constant.  The prosecution says it will seek some such help. Now open proceedings conclude, and the parties retire to a Rule 505(h) session.  (Kammen: isn't it weird that we now can display discovery to Al-Nashiri, but bring him to the Rule 505(h)?)