This Week at the Military Commissions, 3/9 Session: A Timeline for Discovery

Our usual crew returns to Nashiri where we left them on the 8^th—debating a timeline for discovery.

Judge Spath issues two orders with relative ease before diving into discovery: (1) determining that Nashiri’s decision not to attend the day’s hearing was knowing and voluntary and (2) deciding that one of the consultants—Mr. Rex Plant—will be allowed to enter the courtroom and to access members of the defense team, but will not be allowed access to Nashiri due to information security concerns. With these issues dealt with, Judge Spath is ready to claim a procedural victory (“let’s just take this as a good moment”). Counsel for the government is, cryptically, less exuberant (“there may be more to the story that’s not a good moment”). Judge Spath, however, is undeterred (“I think it was just, thank you, that’s what I meant, thank you that we can move along next week”).

For the prosecution, Air Force Major Michael Pierson is then invited to update the court on the government’s review of a number of discovery requests (S through EE). All parties agree that documents BB through EE will be taken up in a closed session.

The rest of this session focuses on deposition from Ahmed Muhammed Haza Al Darbi, a key witness in Nashiri’s case and defendant in another military commission case. Pierson argues that defense had been given a substantial portion of the notes from government’s 224 interviews with Al Darbi to adequately prepare a cross-examination. Pierson also argues that 120 days is sufficient for defense to prepare for deposing Al Darbi as it is in keeping with JAG practice and case law concerning Brady and Giglio materials.

But Richard Kammen, for the defense, rejects these arguments as unmoored from the Nashiri trial’s reality. First, he says that defense had first heard about the 224 statements yesterday and had nowhere near that number of records. Second, Kammen argues that the defense needs more than 120 days because their team has almost entirely turned over since Al Darbi became a central figure in Nashiri’s case. The sheer volume of discovery also militates towards a longer lead-time. Finally, Kammen says that Spath should set a firm deadline for the prosecution to complete discovery because “without deadlines, none of the [government’s] representations have any meaning.”

The first session ends with Kammen requesting that Judge Spath allow the defense to review Nashiri’s medical records directly and Pierson asserting that government will propose Al Darbi’s deposition take place in July.

Mark Miller, for the government, kicks off the second session by arguing why an exceptional deposition in July is warranted. Three factors are considered when deciding whether to grant an exceptional deposition: whether it is unlikely that the witness will be available to testify at trial, the materiality of the witness’ testimony, and the interests of justice. Miller’s take on materiality prong is largely uncontested by defense: Al Darbi’s statements are material because they provide a firsthand account of Al Qaeda, its activities, and Nashiri’s involvement with Al Qaeda. Next, Miller argues that the availability prong has been met because Al Darbi’s plea deal allows that, upon sentencing (this August), he can apply for repatriation to Saudi Arabia to finish his sentence. All indications suggest that Al Darbi will make this request.

Navy Lieutenant Commander Jennifer Pollio, speaking for the defense, has a very different take on the matter, asserting that it’s the prosecution’s litigation strategy, not uncontrollable exigencies, that have led to this situation. Pollio argues that the prosecution has consistently dragged its feet throughout Nashiri’s trial by slowing discovery and advancing numerous interlocutory appeals. The case law, Pollio declares, does not support granting depositions when exigencies are caused by government inaction. Second, Pollio argues that the government is in control of the plea deal: when the plea was negotiated in 2013 the government knew full well that Al Darbi was needed as a witness and that the trial was taking longer than expected. For up to a year before this past December’s deposition application, furthermore, the government consistently failed to raise the issue of Al Darbi’s imminent departure.

Miller contests this characterization of the government’s litigation strategy. He argues that nobody “could have anticipated the amount of effort and the amount of time” discovery would take, and notes that nothing in the case law or 702 punishes the government for good faith litigation.

Pollio goes on to argue that the fact that this is a capital case heightens the government’s burden. The government’s statement that Nashiri will likely not be available, therefore, is insufficient—an assurance from the Trump administration that it will honor the plea deal’s terms is needed. Pollio also mentions that VTC testimony has been a common feature of the commission’s operations—nothing suggests it would be impossible to arrange in this case.

Taken together, Pollio urges Judge Spath that granting a deposition would not be in the interests of justice. In a capital case, it is simply more important for the members to have an opportunity to ask questions of the case’s only live witness. Judge Spath, however,is concerned that denying a deposition might actually cut the other way if the defense loses its case against the admissibility of Al Darbi’s hearsay evidence, some of which purports that Nashiri was involved in bombing the Cole. That hearsay evidence, without an opportunity for cross examination, might be more prejudicial to the guarantee of a sound process.

This sparks an extended conversation between Pollio, Spath, and Miller about the likelihood that Al Darbi’s statements would be ruled inadmissible as “fruit of the poisoned true” given the government’s use of enhanced interrogation techniques. Everyone agrees to disagree, or at least to cross that bridge at a later time.

With that, Judge Spath wraps up with a number of administrative matters before recessing for a closed session later that afternoon. The judge promises to finish up a decision regarding an ex parte filing on the execution of Mushin Al Fadhli, an al Qaeda leader killed in a U.S. drone strike whom the defense believes may have been responsible for the Limburg attack, and agrees to have a discussion with Kammen about the scope of cross examination after tomorrow’s Nashiri direct.