Nashiri Motions Hearing #18: Getting Another Investigator

You probably have been saying to yourself, all morning and afternoon, “when will we ever hear argument on motion AE40, the defense’s request to compel funding for a Yemeni defense investigator?”  Your wait is over. Judge Pohl’s prior ruling visibly has soured Kammen, who rises and promises to be brief. (Glued-to-the-screen readers will recall that the defense lawyer described another of the judge’s decisions, handed down moments earlier, as patently unfair.)  Congress required learned counsel in these proceedings, so that the court could benefit from my experience.  But, Kammen laments, the court seemingly is not interested.  What a minute, says a perturbed Judge Pohl, that is not what I said.  I said I have today heard many anecdotes about experiences that I have no evidence of.  I am always willing to listen, Judge Pohl continues, but I am not interested in uncorroborated anecdotes as evidence.  Do you think that unfair, Mr. Kammen? The lawyer doesn’t say, but again refers to Congress’s purpose in requiring learned counsel for cases such as this.  The court agrees with Kammen on that point, but wonders if that means the court must listen to Kammen describe his prior experiences in other cases, in the course of supporting his arguments in this case.  Kammen’s answer: if it is relevant, yes, you do have to listen to my anecdotes.  The court struggles.  How can I use that, Judge Pohl asks.  Do you become a witness in the case? There is no response.  Then Judge Pohl says he respects Kammen’s experience, but requiring the appointment of lawyers with relevant subject matter background is quite different than requiring commissions to hear argument by anecdote. Argument is permitted about the law of course, so Kammen moves to the MCA - which, as Kammen reads it, says that the defendant must have the same access to evidence as he would in an Article III court.  Under death penalty law, the defense lawyer’s obligation is to seek a fact investigator.  Indeed, under that law, cited in Kammen’s brief, the defense has a right to a fact investigator.  Frankly, says Kammen, we are at a crossroads.  His frustration brims, and the lawyer says, if you don’t want Al-Nashiri to have effective assistance of counsel, then you should deny the motion.  That sure ups the tension factor.  Judge Pohl responds sternly: I rule on the merits, Mr. Kammen, and I do not appreciate your reference to the assistance of counsel.  And, he says while calming matters a bit, I haven’t ruled yet on your motion.  Hold on for a while. You may be surprised. The court wants to explore the CV of the defense’s proposed investigator, who, if provided, would work for three months.  Judge Pohl observes that this person is an attorney and self-identified human rights activist.  He also works in “political engagement,” and was reportedly among the first to call for President Saleh to leave power.  The court is not making any judgment, of course, but it is certainly curious about this choice: the man is not a trained investigator.  Will he really suit your purposes?  Kammen says the person is the best the defense has been able to find, given the time alloted to do so.  The Judge pauses to note that the question of the investigator’s adequacy could be revisited later. Kammen yields the floor to Lockhart, who summarizes the three-part legal test for the appointment of an outside investigator: one, why is an investigator needed; two, what will that person do; and three, why can’t the defense team perform those tasks without the expert’s assistance?  She then recites the chosen investigator’s lack of experience: he has no investigative skills, she says.  That’s true, says the court, but if the defense is satisfied, then why should I substitute my judgment for theirs?  On this point, Lockhart asks for some leeway, but promises to provide the court with an answer shortly. Getting there, the prosecutor says that the defense’s request might be reasonable, if they had no outside investigative help.  But they have asked the Convening Authority for, and received, two investigators already.  She begins to recite the credentials of the first such person, an American Muslim lawyer, when Kammen objects to the revelation of that investigator’s identity.  Judge Pohl understands the issue and sustains that request.  Lockhart moves on.  In the defense’s papers, she says, they state that the investigator may be asked to help find resources in Yemen.  But if that is their goal, then they can get that already from their investigative team - which Lockhart adds, includes a full-time investigator.  So that’s three investigators in all; granting this motion will add a fourth. Judge Pohl is curious about the full-time person.  Does he or she speak the language in Yemen, which, he confesses, he cannot name? No, answers Lockhart.  Is the full-timer a Muslim?  Again, no.  Lockhart emphasizes, however, that the current team has someone with cultural sensitivities and skills, as well as a linguist.  Again, she says, how does the defense meet the third of the three-part test under law?  The new investigator won’t help them do anything they cannot do already.  Judge Pohl with another fast salvo: this offense occurred in October 2000, roughly twelve years ago?  Yes is Lockhart’s answer.  And has there been a lot of discovery in this case?  Yes again.  So, says the court, the defense just wants an independent investigation to corroborate evidence that has been supplied to them.  You’re saying they can do that with the resources they have?  According to Lockhart, they can.  That much is clear from a case cited in the government’s brief.  And she adds that the resource question is not some sort of tit-for-tat - though Judge Pohl quickly says he is not suggesting so. Again, Lockhart says, what does a new investigator add?  The Convening Authority did not grant the defense an additional investigator, because it recognized the sufficiency of their current resources.  The defense already has people who do Yemeni cultural issues, she says.  (She pauses to refer to a paper cited by the defense, which says no suspects of the USS Cole Bombing made any allegations of mistreatment.)  Finally, the government urges the court to look at the Convening Authority’s thought process.  The accused asked the Convening Authority for one investigator, and that was granted.  Then they sought another investigator, and got that person, too.  So the Convening Authority is hardly withholding resources from the defense.  The problem, instead, is that the defense’s most recent candidate has no investigative skills.  That fails to meet the third of the three-prong legal standard, the prosecutor says. Kammen promises a quick rebuttal.  One can read the news differently, he says, but it seems to me that Yemen is an unstable place. Last week the airport was shut down on account of threats; the State Department also says Americans should not travel to Yemen.  Thus far, he says, the defense has hired one person, who is very experienced, to locate local resources for us - but only for a very limited number of hours.  Pohl wants to know a bit more about this.  So I’m clear, he says, you have two investigators, and another person?  Was that other person your resource in Saudia Arabia or another fellow? Kammen says it was the other individual, whom he identifies as “the professor.” It was clear to the Convening Authority, Kammen says, that both investigators were needed to help us locate people in Yemen.  As he said, it is highly dangerous to go to Yemen.  The prosecutor’s own deposition requests and the State Department reports underscore this.   Kammen says his understanding is that if you travel to Yemen, then you cannot leave Sanaa unless you are Yemeni.  But, he explains, we need resources outside Sanaa, because this crime happened in Aden.  He closes with a quick legal summing-up: under the ABA guidelines and the cases, argues Kammen, we have a right to an investigator. The court agrees, and finds that the accused has a right to an effective investigation, even more so in a capital case.  And the defense, given the state of affairs in Yemen, cannot investigate matters itself there. It appears, continues Judge Pohl, that the defense’s proposed investigator cannot help with Yemeni matters, as he is not a Muslim and does not speak the local language.  But, though the court shares the government’s concerns about the investigator’s qualifications,  the defense is entitled to its choice.  The accused has shown necessity, and thus the commission grants AE40.  The defense will have the investigator’s services for three months.  Should more time be required, then Judge Pohl says the defense should renew its request with the Convening Authority, and, if necessary, the court.