Coverage of Al-Nashiri’s Arraignment: Motions Hearing Part 2

Following discussion of post-acquittal detention, the al-Nashiri motions hearing continued with the defense’s second motion. This motion involves the defense’s request that Military Judge Pohl allow in camera, ex parte requests to the Convening Authority for expert assistance while only providing minimal notice to the prosecution.

A little background information on this issue is warranted. The defense’s motion centers on Rule for Military Commissions (R.M.C.) 703(d), which governs the procedures by which either party may seek government funding for expert assistance. R.M.C. 703(d) provides that “[w]hen the employment at Government expense of an expert is considered necessary by a party, the party shall, in advance of employment of the expert, and with notice to the opposing party, submit a request to the convening authority to authorize the employment and to fix the compensation for the expert. The request shall include a complete statement of reasons why employment of the expert is necessary and the estimated cost of employment.” The defense cites in its motion the discussion following R.M.C. 703(a), which states that “[t]he opportunity to obtain witnesses and evidence shall be comparable to the opportunity available to a criminal defendant in a court of the United States under article III of the Constitution.” The defense’s argument is that R.M.C. 703(d), by virtue of R.M.C. 703(a), should be read to mirror the procedures in an Article III court, which permit the defendant to submit in camera, ex parte requests for funding of experts to the funding authority.

Military Judge Pohl begins by stating that the defense appears to want to provide only the Convening Authority with the details of its funding requests for expert assistance. It then would provide the prosecution with general notice that it has sought funding for expert assistance.

Lead Defense Counsel Richard Kammen states that he would like the notice to be something along the lines of “request for ex parte assistance filed” and nothing more, which he says is consistent with federal court practice.

Judge Pohl states that he thinks the defense’s motion puts two concepts together. First, he says, the defense seems concerned about disclosure of defense strategy from the expert himself. Expert assistance, he notes, is still privileged work product. Kammen say that is correct. Such an expert only becomes an expert witness, according to Judge Pohl, if the disclosure of the substance of his or her testimony becomes discoverable. Kammen again agrees. Judge Pohl asks if that is the trial counsel’s understanding as well. Lead Trial Counsel Anthony Mattivi says that it is.

Judge Pohl then notes that at this point the parties seem to be asking what the Convening Authority will accept. Though not clear from the hearing, the defense’s motion brief states that the Convening Authority’s current practice is to not permit ex parte requests by the defense for expert assistance, but rather to obtain the prosecution’s input as well. According to the defense’s brief, the Convening Authority has stated that “the process helps [him] evaluate the need for expert assistance and determine whether alternatives are preferable, in order to avoid wasteful expenditure.”

Judge Pohl, seeming to agree with the Convening Authority’s statement, notes that ex parte submissions are an exception under military practice; that is, when you request an expert in military practice, you must show the convening authority that it is relevant and necessary. Judge Pohl continues, stating that if the Convening Authority denies the request, then it comes to the judge for decision. He asks Mattivi if he is reading the rule incorrectly. Mattivi responds “not at all” and states that the government recognizes that the rule in the commission is similar to the one in the UCMJ. Nevertheless, Mattivi states that the prosecution recognizes and appreciates the defense’s suggestion that this is a sufficiently different proceeding to warrant a different application of the rule. Indeed, Mattivi notes that there is an acceptable application of the rule consistent with the defense’s method.

Judge Pohl states that, as he understands it, the defense wants a similar procedure for requests that go to the Convening Authority and for requests that go to the judge. But, he asks, what happens if the Convening Authority does not accept this? Kammen states that it is his understanding that Military Judge Pohl has the authority to require the Convening Authority to accept and entertain ex parte submissions and to treat them confidentially, but not the power to require him to grant them. Mattivi, however, is not sure whether Judge Pohl has the ability to order the Convening Authority to act in the affirmative.

Judge Pohl shifts to a slightly different issue and asks the defense whether or not it understands that it must disclose the expert to the government at some point so as to ensure that the expert is paid. Kammen states that this is correct. Judge Pohl again asks trial counsel if he is correct in his understanding that the government is comfortable with this procedure but is not sure if the Convening Authority will accept it. Mattivi responds that Judge Pohl understands correctly. However, Mattivi notes that trial counsel has some concern that the defense may use this as a means to surprise them at trial. Judge Pohl comes back and clarifies that the parties are discussing expert assistance, not witnesses. He adds that each side will have ample time to prepare and that there will be no surprises.

Mattivi then notes that the “unique logistics” required to get experts to Guantanamo may result in inadvertent disclosure of the identify of the experts. Kammen states that the defense’s concern is not so much over-payment or protecting the general identity of the expert witness, but, rather, that the defense wants to protect the disclosures that they have to make to the Convening Authority or to the commission to convince them that the defense is spending government money well. Judge Pohl states that he understands that this is preliminary attorney work product; Kammen adds that it also includes attorney-client disclosures. Mattivi states that the prosecution does not want to invade that.

Judge Pohl notes, however, that even though both parties agree on this matter, the person to whom the issue is really directed—the Convening Authority—is not present in the courtroom. Moreover, Judge Pohl states that the pleadings suggest that the Convening Authority would like to have the government’s position on these submissions before he, the Convening Authority, makes any decisions about them. As such, Judge Pohl directs the government to go to the Convening Authority to obtain his position on the matter.

Kammen, however, speaks up and states that defense counsel would like to draft an order for Judge Pohl’s signature and submit it to trial counsel. Judge Pohl, then, can give an order to the Convening Authority, Kammen says. If the Convening Authority responds to the order by stating that Judge Pohl does not have this authority, then, Kammen adds, “we will see where we are at.” Judge Pohl states that he recognizes that he can tell the Convening Authority to do some things, but not others. As such, he states that he would prefer just to find out the Convening Authority’s view on the matter. Kammen says that he will draft a letter to the Convening Authority that both he and Mattivi can sign. He states that they will send it to the Convening Authority and then see what his response is. Judge Pohl asks Mattivi if that “makes sense;” Mattivi replies, “yes.”

With that, Military Judge Pohl moves to the defense’s third motion of the day, which involves the defense’s concern over Joint Task Force–Guantanamo personnel reading defense attorney-detainee communications in violation of the attorney-client privilege. This motion will be the subject of a later post.