Military Commissions

3/2 Session #3: Odds and Ends

By Wells Bennett
Monday, March 2, 2015, 3:37 PM

Motion AE319J is next. In it, the defense asks to postpone the government’s bid to admit hearsay, pending the Court of Military Commission Review’s (“CMCR”) resolution of an interlocutory appeal concerning charges against Al-Nashiri pertaining to the Limburg.  (As readers likely know, Judge Spath dismissed charges touching Al-Nashiri’s role in the attack on that vessel; the government appealed to the CMCR.)  Lt. Cmdr. Jennifer Pollio, speaking on behalf of the accused, drills down hard. She insists that the case cannot go forward in piecemeal fashion, so long as the CMCR hasn't ruled.

That approach, in Polio’s view, is contrary to the military commission rule 908(b)(4); this prohibits further proceedings, except as to charges and specifications not related to the ruling potentially affected by the appeal. But on the prosecution’s very theory of the case, all of the counts on the charge sheet---Limburg and non-Limburg---are quite interrelated. The whole case rests on a single theory, that Al-Nashiri was at the center of a “boats operation,” after all. She thus quickly sums up: hold off on all this “can the hearsay be admitted” stuff, your honor, until the CMCR resolves the government’s appeal.

Over to the prosecution, and to Col. Robert Moscati---who doubts Pollio’s claims. There’s just no relatedness there: the Limburg counts are separate from the, say, Cole counts. He adds a word or three more, and then sits. Pollio adds only a few words of her own in reply, mostly underscoring once more than the “boats operation” comprises, well, a single, overarching operation involving many different boats. She concludes.  (This transitions nicely into some pending motions to compel discovery and witnesses, both within the 319 series. But that means a foray into classified information, it seems, and thus a Rule 505 hearing on the handling of secrets in the courtroom; we’ll get to that later today, it seems.)

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IN AE256D and 256D, Kammen and his colleagues move to strike the government’s notice of a bill of particulars.  According to Kammen, prosecutors have cited as an “aggravating” factor the fact that the attack on the Cole was intended to intimidate a civilian population---but without telling anyone what civilian population might be at issue, or which civilians count. For that reason, the prosecution was required to clarify its stance, by submitting a bill of particulars---essentially a further explication of its position.  But as the defense lawyer interprets the government’s materials, it seems that there hasn't been any clarification at all. As he reads things, any civilian is fair game, provided he or she might have been intimidated by the attack on the navy vessel in 2000.  That’s not an especially particular bill of particulars, in his view.

Kammen piles on: Prosecutors have referred to any “non-military” member of the U.S. armed forces or its "coalition partners." But that’s weird, as the U.S. wasn’t at war in 2000, when the Cole attack occurred; what “coalition” existed then?  Come on, Kammen argues, a bill of particulars must be specific; and the current prosecution filings are anything but. Can a random citizen of Buffalo claim to be have been “intimidated” by the 2000 Cole attack?  It’s classic, vague pleading. Thus his crew wants the aggravators and bill of particulars both to be knocked out of the case---as Spath has done before, Kammen notes, with respect to other problematic aggravators. Death penalty law requires specificity as to the affected civilians in the year 2000. (Kammen adds that if civilians in later years can be counted for these purposes, then the evidence of their intimidation makes clear the “relatedness” of all counts for appellate purposes---as Pollio suggested in her argument regarding postponement.)

Rebuttal comes now, from prosecutor Navy Lt. Paul Morris. First, the audience for terrorism can be the global civilian population, he argues, as the court well knows: Judge Spath hasn’t rejected this theory, contrary to Kammen’s argument moments ago. Secondly, there’s the government’s burden of proof: that’s beyond a reasonable doubt, come trial-time.  Upon carrying that burden, then and only then does sentencing and aggravation come into play. And that would be subsequent to a finding about, say, the existence of “hostilities” at the time of the alleged conduct; the defense thus has no grounds to complain, right now, about the evident theory that civilians in years after 2000 might have been intimidated by Al-Nashiri's alleged crimes in that year.  The legal standard for a bill of particulars, after all, is not “does this help the defense,” but is it “necessary” to making a defense in the first place---a standard that Morris and his colleagues clearly meet.  This is terrorism, your honor, a tactic that has a wide, far-reaching audience.  The bill of particulars is more than sufficient, and should stand.

Kammen asks again: What are the countries in the "coalition" affected by this conduct, and why can’t they be identified in a bill of particulars?  The government won’t say.  That matters, given the many possible theories in play. Suppose Al-Nashiri’s alleged actions were meant to influence Yemeni civilians, and Yemen’s government---but Yemen wasn’t a “coalition partner.”  What then? Kammen says he absolutely must see the evidence in question, both in order to discern the prosecution’s reasoning, and to ensure that death penalty law isn’t wildly misapplied.  The bill and the aggravator should be struck, he says.

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Finally, we move to AE324, 325, and 326---government motions in limine to admit certain documentary evidence gathered from a truck and two houses in Yemen. Speaking for Al-Nashiri, CDR Brian Mizer takes issue. As Kammen mentioned earlier, most if not all of the evidence in question here initially was gathered by Yemeni officials, in Yemen, and not by the FBI---the latter only got involved later on.  Mizer consequently wonders how the prosecution can lay a foundation for the evidence in question at all. For his part, Judge Spath assures the defense lawyer that no evidence will come in without a proper foundation being laid; but Mizer adds that the litigation on admissibility should be conducted in the presence of the members, not a long time beforehand.  He’s obviously keen to impeach the witnesses that the government will bring along, in the hopes of laying the needed foundation. (Court and counsel then turn to some documents addressed by the three motions; we don’t see them. But its clear that the documents speak to the question of who gathered what evidence from a crime scene Yemen, and under what circumstances---the heart of Mizer’s complaint.)

Over to trial counsel, Marine Maj. Winston McMillan. He answers a question Judge Spath had put to Mizer: why do the admissibility analysis now, but then deal with many of the same issues later on, before the members?  In the prosecutor’s view, the answer is that pre-admission protects the members, by exposing them only to admissible stuff;  helps the defense, by better defining the universe of evidence in dispute; and assists prosecutors, who can file needed interlocutory appeals challenging the exclusion of evidence.  The idea, in short, is judicial economy. When asked, McMillan agrees that, before the members, the defense is free to attack chain of custody, weight and credibility, and so forth---even if an item of evidence has been deemed admissible earlier. Therefore, Judge Spath observes, all witnesses called on pre-admission can be called back at trial for cross-examination, right?  McMillan agrees. We can double up in this way, so to speak.

Here’s Mizer in reply, who observes that, yes, many if not all of the witnesses touching Yemeni evidence---tampered evidence, in his view---will be coming back at trial. Judge Spath’s ruling ought to note that, Mizer says. It also ought to reject any suggestion that strategic assistance to the prosecution may properly be considered a factor in the pre-admission analysis, too.

McMillian gets the next-to-last word: He urges Judge Spath to opt for the more efficient process, of admitting the evidence in question now to the extent appropriate.  And he underscores that the defense always can confront admitted evidence in any event at trial. (Interestingly, Judge Spath says that pre-admission sessions are likely to push off trial, wryly observing that some parties have been keen to push this case along. Be careful what you wish for, he seems to say.)  Mizer adds the last word, insisting that his crew be allowed to cross-examine government witnesses as hostile, come trial time.

With that, court and counsel turn to Rule 505 hearings concerning classified material---something which brings our public proceedings to a close. See you tomorrow at 0900.