Nashiri Motions #16: Wherein Judge Pohl Loses His Cool

Continuing with his discovery blitz, Judge Pohl turns next to AE 044, a defense motion to compel the production of unredacted classified discovery. Lt. Cmdr. Stephen Reyes argues for the defense that the defense has received thousands of pages of classified discovery, which have lots of redactions. Some of this involves partial redactions of words or phrases. Other parts involve pages and pages of blacked out material withheld on relevance grounds. The defense’s position, he says, is that the government can’t manipulate the discovery like this without going through a process. It, rather, has to go through a procedure before Judge Pohl to determine the relevance of the material it is withholding. Judge Pohl seems to have little patience for this motion. If I have two pieces of paper, and one is relevant and the other isn’t, he asks, I am obliged to disclose one, but not the other, right? Reyes agrees. Isn’t it the same if they’re on one document? Reyes responds that if the two pieces of information are on the same document, they have to go to the military judge for review. This makes no sense to Judge Pohl, who notes that the government is making a whole world of relevance decisions about documents. But under the commission rules, Reyes argues, if the government wants to redact otherwise-discoverable documents to keep out classified information, trial counsel must submit a declaration from an agent of the United States. This is prerequisite for deleting information from otherwise-discoverable classified documents. The government has to submit an affidavit and the judge has to look at the document. Is this the same for unclassified information, Judge Pohl asks? That can only be redacted pursuant to an asserted privilege, Reyes responds. So the government has an obligation to give all kinds of irrelevant discovery if it happens to be part of discoverable documents? Yes, Reyes says, the defense has a right to the document as whole. Really? Aren’t you only entitled to relevant discovery? Yes, Reyes concedes, but once the government has made the judgment that the document is relevant, we have the right to that entire document. In basic unclassified discovery, Reyes explains, if the government finds that the document is discoverable, the government produces the document. It doesn’t redact from it. Classified information is different, and there is a specific provision in the rules that covers this. If you are going to delete or redact, there are specific procedures you have to go though prior to deleting that piece of information, he says. He cites Judge Pohl to Rule 505(f)(1)(a). So you’re interpreting this paragraph to say that the government has to get my permission in order to delete irrelevant material, Judge Pohl asks? Material it assesses is irrelevant, yes, Reyes concurs. Judge Pohl is clearly irritated. Let’s review the bidding, he says. With all of these Rule 505 substitutions the government has painstakingly put together for my review, the government has made a decision that this material is relevant and discoverable. The same government has made the judgment that this other material is relevant and so it’s turning it over. But now you’re saying that the same government can’t give you a page while redacting something on that page that it says is irrelevant. I’m not saying that, Reyes says. The Manual for Military Commissions is saying that. Look, in a court martial, Reyes begins. . . . But Judge Pohl doesn’t want to hear about courts martial any more. In fact, he doesn’t want to hear comparisons to other tribunals at all. In every motion, he says, both sides keep tell me how it’s done in other systems. How it’s done in courts martial. How it’s done in federal courts. How it was done in Prussia. It’s not useful any more. Let’s just argue what the facts are. I don’t care any more what they do in the Navy in AWOL cases or what they do federal courts. If you want to cite case law, that’s one thing. But these never-ending anecdotes--let’s move on from that. Reyes moves on from that. His final point, he says, is that giving the government the power to redact material gives it a plenary power over what the defense sees. The rules don’t give it that authority. If it wants to delete classified information, it should follow the rules. And unclassified material, asks Judge Pohl? Is that in another motion? Not yet, Reyes says, but there’s always another motion coming. He sits down. Cmdr. Lockhart says that the government has broad and expansive obligations when it comes to discovery. It is aware of those. We have to turn over exculpatory material, impeachment material, and lots of other stuff, she says, and these obligations are ongoing and continuing. It is the duty of prosecution to make the determination of what is relevant. We have a duty to search government agencies and to determine what is ultimately discoverable and provide that to the defense. Judge Pohl asks her whether the government has an obligation to provide irrelevant discovery. This is the kind of question any trial counsel loves to get. No, she says. Does the government have an obligation to provide irrelevant information if it is in a document with relevant information? No, she says. The rules require that we disclose information, not documents. And there is no duty to provide non-relevant information. Some documents contain both discoverable and non-discoverable information. When that happens, we review the information, and information deemed relevant gets provided. Information deemed not relevant gets redacted. Judge Pohl rules on this one quickly: He finds that discovery is discovery of information, not pieces of paper. The government, he says, has no obligation to provide irrelevant information. The government’s obligation--and does it on its own, he notes--is to provide relevant materials. The government uses its judgment in every case every day in that task. There is no reason to believe that it has not done so in this case. Consequently, the defense motion is denied.