This Week at the Military Commissions, 9/9 Session: 1,300 Pounds of Discovery

It’s Friday, we’re wrapping up the first week back in Al Nashiri, and al-Nashiri himself is back in the courtroom. After some characteristically Guantanamo housekeeping—with only one courtroom, Judge Spath has to schedule around the al-Hadi hearings—we get a discovery update from Chief Prosecutor Brigadier General Mark Martins. The government has produced 265,000 pages of discovery. (At 4.5 grams per standard sheet of paper, and assuming the government prints double-sided, that’s over 1300 pounds of discovery.)

Martins assures the Commission that the prosecution is working seven days a week to comply with order 120AA—perhaps not “around the clock, but it is seven days a week, including holidays”—and has “tempered optimism” that the prosecution will meet the September 30 discovery order. As part of that review, they have already completed review of the Senate Select Committee’s Report on the CIA RDI program. Judge Spath wonders how many more pages are heading his way—multiple thousands, and then additional multiples of a thousand. At the end of the exchange, Martins triumphantly declares this “a major milestone in completion.”

Back to scheduling, Judge Spath wants to make sure we have a clear “battle plan” for future sessions “so that we can effectively use our time here with any witness testimony.” He’d rather do the sessions in a two week block—although he isn’t sure if that saves taxpayer money, it certainly saves “wear and tear on everybody traveling.”

For the defense, Richard Kammen isn’t impressed with General Martin’s discovery update:

Let me tell the court what I heard in all of the word salad is General Martins says, and it sounds about right, that they have produced 265,000 pages of unclassified material. That number sounds about right.

I’ll tell you that that has been a major, major administrative problem, because the formats in which they produced it are—there is no order to them. And so one document, if you will, might contain ten different subjects or ten different interviews. And so segregating those out, organizing them. The other part of that is that there are multiple copies of the same interview, with different redactions. And so figuring out, if you will, which is the most expansive or combining them, has been an issue.

And he’s not convinced Martin’s scheduling optimism is reality-based, and that really, “the bottom line, what I’m hearing is that we have no idea when we’re going to get it.”

Kammen is pretty frustrated. He’s had about enough of this discovery mess:

Kammen: You know, Jencks and Giglio, in a real court, are discovery matters.

. . .

Judge Spath: I appreciate your frustration with the commission process. This is an Article II court, and I know you don’t mean the disrespect, but it is as real as any other Article II court.

But Kammen does mean the disrespect. He’s not impugning the estimable Judge Spath specifically, but he argues that even “a great judge in a system that is hopelessly flawed can do no better than the system, and this system is hopelessly flawed.” Generously, Kammen agrees that maybe the prosecution isn’t the real problem: “Maybe the FBI’s the people who took it and threw it up on the steps and let random pages fall and then scanned it and then gave it to us.”

First up on argument for the day is motion 352, regarding the Convening Authority’s dual role. Defense counsel Lieutenant Commander Jennifer Pollio is going to argue this one. According to the defense, Williams v. Pennsylvania, decided this year by the Supreme Court, prohibits “dual-hatting” as a violation of due process. So the Convening Authority may not occupy both prosecutorial and judicial roles. Wearing its judicial hat, the Convening Authority is statutorily authorized to seat jurors or reduce the number of jurors required, approve the ultimate sentence, and identify legal errors at the appellate level. And in the prosecutorial realm, it is authorized to bring charges, negotiate and enter into pretrial agreements, and determine whether to seek the death penalty. According to the defense, Williams holds that even the decision to seek the death penalty, without other prosecutorial involvement, disqualifies an individual from acting in a judicial role in that case. Because dual-hatting is a structural violation of due process, Williams doesn’t require any factual showing of bias.

The prosecution argues that Judge Pohl considered a similar motion in the 9/11 case and found no Williams problem. The Convening Authority, according to that order, exercises a purely executive role. The prosecution also characterizes Williams as a much narrower ruling about the specific judicial recusal of a specific prosecutor who went on to sit on the highest court in Pennsylvania and to rule on the habeas petition of a death penalty defendant for whom he had made the decision to seek death when he was a district attorney years earlier—a case about ethics more than structure.

Next is argument on Appellate Exhibit 335C, regarding a motion to compel witnesses to testify regarding statements made by former Guantanamo detainee Ahmed al-Darbi. The prosecution argues that the statements in question were “not the product of enhanced interrogation or torture,” and therefore the defense lacks standing to compel testimony.

For the defense, Pollio says that though the particular statements at issue weren’t the product of torture, “the impact of torture is long-lasting,” and al-Darbi’s treatment in 2002 is relevant to the statements he made in 2007. Lieutenant Cherie Jolly for the prosecution agrees to defer the motion to compel testimony until discovery is completed.

The last motion to be argued today is Appellate Exhibit 355, and Kammen is up first. In all his experience as an appellate lawyer—experience that spans five of the eleven federal circuits and the U.S. Supreme Court—he can’t remember any ex parte administrative conversations with an appellate court. He’s checked with other lawyers and they can’t remember it ever happening, either. Kammen isn’t satisfied with the prosecution’s assurances that “we’ve reviewed our own behavior, and we find it’s appropriate, and so trust us.” Judge Spath wants to know how this specifically is unlawful influence that he can remedy. Mr. Kammen responds that the unlawful influence doesn’t need to be on Judge Spath, but rather Judge Spath can order discovery on it anywhere in the system.

General Martins for the prosecution opposes the motion. Martins characterizes the discovery request as “fuelling . . . a fishing expedition by a disappointed litigant”: “let’s turn over to the defense any and all communications between the government and public officers without articulating any authority. We had a stroll through Mr. Kammen’s life and professional work, but no citation to authority.” Martins argues that ordering such discovery goes against Latif v. Obama’s presumption of the regularity of public officers performing official tasks.

But Judge Spath is worried, at a minimum, about appearances: “If there’s communication with a person making an appellate decision that’s ex parte, and you put that in connection with all of the other issues we have dealt with in this related specifically to [unlawful influence], does it rise to the level where I should at least put the public confidence at ease?” General Martins would prefer that Judge Spath “focus on the rules here.”

Judge Spath gives Kammen the last word on this. Kammen is “honestly stunned” by Martin’s suggestion that “these are just sour grapes.” He emphasizes that this is nothing short of “highly irregular,” and the fact that CMCR “Judge King’s name is on an opinion that was issued after he had left the court” is evidence enough of irregularity. At a minimum, the defense wants Judge Spath to order an in camera review of the communications to the judge.

And after all that, General Martins chimes in to agree to have Judge Spath review in camera. Kammen agrees to accept Judge Spath’s representation of the communications as benign, if indeed they are.

After some final housekeeping, Judge Spath calls recess. That’s all for week one of hearings in Al Nashiri for 2016.