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

June 13 Session #2: Rule 703(c)

Wells Bennett
Thursday, June 13, 2013, 12:09 PM

AE114 is next.  It involves RMC 703(c), and commission procedures for the production of witnesses.  Do these violate the Military Commissions Act, and Al-Nashiri’s constitutional and statutory due process rights?  Jackson thinks so.

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AE114 is next.  It involves RMC 703(c), and commission procedures for the production of witnesses.  Do these violate the Military Commissions Act, and Al-Nashiri’s constitutional and statutory due process rights?  Jackson thinks so.

The violation has its roots in a shift in law: in 2006, the MCA called only for a “reasonable opportunity” to obtain witnesses and evidence. But Congress changed tack afterwards, and its intent was to add greater protections for commission accused.  That is reflected now in Rule 703, which was not supposed to mirror court martial procedure, Jackson argues.  How do we know?  Because Congress instead insisted that commission witness procurement procedures would be “comparable,” as it put things, to the same procedures in an Article III court.  Of course “comparable” does not mean “equal.”  But for the defense lawyer, the word can’t mean “contrary,” either.  Thus her invocation of the Federal Rules of Criminal Procedure, and their subpoena-based approach.

From the bench, a query: if Congress wanted me to follow the federal rules, wouldn’t it have said so explicitly?  Well, writ large, yes, responds Jackson.  But this particular statutory language calls for a more federal-ish witness regime.  The court worries aloud about the defense’s sought relief, which appears to grant the defense unilateral subpoena power. It’s not entirely unilateral, protests Jackson---the government can always seek to quash a subpoena.  And our approach also would not give the government prior notice of chosen witnesses, in contrast to the current setup.  Judge Pohl again squints.  When would your opponent move to quash?  When the witness shows up?  After their testimony?  And how could the government know what the witness would say in advance?  In a lengthy back-and-forth, the court wraps its mind around the defense’s proposed approach.

Jackson thinks the defense’s is the only equitable way to proceed.  The rubric shouldn’t be “notice to prosecutors of defense witnesses, no notice to the defense of prosecution witnesses.”  The mention of such unfairness jibes with her due process argument, about which the lawyer elaborates. Now the military judge smells something odd: if RMC 703 violates the Constitution, then doesn’t the similar court martial rule also violate it?  Well, we’re not in a court martial, Jackson parries, and this is a death case---which, again, imposes different and more demanding strictures than usual.  The court is still skeptical, wondering what he’s supposed to do if, indeed, Rule 703 violates Al-Nashiri’s rights.  That would require him to write his own witness rule, and he doesn’t want to.  The lawyer talks around the court-crafted-rule issue for a moment, before Judge Pohl again interrupts.  (Jackson has some further argument---which she says will be brief. We come to it after a 15 minute recess.)

Upon returning, the defense attorney reassures the court.  We don’t want a trial by ambush, your honor.  She then underscores: this court isn’t a court martial, or a federal court.  It is a different kind of court, as reflected in Rule 703’s language.  That carves out a new subset of procedures for commission witnesses.  It is our duty, she says, to put judges and legislators on notice that a more court-martial-like rule---that applied these days in GTMO---is contrary to what Congress intended.  She also dismisses a government claim, that witness procedures here are “comparable” because the MCA elsewhere allows for compulsory process.  “Obtaining” isn’t “compelling,” insists Jackson, and it’s the “obtaining” that must be comparable to federal court under statute and implementing rule.  Again, the court shakes its head: you would have me excuse a witness after their production, if their testimony is deemed irrelevant?  Well, that’s how it works in federal court, says Jackson.  Does anyone have the power to order a civilian to come to GTMO, asks the court.  No, your honor, though you do have compulsory authority in other instances.  Turning to a final point, Jackson addresses prior rulings in the 9/11 case; Judge Pohl stops her quickly, insisting as always that decisions in one case do not prejudice rulings in the other.  Sensing a stopping point, the defense attorney boils it down: we’re asking you to adhere to the statutory standard, by employing a more federal court-like procedure, and by disallowing a prosecution preview of defense witnesses.

Justin Sher, a prosecutor, thinks the accused has every ability to get relevant evidence before this commission, as he would in a court martial or federal court.  Guess what?  That means the process is comparable to the process employed in civilian courts. In both, the judge has the final say about who takes the stand; note, for example, the week’s earlier proceedings on motions to compel.  During them, your honor rejected some defense witnesses but approved some others.  As for prejudice or inequality, there just isn’t any of either: the defense and prosecution both most identify their proposed witnesses in their pleadings.  Then the prosecutor trots through the commission playbook---the defense proposes a witness, the prosecution says “yes” or “no,” and, in the event of a “no,” the defense can take the problem to the military judge.  That was quick.  He sits.

Briefly, Jackson replies, emphasizing narrow differences between the commissions and courts martial.  The former, she observes, has a statutory requirement of learned counsel, for example.  Thus it's improper to compare, as Sher did, this proceeding to a court martial proceeding, at least not without acknowledging some procedural eccentricities---like Rule 703.  The court continues to snag on the notion that witnesses could show up, testify, and then be approved or disapproved.  He goes on: this week, as the prosecutor pointed out, some witnesses requests were blessed, others were denied, and some were deferred.  For Jackson, that regime is just too burdensome---the defense has to figure out backup witnesses, ones who they’ll seek to produce if first-tier witnesses aren’t ultimately endorsed by the government or the judge.  But the logistical problem for you, Judge Pohl sighs, isn’t the issue here.  After a pause, the court notes the defense’s alternative proposed relief----that, if he won't invalidate Rule 703(c), Judge Pohl should require the government to identify its witnesses and supply a synopsis of intended testimony.  That highlights a disparity, for Jackson---the defense gets minimal notice of witness identities on motions, but not any synopsis.

We gather the motion is under advisement, as Judge Pohl moves on---to AE107, the DIVO motion argued earlier in the week.  (By way of reminder, that’s “Defense-Initiated Victim Outreach.”)  The subject is raised by Richard Kammen, Al-Nashiri’s Learned Counsel.  He makes a brief offer of what Professor Madeira, a witness earlier disapproved by prosecutors and the court, would have said, had she testified.  Defense attorneys had asked Madeira to describe to Judge Pohl the work of DIVO liaisons, including (among other things) the impact of the criminal process upon victims.  In her experience, DIVO liaisons reach out in a respectful fashion to victims and their families, Kammen says.  She would further testify to the necessity of DIVO services in capital cases, too.

There follows some housekeeping talk on DIVO matters (like how many DIVO people the defense still seeks), and we break for lunch.   See you at 1300.

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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