Guantanamo: Prosecutions

Nashiri Motions Hear #13: Wherein the Court Goes Down a CIPA Rabbit Hole

By Benjamin Wittes, Lawfare Staff
Thursday, April 12, 2012, 10:52 AM

The court next turns to the issue, which it heard a couple of months ago, of whether it has the authority to hear a defense motion to reconsider any decision to accept Rule 505 evidence substitutions. The statute is pretty clear on this point, barring the accused from challenging a substitution. Defense counsel Lt. Commander Stephen Reyes argues that this bar is unconstitutional.

Judge Pohl cuts him off. Is this motion ripe, he asks? Reyes says he thinks it is, because barring a related continuance he has requested, the judge will in the near future make a decision on the adequacy of the government’s substitutions. Once he decides they are adequate, Reyes argues, we are at legal impasse.

Judge Pohl says that he has given the defense time to submit ex parte its theory of the case.  He gave it that opportunity so that when he finishes his review of the summaries, he can see whether they are adequate. When that’s done, and when the defense receives the substitutions, if the defense doesn’t think they are adequate and would like to ask for reconsideration, isn’t that when you should raise this concern?

Reyes responds that once the judge makes his decision, the defense will be barred from asking him to reconsider the adequacy of the substitutions. So the decision of whether he can reconsider must be made before the judge makes a decision to accept substitutions. Once you decide to accept the substitution, Reyes tells Judge Pohl, we’re done. What’s more, the government suggests that by approving substitutions and approving the protective order, Judge Pohl will certify that the government has fulfilled its discovery obligations in relation to that material. So the decision is monumental.

Judge Pohl asks him where there is room for interpretation in the statute. Reyes responds that the statute impinges upon the court’s authority to ensure fairness. This is death penalty case, he says, and there is thus a higher standard for a reliable verdict and sentence. Here, Congress on the face of the statute said that once the judge makes a substitution decision, it cannot be reconsidered, and that is a safe harbor for error. The defense knows of no court where a judge is told by the legislature that a decision cannot be revisited or reconsidered, even if that decision was made erroneously or is the product of manipulation. That’s too much in a death penalty case. He refers Judge Pohl to a quotation from a judge on the Court of Appeals for the Armed Forces, to the effect that if a judge realizes that he has erred, then justice would be thwarted if strict interpretation precludes him from correcting that error.

So what’s the basis for ignoring the plain text of the law, Judge Pohl asks? It interferes with Nashiri’s due process rights in a capital case. And what are the source of those due process rights? Boumediene, says Reyes, which allows for constitutional protections to be imported to Guantanamo. So you acknowledge, Judge Pohl says, the need for some higher authority to overrule or ignore a clear statute? The accused has both constitutional and statutory rights, Reyes says. What statutory rights authorize the court to disregard the law, Judge Pohl asks? Judicial independence, responds Reyes. A judge has the power to disregard the plain language of the law, on the theory that the statute impugns judicial independence? Both that, says Reyes, and what that independence stands for. This is about fundamental fairness, he says, and the judge must ensure this and, in this case, to ensure freedom from error as well. Congress has skewed that.

They go back and forth about how to interpret the statute, but Judge Pohl comes back to the fact that at the end of the day, the motion is just not ripe. You say there is a safe harbor for error. But there is no showing about inadequacy because I haven’t released the decision yet, he says. When I do, we can discuss it.

But after the substitutions are released, Reyes objects, the government’s position is that we are done.

But the issue is not ripe now, Judge Pohl insists. All you are doing is saying that you may object at some point. When you want to object, you can make this very motion, he says. I don’t want to disregard the plain language of a statute based on something that might not happen. What you are really asking is that I ignore the plain language of the law based on a complaint that you might or might not have. That is an advisory opinion--a hypothetical.

It’s not a hypothetical, Reyes insists, because this is a death case. The difference is that now you want our ex parte submission, after we’ve had discovery for only a month. And that’s important because six or seven months from now, after the defense has had the time to do our investigation into mitigation, our case may be entirely different than it is now. If you make decision about summaries now, that damages us if later on if the substitutions turn out to be inadequate. We cannot discern the adequacy of the summaries now--and the bar on reconsideration will prevent us from challenging it later. Once you make your decision, that is presumably binding, even though the defense hasn’t had much time to review, investigate, and learn its way around the case.

