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

June 11 Session #7: "It's All Hearsay"

Wells Bennett
Tuesday, June 11, 2013, 2:39 PM
In AE109, Al-Nashiri’s lawyers ask Judge Pohl to take judicial notice that the Sixth Amendment’s Confrontation Clause applies to military commissions. As a general matter, says Kammen, the rule is that hearsay cannot be admitted in an everyday criminal case.  But the rule here isn’t so clear, and we need clarity badly.  If your honor rules that the MCA trumps the Sixth Amendment, then so be it.

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In AE109, Al-Nashiri’s lawyers ask Judge Pohl to take judicial notice that the Sixth Amendment’s Confrontation Clause applies to military commissions. As a general matter, says Kammen, the rule is that hearsay cannot be admitted in an everyday criminal case.  But the rule here isn’t so clear, and we need clarity badly.  If your honor rules that the MCA trumps the Sixth Amendment, then so be it.  But if the Confrontation right obtains, then we think a capital case like this would require heightened standards of reliability---though we’d have to figure out the exact contours of the right as applied here.  Kammen cites Boumediene as authority for the Constitution’s broad application to Guantanamo.  Whoa, says the court: does the ruling’s language really concern provisions beyond the Suspension Clause?  It does, answers Kammen.  And the defense lawyer also has Hamdan II in mind, too, along with its Ex Post Facto analysis.  Wait, says the court, that case was of course decided in light of Ex Post Facto principles, but not on the constitutional clause as applied at Guantanamo.

Kammen worries about prosecution’s evidence, which seemingly will be stuffed with unreliable double- and triple-hearsay----witnesses reading FBI reports made ages ago about other people in Yemen, for instance.  Or take the statements by alleged Al-Nashiri co-conspirator Fahd al-Quso.  The latter's publicly reported killing by the United States obviously takes him off the would-be witness list, for prosecution and defense alike.  So is he now “unavailable,” for confrontation and hearsay purposes?  And more starkly, can the United States really procure a witness’s unavailability--with a hellfire missile---and then seek to admit his past statements under military commission rules?  It is chilling stuff, and cries out for resolution of the Confrontation Clause question.  Kammen’s side will have some investigating to do, if the defense does not prevail on AE109.  Kammen emphasizes the narrowness of his motion.  All we want is for you to take notice that the Confrontation Clause of the Sixth Amendment applies here, as interpreted by the courts.  A skeptical Judge Pohl wonders what that move would mean for other rights---speedy trial, grand jury, and so on.  Kammen thinks the full panoply of rights ought to be in play, though he notes, for example, certain limitations on the grand jury clause.  Really, he says, the keys are----we begin to sense AE109's theme---reliability, predictability, and allocation of resources.  If we don’t need to investigate Al-Quso, in light of his killing by the United States, then our path forward is clear.  Ditto reliability, if Judge Pohl rules that, yes, the Clause applies in Al-Nashiri’s case.  The court interjects, pointing out that under the MCA 2009, prosecutors must provide notice to Kammen and crew about the use of hearsay.  Still, such use runs fundamentally counter to the Confrontation Clause, according to Kammen.  Again, the dreaded FBI reports and similar documents are often two or three layers of remove from the witnesses in question, who won't be open to questioning by defense lawyers.

The baton passes to the Chief Prosecutor, Brigadier General Mark Martins.  In the guise of using a rule of evidence---judicial notice---the defense would have the court issue an advisory opinion.  But that’s wrong, he argues, such notice being reserved for only the most uncontroversial things, like the passage of legislation on such and such a day.  Judge Pohl buys this apparently.  Like Martins, he also finds the notice idea strange, given the obvious defense intent to exclude Clause-violating evidence.  And to the extent this really is a motion to exclude, Martins goes on, it is not yet ripe.  Consider Boumediene, which did not reach the larger constitutional question.  Its statutory predecessor, Rasul, didn’t either.  Instead, Boumediene talked only about the Suspension Clause, as applied to a particular set of facts.  You’ll find no such facts in Kammen’s motion.  No facts, no real dispute, no controversy to decide about the Sixth Amendment’s impact.

