October 18 Commission Session #4: Peace Breaks Out on Bugs and Mold; Rule 703 is Debated

Bugs are Cheryl Bormann’s problem, along with mold and mildew---though perhaps, it seems, less of a problem than before.  She reports that the parties have settled their dispute about sanitary conditions in the defense lawyers’ Guantanamo offices.  Among other things, a comprehensive cleanup is planned, and the government’s hygenists also will make recommendations for the remediation of any remaining health and safety concerns. Attention then turns to James Connell III and his motion---AE36—regarding military commission rule 703 (“Rule 703”).  The lawyer cites Federal Rule of Criminal Procedure 17, which authorizes parties unilaterally to compel the attendance of witnesses, without seeking the other party’s input.  Rule 703 is tougher than that.  It requires the defense to submit a witness’s name to the prosecution, and gives the prosecutor discretion to approve or reject a witness request.  Before proceeding, the defense lawyers also must prove, to the prosecutor’s satisfaction, the relevance and necessity of the proposed witness’s testimony.  (Judicial review of the prosecutor’s decision comes afterwards.)  That’s contrary to Section 949(j) of the 2009 MCA, in Connell’s view.  Critically, between 2006 and 2009, Section 949(j) was altered.  Under the 2009 provision, the defense’s opportunity to obtain witnesses in a commission must be “comparable” to its opportunity to do so in an Article III court.  It thus falls on Judge Pohl to address the evident mismatch between the statute and the rule---which has gone unchanged since well before the 2009 statute's passage. The court can resolve the problem, Connell argues, without addressing any constitutional due process or other rights invoked by the accused.  An easy statutory fix: Judge Pohl might replace Rule 703 with a truly comparable-to-Article III-court procedure.  As for what’s “comparable,” Connell envisions a system in which defense attorneys must demonstrate a witness’s relevance and necessity to the court, rather than to the prosecutor.  If the defense cannot do so, then no subpoena will issue.  Another alternative: the court also might invalidate Rule 703 altogether, and urge the Secretary of Defense to promulgate a lawful substitute.  Connell then flags the myriad, comparability-precluding differences between Rule 703 and Federal Rule 17.  In federal courts, witnesses are never screened for “necessity,” as they are in military commissions; civilian prosecutors also can never delay a witness’s testimony, but military prosecutors can.  The lawyer also mentions the views of federal public defenders, whom Connell consulted.  This group’s strong belief is that Rule 703 confers nothing approaching, let alone “comparable” to, the powers conferred by Rule 17.  Judge Pohl asks a practical question.  As it stands, he says, Connell and company must to provide considerable information about potential expert witnesses to the prosecution.  Would Connell be comfortable with a de minimis notice procedure---that is, one in which requests for those witnesses would be made to the court, and only the most skeletal information about the witnesses would be furnished to the prosecution?  Connell hedges a bit, but says he doesn’t object to a bare-bones sort of notification. The lead defense lawyer is done, so cue supplementary remarks from other interested defense counsel.  Ruiz rises to adopt Connell’s arguments; Harrington does too, and adds that he’s proven to federal judges, on an ex parte basis, precisely why his expert witness requests should be approved.  The key is that the standard for such approval is low, and based on good faith.  Judge Pohl asks again about his “de minimis notice” idea.  Harrington answers by emphasizing the accused’s indigence: unless the government pays, the accused have no way to cover their witnesses’ travel and other expenses.  Bormann, for her part, notes the findings of an Illinois commission---which determined that prosecutors in capital cases should never have a say over the defense’s ability to obtain witnesses.  She adds that her colleagues in the death penalty bar would be shocked to learn that Bormann must seek government approval before she can obtain funding for an expert.  She ends with an appeal to the commissions’ reforms: if those have really brought transparency to military commission cases, as General Martins is fond of saying, then there has to be equality of arms between the parties regarding witnesses.      Derek Poteet, speaking on behalf of KSM, rises and emphasizes the self-censoring aspect of the Rule 703 procedure.  If witnesses have to make their testimony and other details known to prosecutors, in advance, then they are likely to hold back on assisting the accused.  Sensing that problem, defense counsel also might be tempted to withdraw witness requests related to important motions.  Judge Pohl stops Poteet and insists that the latter is not his problem.  The decision not to call witnesses or to call witnesses belongs to the party alone.  Poteet winds up by putting his witness reluctance point in context.  Our clients, he says, are uniquely unpopular with the American public.  He sits down.  Ruiz returns to the podium only briefly, in order to emphasize that any de minimis notice be truly be de minimis, lest it preview, for prosecutors, the defense’s thinking and strategy.  Sure, he acknowledges the obligation to divulge witnesses' identifies as trial time approaches.  But Rule 703 goes to far, by tipping off the prosecution much, much earlier in the litigation. Rising for the prosecution is . . . nobody.  Stop time is upon us, as Judge Pohl observes.  But many docketed motions have yet to be addressed, and that residual problem prompts a discussion of future commission meetings.  Defense lawyers agree to meet with prosecutors afterwards for an 802 session---where the parties will compare calendars and work out a possible schedule.  David Nevin asks to have KSM present at the 802.  Judge Pohl says no.  There’s some excruciating argument about how to proceed---isn’t an 802 session with KSM present functionally the same as hearing on the record?---when the court again overrules Nevin’s objection. We’re thus in recess.  (There’s some rumbling about renewing proceedings about half an hour from now, after the accused’s prayer break; we’ll jump back online if, indeed, the parties choose to return.)