In AE222, the defense seeks to compel discovery into a possible reprisal defense to the terrorism charges against Al-Nashiri.
By reprisal, Maj. Tom Hurley has in mind, in essence, a legal doctrine that permits certain individuals to take otherwise illegal actions in the context of armed conflict, under narrow and extraordinary circumstances. Thus he seeks after-action reports regarding the killing of civilians and similar Defense Department materials—that might suggest unlawful actions by the United States, and that also might justify Al-Nashiri’s alleged terrorism.
The court quickly stops Hurley’s presentation, and flags the prosecution’s objection, that the reprisal defense apply only to state actors—which Al-Nashiri obviously is not. Hurley dissembles a bit, but seems to say that he needs to get his hands on discovery first, in order to determine whether to pursue the reprisal doctrine’s application to his client in the first place. But, Hurley further argues, Al-Nashiri might still be considered a state actor at some stage during the events described on the charge sheet. The lawyer adds that the discovery sought is undoubtedly relevant and material—to Al-Nashiri’s mindstate. That sounds like a mitigation claim; and it also confuses the court a bit, given that some of the discovery apparently concerns events of which Al-Nashiri was concededly not aware. How could such things go to the severity of punishment? Hurley responds that the accused quite possibly was aware of some of the events in question—-ones Hurley would need to verify through discovery.
Maj. Evan Seamone stands to discuss the international law of reprisal. That law calls for much more than state action, he says, before reprisal can be made out as a defense: an accused must also serve at the highest levels of a state government, for example; and the targeted state (here, the United States) must also have committed a serious offense against the laws of war, before an accused may raise a reprisal claim with respect to conduct later assailed as a war crime. Yet nobody’s saying Al-Nashiri was ever the Yemeni Defense Minister, and his pleadings don’t specify any predicate law of war breaches by the United States, either. Seamone also agrees with the military judge that so-called “mindstate” discovery can’t possibly have any connection to events that, in fact, Al-Nashiri didn’t know about. The gist: this stuff is way wide of the mark, Seamone seems to say, and the request should be rejected. A few words more—the lawyer doubts the relevance of any after-action materials even to mitigation—and Seamone sits.
Hurley replies, first by noting that a defense bid to depose Yemen’s president—and to explore any state actor role for Al-Nashiri—was rejected already. Then there’s the “mindstate” theory: here Hurley affirms that the discovery bears directly on his side’s mitigation case, and that any discovery granted will eventually have to clear different hurdles for admissibility. (The implication is that the lower discovery standards favor Al-Nashiri’s motion.) When asked, the defense attorney confirms that he’s looking into civilian casualties, though without any inquiry into whether the casualties were lawful. Hurley thinks his side is entitled to such information, with or without investigation into lawfulness.
And that’s a wrap. The commission stands in recess until tomorrow.