Case Coverage: Military Commissions

4/27 Motions Hearing #1: Military Jurors and Defense Investigators

By Wells Bennett
Monday, April 28, 2014, 4:26 PM

Our special Sunday session convenes at 9:02, with all parties present---including Al-Nashiri.

The group commences with the briefest procedural discussion of AE120C, better known as the government's request to reconsider Judge Pohl's consequential order compelling discovery into the RDI program, and Al-Nashiri's treatment abroad.  The prosecution doesn't oppose a slightly longer time frame for the defense to submit its reply to the reconsideration motion; it thus appears the timetable will be enlarged somewhat.

A fulsome debate follows on AE261, the defense's bid to compel discovery of additional information regarding the panel of military officers that, eventually, will comprise the commissions' members at trial. Al-Nashiri's Learned Counsel, Rick Kammen, says that the motion is grounded in several concepts, chiefly the manner by which the Convening Authority selected the 37 would-be panel members. He's thus after what Kammen calls "demographic information"---for example, the total percentage of eligible personnel in a given group, miitary-wide (he mentions African Americans and Muslims), which Kammen and company might compare with that group's representation in the pool selected by the Convening Authority.  Was the selection random?  (The military judge answers that there's no "random selection" in play, in the commissions--and that the same is true of courts martial.) Or was there a more calculated method to the madness?  Who in the selected group has TS/SCI clearances?  Which statistical anomalies should Al-Nashiri's defense team explore, and which ones should they tolerate?  The sought discovery would bear on all these questions.  Kammen lastly underscores his greatest fear: that, because the Convening Authority referred the case capital, he also would be inclined to pick panel members likely to vote for both guilt and a death sentence.

The baton passes to prosecutor Lt. Bryan Davis, who opens with this clarifying note: the government has complied with Judge Pohl's past discovery orders, and in particular, handed over a memo from the Convening Authority, regarding panel nomination.  He adds that the "demographics" issue is no mystery: an easily-Googled report sets forth the demographic information on the various service branches, and this can be just as easily compared to selection information furnished to Al-Nashiri's defense.  To be sure, Davis joins heartily in the court's seeming doubt of Kammen's "randomness" claim: no law requires a court martial panel, much less a Guantanamo military commission panel, to represent a cross-section of the military. Instead, the selection criteria have to do with (among other things) training, experience, temperament, and so forth.   When asked by the court, Davis says that any uncleared selectees likely will have to receive TS/SCI clearances, but that the interval from selection to trial should suffice to permit that.

A rebuttal follows, from Kammen---who can't simply accept that the selection process isn't random. Nevertheless, he explains, his side still needs to now how un-random the process might be. Kammen notes, for example, that the Convening Authority seemingly has excluded generals from the pool.  Why? Kammen also notes that the purposes of courts martial and commissions are different; the relationships between the convening officer and the would-be jurors should reflect that.  The military judge observes that the structure here was designed by Congress, and approved by the President.  Kammen acknowledges as much, but predicts that a civilian court might find the differences between this selection process, and that of a civilian court in a capital case, to be so great the commissions mechanism "cannot stand."  A few words more, and Kammen brings our argument to a close.

The argument on another motion to compel, AE262, opens.  In this one, the defense asks the court to appoint an expert, Dr. Robert Lessemun, as a part time investigator.  As Maj. Alison Daniels explains, the appointment is appropriate, given the concern expressed by Congress previously, regarding the commission's prior "systemic issues" in underfunding of commission cases---capital and non-capital alike.  And yet here, the Convening Authority had turned down the defense's request for Lessemun, reasoning that Al-Nashiri's side already had many experts and investigators.  But, as Daniels points out, that's wrong: the other people are mitigation experts, victim liaisons, and similar personnel.  The defense lawyer then summarizes Lessemun's credentials, including his significant experience in complex death cases, and his current clearance.  For purposes of context, Daniels observes that the prosecution certainly isn't having trouble getting expert help in pursuing its case: its investigation, after all, is conducted jointly by personnel at the FBI, the NYPD, the NCIS, the Air Force, and other U.S. and Yemeni government agencies.  Having that in mind, Daniels urges Lessemun's appointment---and suggests that Al-Nashiri's trial might be fundamentally unfair without it.

Lt. Paul Davis, a prosecutor, thinks differently---beginning with the defense's failure to establish (as it must) why Lessemun's appointment is necessary to begin with.  It's particularly unclear, Davis goes on, "what it is that [Lessemun is] going to do with that capital experience that's specific to him," and why other already-assigned folks can't pick up the slack.  What's more, the defense has two full-time investigators already---at least one of which speaks needed language, and is a Muslim.  The prosecutor lastly dismisses Daniels' effort to compare the government's resources and the defense's resources, given the different objectives, functions, and legal burdens faced by the two sides.

Now here's Daniels in reply, clarifying: yes, we have mitigation specialists (two) and investigators (two).  But the latter don't have the four years of institutional knowledge that Lessemun gained, during his previous service on this very case; the currently assigned guys thus require lots of background briefing and getting-up-to-speed, an impossibility given the advancing trial date.  And neither current fact investigator has capital defense experience, which Lessumun has; instead, and quite unlike Lessemun, both cut their teeth as investigators for the government. Daniels adds that Al-Nashiri's defense team can't use other experts for additional investigative work, given limits imposed by the Convening Authority on the experts' time allocation.  The lawyer lastly argues that, if appointed, Lessemun could do his job without a security clearance---though Daniels also once more stresses that, to the defense's knowledge, Lessemun's clearance is valid right now.