Terrorism Trials: Military Commissions

Al-Nashiri #9: For CIPA Nerds Only

By Benjamin Wittes
Wednesday, January 18, 2012, 3:56 PM
By Benjamin Wittes & Ritika Singh
Leaving the subject of mail, Judge Pohl announces that the parties have resolved on their own the issue that gave rise to government motion AE014 and that a protective order has been written and is ready for him to approve.Judge Pohl then turns to defense motion AE024, the defense objections to a government ex parte request for a protective order. The issue here relates to summaries of classified information the government has prepared under the CIPA-like provisions of the MCA.Reyes begins by reiterating his request for an opportunity to make an ex parte presentation to Judge Pohl. He wants an opportunity to look at the proposed summaries of evidence to see if they are adequate substitutions and make a case against them. Reyes continues by reading from M.C.R.E. 505, which says that once Judge Pohl makes the determination that the substitutions are adequate, there is no opportunity for redress or reconsideration. The defense objects to the idea that it will have no opportunity to argue against the adequacy of the summaries. Reyes says that in CIPA, the defense can go back to the trial judge and ask for a reconsideration, but it cannot do so here under the current rules. So he wants to see the substitutions before decision and have an opportunity to respond before the judge makes a ruling. Nothing in the statute precludes this, he argues. He sits down after an admirably brief presentation.
But the brevity is short-lived. Government counsel Joanna Baltes says that the defense is not prohibited from requesting additional discovery information once the summaries are approved. Once the defense gets the summary substitutions, she argues, there is nothing preventing it from filing an additional discovery motion if defense lawyers think important information may be missing from the summaries.She next addresses CIPA. When the MCA of 2009 was enacted, there was the sense that CIPA should be adapted and incorporated because it has been successful in federal courts since 1980. The federal courts have also handled a lot of national security cases, so there are cases on the books that guide practice. However, CIPA was really designed for espionage cases, not other national security cases. So there are differences too. And the reconsideration portion of CIPA is not relevant here because the defense isn’t entitled to see the underlying material. So there is no way for the defense to determine adequacy of the summary if it is not looking at the underlying documents. That’s the job of the judge, in consultation with the government. The government also has continuing discovery obligations, she argues, and the military judge has the obligation to determine whether the government has met its discovery obligations. So there are remedies, just not reconsideration.
Judge Pohl asks, hypothetically, what happens if a summary is released to the defense, and the defense believes it is inadequate. Is there anything preventing Judge Pohl from going back to the source document and checking? Baltes says that there isn’t, but the government is seeking some finality in the protective order. If Judge Pohl determines that the government hasn’t met its discovery obligations, they can go back, without causing any harm. If the defense receives a discovery summary and files an additional discovery request saying there is something missing, that would trigger a review from the government and if the judges wants to look again, of course the judge can do that. So, Judge Pohl says, if the defense has a specific issue with a specific summary, it can file a discovery motion. He says he thinks both sides are really arguing the same thing, though he acknowledges that this might be wishful thinking.
Baltes largely agrees, through she doesn’t agree that the defense should be allowed to see the summaries of the information before Judge Pohl signs them.
Judge Pohl then lays out the way he sees a procedure working: He will do the reviews, sign the orders and summaries, which will then be given to the defense. If the defense believes that certain summaries are inadequate, the defense can file a discovery motion identifying which summaries are inadequate. How about we address it that way, he ask? This procedure, he says, complies with statute, complies with the existing protective order, and it addresses the defense’s concern. Baltes concurs with a couple of minor clarifications.

Judge Pohl, clearly pleased with himself, says to Reyes: “I think she gave you everything you wanted.”

Reyes suggests that the procedure Judge Pohl has outlined is precluded by statute, which makes the substitutions final and unreviewable after he okays them. He also objects to treating his objections to summaries as a discovery matter. This is about the adequacy of the summary, he argues, not about the availability of more information, in general. He would be surprised if the government didn’t come back in some hypothetical case in which the defense argued the inadequacy of a summary and say that the statute precludes further review.

Judge Pohl says that the government maintains that he can revisit the issue as he sees fit, the government doesn’t oppose the procedure he has outlined, so it would be the law of this case: if additional information comes to the defense that suggests a summary is inadequate, he will revisit it, he says. Just remember, you have to call it a motion for additional discovery, not for reconsideration.