Judge Pohl mentions 949a(b)(3)(D), the MCA 2009 provision dealing with prior notice and the use of hearsay.  The approach to litigating under it is notice, followed by any opposition by the defense, no?  Martins generally agrees, though he also cites the MCA’s implementation of a statutory confrontation right (itself codified at 949a(b)(2)(A).  Hold on, says Judge Pohl----isn’t the latter about witnesses who do show up?  It might not deal with hearsay declarants, about whom the court wants to know more.  Getting to his key issue another way, the court asks: would the MCA 2009 provisions satisfy the Confrontation Clause, whatever its hypothetical application here?   Martins answers by reference to courts martial, in which judges generally rely on statutory provisions first, rather than their constitutional counterparts.  Still, when pressed, the Chief Prosecutor reserves the equivalence---or not---of the Clause and the relevant provision of the MCA 2009 for specific disputes.  He’s careful, though, to acknowledge that all governmental power must be rooted in the Constitution.  A few words more then he sums up: this motion is just not ripe.

At bottom, Al-Nashiri’s lawyer wants to save needless time and energy.  Lots and lots of both, in fact.  One of the reasons federal court litigation moves so smoothly, Kammen says, is that everybody knows what the rules are.  This figure-out-as-we-go approach wouldn’t be permitted in a civilian setting, and Kammen heard Martins concede that it wouldn’t fly in a court martial, either.  Kammen also isn’t looking for some broad-brush opinion---again, he says, our motion calls for a narrow ruling about the Sixth Amendment’s Confrontation Clause only.  That way, we can know what the rules are, in advance, for when we call our own witnesses and prepare to challenge the prosecution's.  The court gestures towards the need for specific facts: you seem to be asking me to make a blanket ruling, in the absence of anything concrete.  He’s not quite sure about the judicial notice notion at any rate, but how can he decide about the Clause’s application in the abstract?  This takes Kammen back to his uncertainty point.  What if the defense wants to call Mr. Jones---who might be unavailable or dead?  If the latter, then he doesn’t get to testify, assuming he’s been murdered by the United States, right? (Kammen’s characterization draws a prompt objection from the prosecution, which the court notes.)   The court squints at the defense’s suggestion of vagueness or uncertainty in the rules.  On the contrary, Judge Pohl interjects, there are tons of rules in use here, ones codified at length and in detail, in places like the MCA and the MCRE.  Yours, Mr. Kammen, is a complaint about what those rules actually say.  All things being equal, Judge Pohl seems to think that any constitutional issues relating to the MCA’s hearsay and confrontation provisions have to be litigated one witness at a time, and one hearsay exception at a time.

Some more urging from the lawyer---who again mentions the need for reliability, predictability, and sensible allocation of resources---and Kammen finishes up.  We need guidance here, your honor, on all three fronts, and a Confrontation Clause will provide such guidance.  Again, the issue comes down to unavailability: federal prosecutors are very good at getting witnesses to appear in person or by video.  But when that doesn’t happen, prosecutors must accept the consequences.  As to whether these prosecutors must do the same, why should we wait to resolve that issue?

Judge Pohl turns to Martins.  Under the notice provisions, asks the court, when would you envision the government giving notice to the defense of witnesses it plans to call, or hearsay it plans to use?  The question excites Martins, who says he would love to discuss AE45, which calls for setting of a trial schedule.  And as to notice, Martins promises that it will be “ample,” and that he expects to litigate notice matters.  In closing, he says, it certainly isn’t the prosecution that seeks to ignore the Sixth Amendment's Confrontation Clause.  It is instead the defense that seeks to ignore Congress’s Article I powers, and furthermore invites the court to rule on the basis of a fact-free, facial challenge to MCA hearsay and confrontation rules.

A quick word from Kammen, who reiterates the sheer volume of hearsay implicated by the prosecution’s case.  “It’s all hearsay,” he exclaims.    Investigating the reliability of the statements embedded in FBI reports and related materials will burden the defense a great deal.  Don’t make us do that, Kammen seems to say.  Instead, make this case’s procedures as reliable and predictable as those of any other American criminal court.

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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