Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

3/3 Session #1: Suppression, and SSCI Matters

Wells Bennett
Tuesday, March 3, 2015, 10:39 AM
Air Force Col. Vance Spath, the military judge, resumes proceedings.  The question is what those proceedings will comprise, the docket having been winnowed greatly, both by yesterday’s unlawful influence ruling and by some still unresolved questions about classified material.  Could there be unclassified argument with respect to AE319F and AE333?

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Air Force Col. Vance Spath, the military judge, resumes proceedings.  The question is what those proceedings will comprise, the docket having been winnowed greatly, both by yesterday’s unlawful influence ruling and by some still unresolved questions about classified material.  Could there be unclassified argument with respect to AE319F and AE333?  (It seems the issue of how to handle certain classified matters bearing on those motions is still awaiting resolution by the military judge.) Apparently not; that takes Judge Spath to AE327, a motion to suppress statements by Al-Badawi to federal agents. There’s a wrinkle there too: those statements comprise at least some hearsay, a subject covered by another government motion debated yesterday.  The procedural kinks as to the latter are still being “worked out,” Judge Spath observes---thus no argument will happen today on AE327, either. Wait: The agenda also still includes AE335.  It’s likewise a motion to suppress, the suppression this time directed at statements by Al-Darbi, another GTMO detainee and commission accused---who happens to have entered into a pre-trial agreement with prosecutors. Court and counsel quickly clarify this detail: It seems Al-Darbi could be a prosecution witness in the case against Al-Nashiri. And the idea is to have him testify only, rather than to admit his prior statements which were made during a 2002 “enhanced” interrogation. Only the future testimony is implicated by the motion. For his part, Lt. Bryan Davis sees the filing as touching legal issues only, despite a belated request for witness testimony---which, the prosecutor complains, the defense filed only last night.  (Recall that evidentiary hearings, as opposed to purely legal ones, have been put off for the week, in light of Judge Spath’s ruling on unlawful influence.)  It’s a question of standing only, Davis says, one which the court can answer without recourse to any evidence at all. The prosecutor telegraphs his argument here: Al-Nashiri has no standing to challenge a violation of Al-Darbi’s rights, especially one lying off in the future. Judge Spath is curious, so he asks the defense for argument on AE335 now.  One of Al-Nashiri’s attorneys, Lt. Cmdr. Jennifer Pollio, observes initially that Al-Darbi’s testimony bears only on the Limburg charges---which were dismissed, which are the subject of a pending appeal, and evidence related to which cannot, under commission rules, be addressed until that appeal is resolved. Davis disagrees on the procedural point: Al-Darbi’s testimony bears not merely on Limburg charges, but also on the broader theory of liability described on the charge sheet. The court reserves judgment on the threshold issue of Limburg-relatedness. Pollio therefore turns to the substance, beginning with her rejection of Davis’s suggestion of untimeliness in seeking to compel witness testimony.  It’s “unfathomable,” she says. And, at any rate, there’s no harm in taking up the motion to compel. But what about the merits? Judge Spath notes that the government doesn’t plan to offer any of the detainee’s statements to interrogators---evidently because of the use of so-called “enhanced interrogation” methods which it now acknowledges as torture. Given that, how can Judge Spath “suppress” Al-Darbi’s down-the-road trial testimony, in advance?  Pollio: we need a hearing on the residual taint of unlawful interrogation, now; what if that taint is so pervasive as to preclude Al-Darbi from ever taking the stand?  The court counters by wondering about Al-Darbi’s standing; Pollio insists that the accused, Al-Nashiri, undoubtedly has standing to challenge the use of unlawfully procured testimony against him. The lawyer concludes by stressing as always that no Limburg material---including this---should be litigated, pending action by the military appeals court, and that her motion to compel witnesses is timely.   Here’s Davis in rebuttal: this is a purely legal issue, he says, which can be resolved immediately.  And the prosecutor is confident that, as a co-conspirator, Al-Darbi’s testimony will be relevant and admissible when we get to trial. Davis lastly underscores that Pollio and company have erred badly in dropping a last-minute request for witnesses.  It’s a crummy practice, he says; Judge Spath, in the prosecutor’s view, ought to take argument on the legal piece only and ignore the belated evidentiary hearing request.  One final word about standing: No, Al-Nashiri does not have standing to challenge evidence derived from involuntary statements allegedly made by Al-Darbi and other third parties; he only has standing to challenge that practice, so far as concerns the involuntary statements Al-Nashiri made himself. (Davis of course acknowledges the Military Commissions Act’s total ban on the admission of statements obtained through or derived from the use of torture and cruel treatment---but he insists this prohibition isn’t implicated by statements that Al-Darbi made voluntarily, long after his enhanced interrogation; or testimony that he might give at a later trial, also on a voluntary basis.)  