He sits down, and Joanna Baltes, the prosecution team’s designated CIPA nerd, takes the podium.

The plain language of the statute controls here, she says. The order of the military judge authorizing summaries under Rule 505 is not subject to a motion for reconsideration. But nothing in the language of the statute prevents the judge himself from later determining that his decision was wrong.

Judge Pohl seizes on this point. So the statute prevents the defense from moving for reconsideration, but there’s nothing to prevent the judge from doing so sua sponte? No, Baltes says, and for good reason.

Baltes says she takes issue with the defense suggestion that Nashiri has some constitutional right to due process. But even assuming there is one, there’s no violation of due process here. No one is entitled to go through the government’s material and determine what is discoverable. In an Eleventh Circuit CIPA case, she points out, on the same facts, the defense claimed prejudice because of the of ex parte nature of the CIPA process. The court found no due process violation, because there is no right to go into the government’s files and determine what is discoverable. The Supreme Court said the same thing in Pennsylvania v. Richie.

Judge Pohl asks how procedurally he should go forward when the summaries are released.  The defense is barred from asking him for reconsideration. Presumably, they have already submitted their ex parte material outlining their theory. Imagine that down the road, they get more information. What if they file some amended theory of the case. Is that okay? Can the judge himself then reconsider on his own?

Baltes agrees that he can. The defense is not in a position to determine whether the summaries are adequate, because they don’t get access to the underlying materials. If they believe there is something they are not getting which they are entitled to, they can file a discovery motion. But what if they file an amended theory of the case ex parte, Judge Pohl asks? They can’t seek reconsideration, but if I receive such a document, could I do a sua sponte reconsideration?

You absolutely could, Baltes says. There are many safeguards that protect the defense here: the continuing discovery obligations on the part of the government, for example. If the defense files a motion and provides additional facts, the government must go back and look at it. If they bring it to the judge’s attention, and the judge says that it’s relevant, the judge can order the government to take action. But the defense should be seeking discovery, not filing a motion for reconsideration.

Judge Pohl says he understands the government’s discovery obligations. But he comes back to his question: the statute prohibits defense requests for reconsideration, but it does not preclude court reconsideration, right? Baltes agrees and sits down.

Reyes rises for rebuttal. To get a better understanding of the problem, he offers a hypothetical. If there are summaries of medical records, and those are produced after a 505 review, and the defense develops its case and analyzes these summaries, and suppose it finds not that it wants to change its theory, but that it wants to argue that these substitutions are inadequate. The question is whether that is allowed. The defense would need the underlying records to really see if the material is properly filtered and summarized. Is that allowed? Reyes says he doesn’t know.

The statute, Judge Pohl says, states that you cannot file a motion to reconsider. But it does not prohibit me from reconsidering.

So we have to go through a Kabuki dance, says Reyes.

Responds Judge Pohl,if you supplement your theory of the case, you can alert me to any problem you have. If you have a problem with discovery issues, you can go to the government and file an additional discovery request. So, to be clear, Reyes asks, can our amended theory of the case include why we think substitutions are inadequate?

Look, says Judge Pohl, I gave the defense the option to submit its theory of the case. You keep referring to the adequacy of the substitutions. But how can you discuss their adequacy before you get them?  Once we get the substitutions, says Reyes, we will want to present arguments about why they are inadequate. We don’t want to present a general theory of case. We want to make a particularized showing as to why the substitutions are wrong. You want, Judge Pohl says, me to give you the proposed substitutions without a protective order, and then come back and say that there are shortcomings.

No, Reyes says, if you give us the substitutions and we have a chance to investigate, take a look at these hypothetical medical records, we want to be able to come to you ex parte and in camera and say this is why the medical records are bad or that we need the underlying classified documents. Why is that not discovery, Judge Pohl asks? Because it does not mean we need more discovery but that we need the actual classified documents for the existing discovery.

That sounds like discovery to me, says Judge Pohl.

Judge Pohl then rules: I understand your position, he says to Reyes, but you’re talking about what might happen, not what is happening. I don’t think this issue is ripe. You have no basis for your request, as you don’t have the summaries to begin with. Secondly, the statutory language is plain. So your motion is denied as unripe without prejudice. You can refile it once the summaries are released. But understand that after submitting your theory of the case, the judge can still reconsider a decision to accept summaries sua sponte.