June 11 Session #8: What Habeas Counsel Knows

Before the podium stands Richard Kammen, Al-Nashiri’s lead lawyer.  His chosen subject is AE143, a defense motion to compel discovery of exculpatory information the government previously furnished to Al-Nashiri’s habeas counsel.  He reviews, briefly, the habeas petition brought by the detainee’s lawyers.  It remains pending, as a technical matter.  But Al-Nashiri has different lawyers in that case, as does the government.  And here’s the kicker: habeas counsel has seen potentially exculpatory information, which---because of protective order rules applicable to the habeas case---they cannot describe in detail, and which they cannot turn over to Al-Nashiri’s commission lawyers.  The prosecution seemingly takes a cramped view of discovery here, says Kammen.  Why won’t they turn over habeas discovery to us?  The court should order disclosure, either by means of a protective order modification or an instruction to commission prosecutors.

The defense has completely missed the mark in this motion, says CDR Andrea Lockhart of the prosecution team.  For starters, a habeas proceeding is thoroughly different in its objective and procedures from a war crimes trial.  Here, we’re concerned with---and only with---matters charged in the charge sheet, and later, with sentencing.  Indeed, the habeas proceedings might---Lockhart doesn’t herself know---rely upon evidence of the commission of crimes not even charged against Al-Nashiri.  (She hypothesizes an attack in some other place, and during some other year, than that depicted in the referred charges.)  The prosecutor is acutely aware of the obligation to seek out and hand over exculpatory stuff, she stresses.  And while discovery material might well come from a common government “pot,” certainly not all of that information is relevant to all legal claims in all kinds of cases implicating Mr. Al-Nashiri.  She all but pounds her fist: any suggestion that the government has shirked its discovery obligations is positively outrageous.

The court to Lockhart: do you actually know what was turned over in the habeas case?  No.  Well then, muses Judge Pohl, how do you know about what is commission-relevant there, and what is not?  Because we would have found it in our searches otherwise, answers the prosecutor.  She believes in the system that the government has created, and knows well the sorts of information that prosecutors regularly uncover and pass on to the defense as appropriate.  The Prudential Search Request (PSR) process works, and routinely sweeps more broadly than evidence to which the accused is entitled.  And anyway, how do habeas counsel know what commission defense counsel have and don’t have, as far as discovery goes?  She adds that, in her view, prosecutors have searched adequately, and turned over all exculpatory material to the defense---all the while mindful of the risk that a discovery violation would entail, come trial-time.  When asked, Lockhart separately suggests a problem with an unrestricted, habeas-counsel-to-commission-counsel data transfer: discoverable information in the former might well contain classified material not fit for disclosure to defense counsel in the latter.  In any event, “we have cast as wide a net as we possibly can,” argues the prosecutor.  A quick back-and-forth about what the discovery obligation really requires of the government---the standard comes from a mix of rule and case law, according to Lockhart--and the prosecutor returns to her seat.

Kammen leaves his.  Evidence helpful to the accused in a habeas proceeding would also be helpful here, he argues; how could it be otherwise?  The question might have an answer that Kammen won’t like, given the court’s quick interruption.  Without the habeas litigation, you’d be in the same position as you are now, though, right?  Kammen concedes that he would be.  And, the military judges continues, what is material to habeas counsel in fact might not be material to defense counsel.  Isn’t that true, too?  Another concession from the lawyer, who nevertheless does not think it to at all diminish the need for access to habeas discovery.   Why take the risk of doing otherwise?  If the court imposes an order, Kammen explains, and the government doesn’t comply, then the consequences can be huge. But any such consequences would come far later in the criminal case.  Thus Kammen’s proposed order would say, instead, “review what the habeas counsel was provided, and deliver all relevant material in that proceeding to commission defense counsel.” The government ought either to provide the habeas material directly, or alternatively, at least review it for relevance to the commission case. At the end of the day, it seems, the defense is just not as optimistic about the PSR process as the prosecutor is. And it won’t cost much, according to Kammen, for Lockhart and company to see whether his lack of optimism is warranted or not.  We’re only talking about another three or four thousand documents, apparently.  And that isn’t a burden, considering the size of discovery thus far, he argues.

So much for habeas discovery---about which the court does not issue a ruling.