An accused simply does not have the right to stand in the shoes of another person, whose rights might have been violated. Pollio returns to the podium. First, she blasts the characterization of Al-Darbi as a “co-conspirator,” asking, “co-conspirator to what?” If Al-Darbi is at all implicated in the Limburg piece of the case, then the motion should not go forward at all, as she argued earlier.  Secondly, there’s torture: She’s just as doubtful of Davis’ suggestion that present-day testimony won’t be affected by prior abuse. Judge Spath wonders about this last point. Suppose Al-Darbi testifies that his present statements are voluntary. Will the court have to take testimony from others, who recall Al-Darbi’s 2002 interrogation and torture, and doubt his testimony’s voluntariness at trial?  How can the court reject a witness’s own claim of voluntariness, Spath asks.  Pollio unravels the conundrum by suggesting motive on Al-Darbi’s part---the detainee surely would rather feign “voluntary” testimony,” then face prolonged, even indefinite detention. We’ll therefore need to take evidence as to voluntariness---from the witness himself and elsewhere---in any event.  There’s a bit more along these lines, when Judge Spath asks again: how can I pre-exclude testimony by even a torture victim, assuming that person will testify voluntarily?  Pollio thus argues once more that the “voluntary” nature of that testimony must be highly questionable under the circumstances, and that an evidentiary hearing is critical to fleshing out the residual taint of torture, and the use of coercion by prosecutors against cooperators. The court says we will shortly break for a brief recess, in expectation of later taking up, perhaps, a motion to reconsider brought by the prosecution. That prospect rankles Learned Counsel Rick Kammen, who complains that the prosecution is constantly relitigating old matters through motions to reconsider and interlocutory appeals---while simultaneously attacking the defense for its filing of time-consuming pleadings. The rules apply one-sidedly to the defense, he says. Some brief discussion follows, about witnesses who might testify in connection with the government’s pending motion to pre-admit certain evidence, including hearsay statements.  The defense desires to hear from a witness, an FBI supervisor with managerial responsibility over agents who collected evidence related to the Cole. But the prosecution disputes the witness’s relevance to its motion, observing that the sought person provided no on-the-ground direction to the agents in question. For his part, Judge Spath thinks the issue to be not yet ripe---the government’s pre-admission motion having not yet been taken up formally---and the question is therefore postponed. One more item: AE206. Judge Spath asks about the prosecution’s ongoing review regarding the Senate Intelligence Committee’s torture report and its discovery obligations, the latter being the subject of an emergency defense motion. The Chief Prosecutor, Brig. Gen. Mark Martins, says his side’s review continues apace. But Kammen is concerned: The government’s view of what is exculpatory is so narrow and myopic, that it often overlooks obviously exculpatory material. Moreover, Kammen says, the Senate Intelligence Committee’s Chair is seeking to claw back the report; for that reason, we need that document submitted to the court promptly, so the latter can review the prosecution’s (in Kammen’s view) cramped decisions as to exculpatory material. That way, there will be a record for appellate purposes. The lawyer is keen to get the issue handled swiftly, given possibility that the report might soon be returned to the Senate.  For his part, the Chief Prosecutor says the report remains a Senate document, which his team is reviewing under strict security protocols arranged with the Senate. It would upend the discovery process, Martins says, for Judge Spath to insert himself into the prosecution’s review under these circumstances. (Martins also bats away Kammen’s “myopic” claims as mere characterization.) Al-Nashiri’s lawyer is simply flabbergasted by Martins’ argument: the Senate provided multiple copies to the Department of Defense already, as press reports make clear; there’s no need for a Senate-brokered review. Did the Chief Prosecutor simply choose not to get his own copy?  Kammen urges the court to help protect the case’s integrity and the appellate record---by ordering the executive branch to produce a copy of the report in its totality, under seal, to the court. That doesn’t upend anything, he intones; in fact, Judge Spath, you have the responsibility to make an order of this nature. The Chief Prosecutor rejoins that he could “do without” Kammen’s suggestion of willful evasion of his discovery obligations. And Martins reiterates his side’s opposition to the motion, and his disagreement with Kammen’s characterizations. The Learned Counsel adds a word or two more and winds up---stressing that all he desires here is to ensure that the court, not the defense, is given a sealed copy of the entire report before the Senate grabs it back. The final word goes to Martins, who says that nobody is denigrating the defense counsel’s trustworthiness, by seeking to keep the full report’s access limited to those with a genuine need to know; Kammen, in Martins’ view, simply doesn’t get that. We’re in a short break.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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