Last Week at the Military Commissions: Discovery Disputes and a Medical Recess in al-Iraqi

The military commission trying alleged al-Qaeda commander Abd al-Hadi al-Iraqi reconvened on March 6, after a nearly two-month hiatus. This one-day session recapped party conferences since the last session and the defense counsel’s allegations that the government was inhibiting the discovery process. The commission adjourned less than two hours into arguments after Hadi’s medical condition worsened.

Review of RMC 802 Conferences

Military judge Lt. Col. Michael Libretto recounted three Rule for Military Commissions (RMC) 802 conferences he had held with the parties since the last session. The first occurred on January 14, at the end of the previous session, which was cut short on account of Hadi’s medical condition. Because the parties were unable to get through oral arguments on all of the pending motions, the commission directed them to file supplemental briefing in lieu of oral arguments. The commission also took account of defense attorney Susie Hensler’s pregnancy, agreeing to convene the first week of March and cancelling the April and May 2019 sessions. The commission modified the July session and extended the August session accordingly.

Next, Libretto discussed the second conference, held on March 4. The government had noted that the accommodations for Hadi described in classified Appellate Exhibit (AE) 131V were in place, and the defense requested an opportunity to view these accommodations and raise an issue on the record. The commission directed the defense and government counsel to coordinate an opportunity for viewing the accommodations.

Libretto then described the third conference, which occurred on March 6. The parties had discussed the measures that the government potentially would request for protecting classified information. The military judge also told the parties that the commission would take up matters in numerical order, in part because the defense had requested more time on AE 135 and AE 141. Hensler raised concerns about Hadi’s health due to his delay in arriving at the Expeditionary Legal Center and the delay in her meeting with him in the morning. She stated that his medications seem to be clouding his mental functions, although she was able to have a conversation with him about the day’s planned proceedings. She requested that the military judge have a brief discussion with Hadi in order to ascertain whether the day’s hearing should continue or be postponed.

Libretto requested that the parties add or correct any items to this summary of the RMC 802 conferences. Hensler noted that the court had compelled former counsel Adam Thurschwell to appear, as the court had not yet ruled on his excusal. She also said that Hadi had been prescribed and consumed Valium, Flexeril and Percocet, but was nonetheless currently in pain after being restrained in a van outside of the courtroom for 35 minutes.

Judge Advisement to Hadi

Before continuing the session, Libretto reminded Hadi that he had a right to be present in all sessions but may request to be absent. He reminded him that, on recommendation from Hadi’s doctors, Hadi was allowed to stand up and stretch to minimize the risk of back spasms and pain. Libretto stressed that it was his sincere goal for Hadi to be present in all proceedings, and if Hadi failed to stretch and then suffered back spasms, Libretto would consider the circumstances in determining if Hadi’s absence was indeed voluntary.

Libretto then questioned Hadi on his mental state. Hadi said that he felt drowsy from the medication and could follow simple conversations but would not be able to understand the proceedings if they got too complicated. Libretto emphasized that Hadi may speak with his counsel about any matters that he does not understand.

Hensler then raised an objection to moving forward that morning in light of Hadi’s condition. Libretto noted it for the record.

Planned Motions

For this hearing, Libretto referenced AE 143 and AE 143N, the original and admitted docketing orders, which listed 13 motions and appellate exhibits the court would be addressing for the week.

On February 22, the defense had submitted a motion requesting a Military Commission Rule of Evidence (MCRE) 505(h) hearing. The government had argued that nearly all of the defense’s docketed motions either directly or indirectly involved classified information. The commission granted each party’s request for a MCRE 505(h) hearing in AE 143N.

Libretto said that if either party believed that it needed classified information to allow the commission to fully understand its argument, the party was to inform the commission at the close of its argument.

Arguments over Discovery Responsibilities

Libretto then addressed AE 079, a January 2017 defense motion to compel production of the defense’s Sixteenth Supplemental Discovery Request (DR-16). The government argued in AE 079A that it had already produced all discoverable information either directly to the defense or to the military judge. The commission originally heard arguments in April 2017 but deferred a final ruling while discovery was ongoing.

For the defense, Lt. Dahoud Askar said that the commission’s ruling in AE 079D noted that the al-Qaeda command structure, terrorist training camps and guesthouse, and the structure of the al-Qaeda Senior Advisory Council were discoverable material. He said the government had yet to provide a written response to DR-16 in AE 079F. The government stated in AE 079G that, after review, some of the requested information was discoverable while some was not. Askar argued that this lack of specificity made the inquiry more difficult for AE 079, AE 080 and AE 140. He accused the government of refusing to acknowledge to the commission and the defense what information was in its possession and what it believed was not discoverable.

