Military Commissions

3/2 Session #2: How to Do Hearsay

By Wells Bennett
Monday, March 2, 2015, 2:12 PM

The lunch hour comes to a close and we go back in the record in United States v. Al-Nashiri.  

What’s the way forward?  We wonder, given Judge Vance Spath’s prior ruling on unlawful influence, which excised any and all evidentiary hearings from the week’s agenda, and shortened an April hearing to boot. Some discussion follows; it seems we’ll first discuss purely legal issues having to do with hearsay statements by absent folk---in particular, motion 331A. In the latter, the government proposes a particular process for demonstrating the admissibility of material identified in two other prosecution pleadings, AE166 and AE207.  The former deals chiefly with hearsay statements; and, as readers likely know, hearsay is admissible under certain circumstances in the military commissions---but the presence or absence of those circumstances must be addressed by the military judge.

Trial counsel Navy Lt. Bryan Davis talks process, and urges a “common sense” approach to figuring out whether hearsay comes in or doesn’t. Judge Spath has concerns, the biggie being this: Each hearsay statement must be analyzed separately, with respect to corroboration, the unavailability of the hearsay declarants, and so on. He has to be able to compartmentalize, and the piece-by-piece review is going to take time. When asked about the timing issue, Davis says he plans to call 8 witnesses with respect to one series comprising roughly eighty hearsay statements. But the prospect of piecemeal witness testimony, with some at this time and other parts down the road, worries Davis. That can be burdensome, given the need for travel to and from Guantanamo: Davis’ key chain of custody witness would have to fly down several times, for example. Showing relevance will likewise call for time-consuming presentations, too: think of pieces of fiberglass taken from the destroyed Cole itself, or other evidence that will call for multiple witness comments. We thus quickly come to the punchline: Prosecutors want Judge Spath to hold off on ruling about hearsay determinations, pending the full submission of all evidence needed to establish why this or that hearsay ought to be admitted. Don’t go piece-by-piece, your honor; let the government put on the full range of material before ruling on hearsay.

The baton passes to Learned Counsel Rick Kammen, who sees a big difference between AE207 and AE166. The former, Judge Spath suggests and Kammen seems to agree, is fairly standard; the lawyer’s anxieties go entirely to the latter. The trouble is that in the Wright case, the Supreme Court barred the prosectution’s proposed take-a-bunch-of-unreliable-statements-together-and-deem-them-reliable approach. This is the fundamental problem with Davis’s appeal to flexibility; individually, the statements in question are simply unreliable, and at times themselves comprised of hearsay. Bear in mind that Yemeni investigators arrested whole neighborhoods during the Cole aftermath, Kammen argues; during that time, the FBI was entirely walled off from the Yemenis’ efforts. We thus have *zero* idea of what was suggested or said to the witnesses with whom Yemenis and, later, FBI officials spoke.  And we'll have no way of addressing the hearsay contained in those statements, either.  (Kammen pauses to note a related absurdity: To date, the defense hasn’t been cleared to receive certain information about these Yemenis; apparently, Kammen and company lack the requisite “need to know.”)

The lawyer then stresses the precedent-shattering circumstances: to his knowledge, the United States has never rested its guilt-innocence presentation on eighty hearsay statements.  But if Wright has any meaning, the reliability of those statements must be assessed in isolation, one by one, and without reference to other hearsay.  This leads Kammen to his side's key point: The best way to handle hearsay admissibility is to go statement by statement, blow by blow, and make a determination as to each; the construct must be narrow, in the Learned Counsel’s view. But it can’t be an evidentiary “free for all,” in which each unreliable statement somehow buttresses the other, allowing the whole lot to be admitted into evidence.

Davis returns to the podium, and when asked, he quibbles with the defense’s suggestion of a clear legal framework: the most apposite Supreme Court precedent never dealt, for example, with sensitive intelligence gathering.  At any rate, there’s a proper time for Kammen and the defense to challenge the admissibility of particular hearsay statements: after the government has put in all of its proof as to admissibility. We’re just not there yet, Davis argues.  When asked, Davis affirms that the government indeed can offer other evidence, even hearsay, to corroborate another hearsay statement that it seeks to admit; but again, contra Kammen’s earlier claims, he doesn’t think that a pre-trial determination of admissibility would offend any legal precedent. A bit more follows along these lines---the prosecutor asks, for example, that any proof submitted in opposition to a hearsay statement’s admissibility be provided in a timely fashion by the defense---and then Davis winds down, pausing to reiterate that the record on admissibility should remain open until the government has put all of its own proof forward. He sits.

Al-Nashiri’s attorney says a few words further, stressing that the threshold determination of admissibility is absolutely crucial: allowing a hearsay statement means putting it before the members. The court must be the gatekeeper, argues Kammen.  And Wright leaves no doubt as to how that gate ought to be kept---that is, unless we’re saying that American justice simply has no application in Guantanamo.  He adds that he’s not obligated to offer up impeachment evidence in advance, despite Davis’ call for advance notice. The motion is submitted; we recess briefly.