June 12 Session #1: Housekeeping

At 9:05, the military judge takes the bench.  The mic is affixed.  “Is this on?”  Yes, it is.

All parties are present, including the accused---whose attendance moots the need for any voluntariness discussion.

First to the podium is Richard Kammen, Al-Nashiri’s lead attorney.  He has a few housekeeping issues, including ones bearing on yesterday’s DIVO discussion.  This has proven difficult, Kammen says.  It seems potential DIVO experts are affiliated with attorneys, who themselves are concerned about possible cross-examination by prosecutors---on, among other things, past and current affiliations and attitudes towards the death penalty.  Thus Kammen wishes to know what the questioning ground rules might look like, in advance; that might help him find an appropriate witness on short notice.  The Chief Prosecutor, however, will not waive his side’s cross-examination of a live witness.  But Kammen doesn’t want a waiver, he protests.  The Court splits the difference, neither requiring a waiver from Martins nor specifically limiting cross-examination, while pointing out that any DIVO witness’s testimony will be limited to the issues he noted yesterday (the generic duties of DIVO liaison, and so forth).

The defense lawyer is still hamstrung, reiterating that many would-be witnesses don’t trust the government.  Their reluctance matters little to Judge Pohl, who notes that a witness will or will not elect to participate based on his own perspective.  The colloquy here leads us to a brief, and irritated back-and-forth about witness production procedures in a military commission case.  Kammen, for his part, observes that even prosecutors found Professor Madeira---yesterday’s witness, from whom Judge Pohl declined to hear---capable of presenting relevant testimony.  The dispute goes nowhere, and appears simply to die off.  Kammen and the court then touch on Rule 802 conference matters---the defense still wants them on the record every time, given the proceedings’ historical significance, while the court still reserves decision, while noting that he will always summarize the outcome of 802 conferences on the record---before we turn to the substance.

Of what will that substance consist?  Not, it seems, of AE144, a defense motion to compel certain discovery from federal prosecutors, regarding the alleged guilt of Fahd Ahmed and Jamal al-Badawi for the crimes with which Al-Nashiri has been charged.  It turns out that, on May 30, materials from federal prosecutors were transmitted to the defense.  But Kammen hasn’t yet reviewed that stuff, so the matter is tabled.  Ditto AE131, a motion to compel the production of a representative of the OCA to testify on AE112.

Up next is AE 142, regarding the removal of Al-Nashiri from the courtroom during closed session.