To the podium comes defense lawyer Richard Kammen. His motion (AE 116) seeks evidence regarding a 2002 drone attack, in Yemen, that killed Qaed Salim Al-Harithi—-the reported “mastermind” behind the Cole bombing. That’s clearly exculpatory and mitigating material, in Kammen’s view, but he hasn’t gotten his hands on it yet. The government insists that it has satisfied its discovery obligations, but its record on disclosing records relating to drone matters is not exactly good. Kammen’s suspicion goes to the decision to kill Al-Harithi in the first place; some government office, somewhere, has to assemble a pre-strike dossier about person a targeted person. The defense lawyer thoroughly rejects the government’s responses to date: that it is still searching for Kammen’s sought documents; that the defense has received them already; and that they are not mitigating in any case. The last one is a stunner for Kammen. How could the records not be mitigating? The guy was the supposed “mastermind,” of the Cole attack, and relative culpability is a core issue at sentencing in a capital case. Ditto residual culpability—whereby a juror finds the accused guilty according to criminal standards, but declines to impose the ultimate penalty.
Lockhart has a few words in response. The government has acknowledged the discoverability of information regarding Al-Harithi’s role in the Cole bombing, she says. It thus has searched for, and produced, documents coming within that definition. But that’s narrower than the definition employed by the defense in their requests; the latter sweeps more broadly, and seeks information surrounding Al-Harithi’s death. Judge Pohl asks about the decision to target Al-Harithi in the first place. What about records regarding that? Answering, Lockhart emphasizes the breadth and seriousness of the government’s review: if it bears on the Cole, then it has or will be provided, she says. The court confirms that the government investigated the factual predicate for Al-Harithi’s targeting. The prosecutor responds with a hypothetical: if such records exist, then we’ve furnished them or will in the future. That draws a follow-up. So there’s outstanding Al-Harithi-related material that is still under review? Yes, Lockhart says. Regarding mitigation, Lockhart doubles down: if the government has information regarding Al-Harithi’s nexus with the Cole attack, then it will go the defense, period. We’re not winnowing down based on a narrow theory (or any theory) of mitigation, regardless of what Kammen says.
The trouble for Kammen, he explains in reply, is what the government’s review really comprises—or doesn’t comprise. What if prosecutors only review potentially responsive material that has been provided to them by government agencies. Such agencies might not be fully forthcoming to begin with Lockhart and her crew. In this connection, Kammen is especially concerned with the government’s pre-targeting dossier on Al-Harithi. He thus asks the court to order a full, prosecutor-conducted review of potentially responsive agency documents. In this way, prosecutors (and not, say, not-likely-to-share-openly intelligence services) could make discovery calls in the first instance. Judge Pohl doubts that arrangement’s feasibility. Not so Kammen: he sees no reason why the Chief Prosecutor could not, for example, send a letter emphasizing discovery standards to covered agencies.
The court ends by asking Lockhart whether she thinks the government’s existing discovery process is sufficient. She does, and the court takes the mater under advisement.