Nashiri Motions Hearing #15: Going Rogatory

Judge Pohl calls the commission back to order at 11:00 am to discuss AE 054 and AE 057--two motions to compel discovery from potential witnesses in Yemen and the U.A.E. At the in-chambers conference, Judge Pohl explains, the parties discussed this issue, which implicates classified information that can’t be discussed in open court. But both sides agreed on the way to handle it--using letters rogatory as an initial step to seek the information. He asks both sides to verify that this is right. Speaking for the defense, Maj. Allison C. Danels points out that there is a special issue with respect to Yemen, because there is an agreement between the two governments. That agreement, she says, can be used to request the information the defense is seeking in discovery. Judge Pohl asks what mechanism other than the letters rogatory would be used to enforce this agreement. Is she just asking that the letters rogatory specify that they are asking for this pursuant to the agreement? Danels says she doesn’t mean just requesting it pursuant to the agreement, but also asking for reasons if the requests are refused and for follow-up under the agreement. What if the Yemenis refuse, Judge Pohl asks? Then the government should use the mechanisms available to it under the agreement, she says. Judge Pohl says he is not sure what this means. We want you to compel the government to request the information, Danels responds. You can’t compel the Yemenis. You can compel the government to request things of them under the agreement. What is the difference between that and the letters rogatory, Judge Pohl asks. Wouldn’t that have to go through the State Department too? Yes, Danels affirms. So is this just about how the letters are worded? Yes, she says. But Danels also says that she wants him to order the government to, in sending the letters rogatory, use the same diplomatic efforts it has used to get depositions in Yemen. I have no idea what that means, says Judge Pohl. Danels says she doesn’t have any idea what it means either. But the government knows what it means, she says. It says it is using diplomatic efforts in Yemen to get depositions. We are just asking it to use the same efforts in these letters rogatory. She sits down. Cdr. Andrea Lockhart for the government speaks only briefly. The government does not object to letters rogatory, which are the proper means for seeking this discovery. We do submit, however, she says, that any response or lack thereof from any country is what it is and is not really subject to our control. We’re left with that response. Also, she says, the draft letters rogatory were only provided in the defense’s reply. So Lockhard asks for a chance to review it and consult on the text. Judge Pohl verifies with her that all relevant information been provided to defense, and she affirms that it either has been or is being provided. Judge Pohl then rules: the defense motion to compel discovery is granted, though he notes that the word “compel” here is a little strong given that we’re dealing with a foreign country. The government can consult on the text of the letters rogatory.