Reyes says that if discovery requests can include the argument that a substitution is inadequate, then he agrees to the procedure. But Reyes also insists that these discovery requests be submitted ex parte, so that the defense does not have to give away its strategy in order to challenge a substitution.

Judge Pohl says he is in process of doing some of these reviews now, and that he is almost done. He asks whether he should delay some of those reviews to wait for the defense’s submission. Reyes says no. He should go ahead and issue them.

So far, Judge Pohl seems to have brought everyone to yes. But now things fall apart.

Baltes declares that the government objects to letting the defense file ex parte motion on inadequacy. She and Judge Pohl have an extended exchange on this point--the crux of which is that Baltes says that only the government really knows if there is any information missing from the summaries. Judge Pohl explains that this may be true in a real discovery request. But if the discovery request is merely a way of getting around the reconsideration bar, the motion would only require him to look at the original source document and see whether the summary is complete.

This alarms Baltes, because it rubs up against government’s interest in finality in the summary process. Proving Reyes correct that the government would insist that the summaries are unreviewable, she argues that interpreted this way, the procedure Judge Pohl proposed would ru contrary to the reconsideration language. By contrast, if the defense files a discovery motion that goes to government, then the government has the obligation to figure out whether there is additional information that may be responsive to request--both in the document and elsewhere.

But then, Judge Pohl objects, in order to challenge the adequacy of a summary, and to tell the court the context of inadequacy, it would haveto reveal its trial strategy to the prosecution. At this point, Baltes acknowledges that there could be an ex parte motion in such a case if there is new information. But it can’t be the norm. Reconsideration that is based only on adequacy is not allowed, she reiterates. But if the defense believes there needs to be additional discovery, it can file a motion, and the onus is then on the government to provide additional information. But what if, Judge Pohl pushes, they don’t want to disclose information to you? Cutting the government out of the conversation, she responds, is inconsistent with CIPA and precluded by Rule 505.

Baltes ends by pointing out that there is going to “be an increased burden” on Judge Pohl if he adopts this procedure.

Judge Pohl then rules--or tries to: To the extent the defense motion requests an opportunity to make an ex parte presentation on the summaries, it is granted, he says. Judge Pohl says he intends to follow a Rule 505 procedure. If the defense doesn’t like a summary, it can submit a discovery request. This will be treated, he says, as a normal motion as a default matter. If the issue, however, becomes one of needing to submit additional information to the court only, the defense can at that point file an additional motion and the parties can litigate whether that’s allowable.

Reyes objects that under this procedure, he will still sign the order and, by so doing, will finalize the summaries and sign a factual predicate that the government has met its discovery obligations. What do you want me to do, Judge Pohl asks? You have to wait for our input, Reyes responds.

Judge Pohl is frustrated now. I just asked you, he says, whether you wanted me to wait for your input and you said no. But that, Reyes responds, was when your procedure allowed ex parte objections later. If the procedure is as you outline it now, you have to wait for our input. When will I get it, Judge Pohl asks? Well, Reyes says, we still have to do our investigation, get discovery, and develop an entire theory of the case. Stay tuned. Judge Pohl is incredulous: So I don’t get to complete these 505 reviews until you complete your investigation, which your trial schedule suggests will take years? That’s right, Reyes responds. Is that the procedure in federal court? No, says Reyes, because in federal court there is no bar against reconsideration. Ditto in courts martial.

In obvious frustration, Judge Pohl recesses the commission for lunch.

. . .

Lunch is over, and we’re facing more unexplained delays. With any luck, Judge Pohl is getting something done in his chambers and things will be quick when he returns.

Judge Pohl finally returns and says the reason for the delay was that the parties were discussing trial schedule in a private 802 meeting.

Moving back to defense motion AE024, Judge Pohl has a question for Commander Reyes. Judge Pohl says that he will not delay his 505 reviews for two years, but only a month. Do you want me to delay so you can provide a submission or not, he asks?

Pohl says that during the break, he looked back at the statue and regulation. This information, he says, is not released piecemeal but in total. Once that process is done and released to defense, to come back and revisit the summaries that have already been released is prohibited. So, looking at what the statute says, after the 505 reviews are completed and the government has the option to do whatever it needs, there will be a protective order and the decision will not be reconsidered. Congress has said this, he says.

