Nashiri Motions Hearing #17: Give it to Me in Arabic

Lunch ends, and we return to argue over AE 038 - or, as better known to docket-watchers, the defense’s motion to compel the timely translation of discovery into Arabic. Reyes begins by informing the court that as of January, the defense had received roughly 60,000 pages of documents which the defense could show to Al-Nashiri. The prosecution advised, Reyes says, that the total production would be around 150,000 pages.  The trouble is that Nashiri does not speak English, the language of the produced materials.  He speaks only Arabic. Thus the motion for timely translation. Reyes had immediately asked the Convening Authority to order these materials to be translated by April, so that the defense would have the benefit of Nashiri’s input by the time of the present hearing.  The Convening Authority began to move that process along, but then Reyes declares, found out how much it was going to cost and denied the request. He was told, he says, that the defense would have to rely on translators working at the Office of the Chief Defense Counsel. But there were only three such people, and they can only work so fast: 15 pages could be translated per day, with quality control. Thus, Reyes continues, the Convening Authority has forced us to rely on in-house help, at this glacial pace, for a production consisting of 150,000 pages. Reyes says he is not a mathematician, but that’s about 7,200 pages per years--which means decades to pull off the entire haul. Reyes’s motion seeks to alter that, by specifically asking for timely translation so that the documents can be reviewed within the next six months. This is by no means a delaying tactic, Reyes says; he has no choice but to reach out to the court, in light of the Office of Chief Defense Counsel’s limited resources. The matter is made all the more urgent by the possible imposition of the death penalty, the possible admissibility of hearsay evidence, and the fact that OCDC has limited resources. The government’s investigation took place ten years ago, involved hundreds of FBI investigators. All we are asking is that he be given discovery in a form that he can read so he can assist in his defense, Reyes says. The Convening Authority’s decision is ultimately about cost, Reyes says. But if a half million dollars can be expended on building a web site for the military commissions, we ask that the necessary resources be used so that Nashiri can read this material. Judge Pohl rejects this argument. If we hadn’t spent a half million dollars on a web site, you would be here anyway, he says to Reyes. The issue is whether you have a right to this. If you do, then cost is not the issue. Reyes agrees. Judge Pohl goes on. For whatever reason, the Convening Authority turned you down on this, and you want me to order the Convening Authority to give you these resources. What is the legal basis for such an order? Reyes says it is the constitutional right to due process, to the effective assistance of counsel, to assist in one's defense, and to review the evidence against him. Is there any case authority for your position, Judge Pohl asks? Reyes says that in his brief, he cited to a case from the Eastern District of New York--the key analysis in which involved the complexity of the case in question. In a complex case, he says, it’s necessary for translations to occur. He also cites the death penalty jurisprudence in courts martials, and the Supreme Court’s rulings on the need for heightened reliability in capital cases. You cannot have a more complex case than the one you have now, he says. Judge Pohl is unimpressed. Those were Spanish-speaking defendants in a narcotics case, he says. The case involved 18 separate defendants and one translator. It hardly seems equivalent to what we have here with one accused who has four experienced attorney. Your legal basis is that one case in the Eastern District of New York? Also the death penalty cases, Reyes says. Is there any death penalty case on point, Judge Pohl asks? I agree with you that death is different, but do you have any death penalty case that would support the specific relief you’re asking for? Reyes responds that in death penalty cases, you don’t see this issue arise because such motions are routinely granted. Judge Pohl asks: Is there any evidence that it’s routinely granted? Reyes responds that this is what he hears from the experience of learned counsel, Richard Kammen. Kammen, Judge Pohl says, is not a witness. Do you have cases? Judge Pohl says he has a D.C. Circuit Court of Appeals decision that seems to address this issue. It’s not a death case, and I understand that death is different. But I also see four lawyers representing this one defendant, all of whom can read English. I just don’t see the source of authority for your position. Reyes says that if Nashiri were defending himself pro se, he would get it this material translated. Judge Pohl is unimpressed: Are you saying he’s being penalized for not being a pro se defendant, for having four lawyers to represent him? In terms of his ability to read the information being provided him in discovery, Reyes says, yes. Lockhart rises for the government and says that the defense wants to make this issue one of costs. But it’s about the law, she says--its current state, what’s required, and what’s permissible. No statute, law or case law requires the government to translate discoverable material into a language the accused can understand. He has a right of meaningful participation in his defense. That does not mean he has the right to read every single document. Lockhart rejects the defense’s precedent from the Eastern District of New York. That case involved 18 separate defendants, all of whom got one linguist. And the court’s holding was that certain specific documents had to be translated--so the defendants could understand the charges against them and understand the proceeding. In this case, that has already occurred. The charges against him were given him in his native language. The D.C. Circuit case Judge Pohl cited, she noted, was not a simple case either. It was a complex conspiracy case, she says. Yet the court found that translation of discovery was not required. The defense has six translators, Lockhart says. It has a duty and an obligation to use those resources wisely. Every page in the defense’s possession does not need to be read by defendant. He has a right to review evidence against him. But not all discovery is going to be evidence against him. She sits down. Reyes rebuts briefly. At the end of the day, Nashiri is asking whether he can review the evidence against him. Can I review the evidence the U.S. has given you in this case? This is an individual from Saudi Arabia detained by the U.S., who then has lawyers thrown upon him--one wearing a uniform, Reyes (in his uniform) says. There is always the issue of trust involved, as well as the issue of access to evidence. The government is saying that we will look at the evidence for you and give you what we think is important. He is asking, can I review that evidence? If he spoke English, the answer would be yes. but here, in this death penalty case, the answer is no. It is that I’m going to look and see and give you what you’re going to get. Judge Pohl then rules: The commission, he says, finds that accused is represented by four experienced counsel. It also finds that there is no constitutional right to the written translation of all written discovery. Even assuming he has constitutional rights, like anyone in federal courts, he would not be entitled to these translations. As the D.C. Circuit put it, there is no support for such a claim. Judge Pohl agrees that the court has discretion to provide such services, but the defense has not shown the need for it. Consequently, the motion is denied. If there are certain documents that are essential, he suggests looking at that separately. Kammen briefly rises to say that what he describes as a patently unfair ruling denies his client a raft of constitutional rights, statutory rights, and treaty rights--and that it violates fundamental fairness as well. The court moves on.