Terrorism Trials: Military Commissions

Al-Nashiri #4: Wrangling Over Ex Parte Requests for Assistance

By Benjamin Wittes
Tuesday, January 17, 2012, 12:10 PM

Military Judge Pohl next turns to the question of ex parte requests to the Convening Authority for expert assistance (AE010). Richard Kammen, for the defense, explains that the Convening Authority has rejected the joint request of the parties for ex parte presentations with only de minimis notice to the other party. There is an extended discussion between him and Judge Pohl over whether federal civilian law or court martial procedure should guide the way commissions proceed here. Kammen attempts to persuade the judge that the whole intent of Congress was that the defense be fully resourced as it would be in federal court. This requires ex parte submissions. Virtually every federal and state court has a mechanism for this sort of thing, he argues. In courts martial, the opposing side has more of a voice. And the Convening Authority apparently thinks that the commission rules require something similar.

Judge Pohl says he doesn’t think he has the authority to tell the Convening Authority what to do. If I order it and the Convening Authority says he’s not going to do it, where do we go from there? Kammen says he thinks Judge Pohl has the authority to interpret the law. If Judge Pohl adopts an interpretation of the law on this point, that’s the law of this case, and he has trouble imagining the Convening Authority not honoring it. At the end of the day, Kammen argues, you control the courtroom, not the Convening Authority. Judge Pohl says he doesn’t think he orders the Convening Authority to do anything; in his view, he asks the Convening Authority to do things or else he abates the proceedings.

Judge Pohl then tries to identify how de minimis the defense envisions minimal notice to be--clearly hoping to thread a needle between the defense’s vision and the Convening Authority’s. Kammen says he thinks the Convening Authority is contemplating that the justification for an expert would be provided to the government. If it were just a matter of notice about the subject matter of testimony--say, a request to hire an expert to consult on DNA--that would be one thing. But the Convening Authority is demanding much more, sharing the entire justification for testimony with the other side in a fashion that would give away whole aspects of trial strategy. The notion that the prosecutor would get a vote, he argues, is in this context absurd.

Judge Pohl says he thinks applying a truly de minimis notice standard is inconsistent with the rule (the relevant rule is Rule of Military Commissions 703(d)), but that he envisions something only a little more robust. To apply the rule as written requires more than de minimis notice. It requires at a minimum identifying the name and the subject matter of the expert. If the defense believes that this requires the disclosure of privileged material, it is free to argue that the situation presents an extraordinary circumstance justifying a departure. The notification need not be an extensive discussion of strategy. It can be a generic discussion. If that kind of notice is unacceptable to the Convening Authority, then the defense can come back. But Pohl says he can’t contemplate non-notice of name and expertise to the government.

Kammen says he has identified 35 different kinds of experts who may need to be employed by the defense. If the court believes that he can comply with Rule 703 by submitting two sentences to the prosecution and the Convening Authority on each, that’s fine, but he thinks that the Convening Authority will want to hear about costs, about the number of hours, and the like. Judge Pohl asks what Kammen’s objection is to giving cost information to the government. Kammen responds that the government doesn’t have to do provide that information to the defense.

More broadly, he argues again, the justification for experts often involves privileged information that the government simply can’t have. Judge Pohl responds that there is no waiver of privileged information here, and that if such a thing were required, that might be an extraordinary circumstance justifying Kammen’s returning to the court. Kammen says the Convening Authority rejects the privilege argument in every case, so he’s not optimistic.

Mattivi argues for the government, very briefly that the defense is asking Judge Pohl to step outside of the rules and craft a remedy on his own. He can get to the same result, he argues, by following the procedure he has outlined, which has the benefit of complying with the rules.

Judge Pohl then rules as follows: He denies the motion for de minimis notification as the defense defines it. To comply with Rule 703(d), he says, the defense needs to provide to the Convening Authority and to the prosecution the name of witness, the assistance requested, and the witness’s expertise. If, however, the Convening Authority refuses to consider these requests on grounds of incompleteness, he will consider this a denial, and the defense should come to him. Similarly, he says, if the Convening Authority demands privileged information be disclosed in support of the application, he will consider that also to be a denial, and the defense should similarly come back to court.