Reyes says that the problem is that Judge Pohl is being required to make this judgment without hearing from the defense. So we are asking, he says, for the ability to review the discovery--at least 70,000 pages--do our own investigation, go to Yemen, and then make a contribution to that discussion before you make your decision. We can’t do this in one month, in any way, shape or form, says Reyes. We need to demonstrate that the substitutions do not provide the accused with substantially the same ability to make the defense as the underlying material would. We can’t do that in a month, only after we have time to do a full investigation. In order to make a proper assessment under the criteria, he argues, the judge must have a fuller presentation.

Judge Pohl clarifies that Reyes wants to wait 18 months or two years. Reyes hedges but doesn’t back away from it. Judge Pohl says that if he doesn’t give him that extra time, would he take a month instead? Reyes declines and sits down.

Judge Pohl next asks trial counsel Baltes if there is any reason for him to wait in conducting his 505 review?

“Absolutely not,” she says. Rule 505, she says, only provides a procedural mechanism. It does not abrogate the government’s discovery obligation. If facts change or new information comes to light, the government is under an obligation to look at the information again, she says. She says she would urge Judge Pohl to rule on the motion the defense filed. If the defense later feels that it has not gotten the information it feels it is entitled to, it can come back and file an additional discovery request to the government. And if it’s not satisfied with the response, it can file a motion to compel. The military judge is the one who ultimately determines whether the discovery will or will not be granted.

Baltes says defense counsel might not be used to this kind of discovery. But in practice, the government routinely seeks these types of ex parte motions in Article III courts. She says she is not aware of a single case that has authorized reconsideration of summaries. She again urges the defense to follow that procedure. She then sits down.

Reyes cites Judge Pohl to the Libby case, where, he says, there was a reconsideration. But Judge Pohl says Libby is irrelevant because that was not under the MCA but in federal court. He says he cannot ignore the statute. Reyes says he doesn’t want Judge Pohl to ignore the statute. But he pushes him again to postpone his decision--which he acknowledges as final--until the defense has had the opportunity to review the proposed substitutions. He then asks if Richard Kammen, his capital defense expert, can address the issue.

Kammen again reiterates that the defense cannot possibly go through all the discovery material in a month--that is functionally impossible, he says. The problem, he says, is that the defense doesn’t know how long it will take for resources to come through--or how long it will take to investigate the case. The result, he says, is that we can’t sit here today and give you any meaningful theory of mitigation.

We don’t know what these 505 notices pertain to, he says. The problem is that you are being asked to certify that they are adequate in a “complete factual vacuum.” Let us see how quickly we get resources; let us begin to conduct our discovery and do our investigation, says Kammen, and then we’ll see what works. The government cannot possibly know what’s relevant to the defense. All we ask, he says, is that you hold off. Then when we’re back in April, he says, we may have a better sense of what’s realistic. You cannot make decisions like this about a capital case in a complete vacuum. It’s fundamental unfairness, given the high stakes.

Will the government suffer any prejudice if I delay until April, Judge Pohl asks trial counsel Mattivi? Yes, Mattivi says. The process is in place. The government, he says, has no interest in the military judge’s making decisions in a vacuum. The government wants the accused to have all the robust protections to which it is entitled, so it can have a conviction sustained on appeal. Mattivi stresses that everyone has been working on this case for a long time. If we delay, he argues, how long before the defense attributes that delay to us? Judge Pohl says, just to be fair, that the government has had this case for longer than the defense has, and it’s still preparing. Mattivi says that there are certain things the government can’t do until charges are referred.

Judge Pohl asks Mattivi what he makes of giving the defense until April--and not longer. What prejudice do you suffer if I do that, he asks? Mattivi says he has a necessity argument, not a prejudice argue. We’re going to get requests for discovery in that time, whether we wait or not. We’re prejudiced by delaying the process, says Mattivi, such that the government can’t respond to discovery requests.

Judge Pohl then asks Baltes to clarify the process if the defense makes a subsequent discovery request. She does so.

And he then makes his second attempt to rule--this time ending the issue: Judge Pohl rules that the defense’s request to submit ex parte material concerning the 505 review is granted. Kammen’s request to delay that ex parte filing until April, he says, is also granted. Absent extraordinary circumstances, however, April will be the only delay the defense will get. At that point, he says, the 505 review will proceed. The defense’s motion to review the 505 requests is denied, as it is not consistent with the text of the statute. And just to be clear, Judge Pohl says, once the protective order is issued, it will not be reconsidered.