Libretto told Askar to specify what he wanted the commission to turn over, and Askar said the defense requested all memoranda, correspondence, cables, emails, photos, charts, sketches or drawings in the possession of the Office of the Chief Prosecutor, Office of the Convening Authority, Central Intelligence Agency, Federal Bureau of Investigation, Department of Justice, and Department of Defense or any other government agency that depict the al-Qaeda command structure. These documents were to include how to join al-Qaeda, the advancement within al-Qaeda, taking command within al-Qaeda or being chosen as an emir within al-Qaeda.

Askar said the government had referenced the classified information procedures and related statements as sufficient to meet the defense counsel’s request. He argued that the government failed to satisfy the discovery request by simply responding that it had provided over 100,000 pages of discovery and that the information the defense wanted was “in there somewhere.” Upon questioning from Libretto, Askar said that items the defense received in response to its AE 079 discovery request implied that other, withheld evidence also exists. Askar added that he had not yet alerted the commission of this issue and was concerned about doing so in an open session.

Government counsel Cmdr. Kevin Flynn responded that, first, there was no requirement for the government to pinpoint favorable information in discovery that had been turned over to the defense counsel; it was the defense’s obligation to analyze the materials. Second, he noted that some requested information had been deemed discoverable and then turned over to the defense. He said that it was up to the defense to “basically do their job” and go through the discovery material.

Flynn then referenced one instance where the government did pinpoint information on Hadi’s membership on certain councils for the defense. Flynn added that Hadi’s own statements and those of other individuals indicated Hadi was on al-Qaeda councils.

Libretto asked Flynn if there was at least a responsibility for the government to identify what evidence is responsive to each of the requests, if for no other reason than to facilitate the discovery process and avoid ambiguity in litigation. Flynn responded that the government had turned over 182 batches of production, most, if not all, of which contained a spreadsheet of what the government was turning over. He added that the government had complied with its discovery obligations and the great majority of the evidence that was discoverable went to the defense in December 2017.

In response, Libretto asked how the commission could litigate an issue when the status of the discovery process is a mountain of various discovery dumps in response to the defense’s DR-16 and then a government argument that the items the government had reviewed were “nondiscoverable.” Flynn said that the prosecution has a duty to go through all of the hundreds of thousands of pages and make a discovery call. He said that most of the discovery requests track the charge sheet. The defense needs to let the prosecution team know if it thinks something is missing, not make a statement in the pleading that the government has not turned over any of the information requested.

Flynn asked to make one more point to the commission: The defense filed its initial request for discovery in June 2013, and the government had turned over 105,000 pages, 182 productions and 4.5 terabytes of information. The last major production to the defense, excluding Jencks Act materials, was in December 2017. Flynn said that the government believes it has completed all affirmative pretrial discovery and fulfilled its responsibilities. He added that when he joined the prosecution in 2014, he was a discovery attorney and nearly all of the prosecution team focused on the discovery process. Now, however, as the commission nears a trial posture, the prosecution is preparing for trial on the merits. He affirmed that the government will continue to turn over discoverable information and understands its obligations with respect to RMC 701(b)(2), Giglio and Jencks.

Askar responded to the government’s claims, specifically regarding item 10.k of the discovery request. He said that the only item mentioned in the government’s response and in AE 079G was a set of statements by Hadi and another person about council membership. He said such statements will be subject to further litigation to assess their veracity and their surrounding circumstances. Askar said that the defense believes the government possesses information that is far more expansive than that contained in the government’s response.

Libretto noted that the defense did not identify in the original discovery request, the supplement or the motion the specific documents or the reason that it believes such documents exist. Askar responded that if the government’s decision to charge Hadi with all of the allegations rested solely on the provided statements, the government needs to say so. Otherwise, there is reason to believe that additional information exists and is discoverable.

Defense’s Request for Contextual Information

After a 30-minute recess, the commission reconvened to address AE 080, the defense’s motion to compel discovery pursuant to the defense’s Seventeenth Supplemental Discovery Request. Similar to AE 079, the commission had originally deferred until after the classified information screening process was complete and had ordered the parties to clarify their positions on the status of the motion.

For the defense, Lt. Charles Ball directed the commission to AE 080F, Attachment B, which was the government’s response in May 2017 to the initial request. The defense had requested all memoranda, correspondence, cables and emails in reference to the Shkin meeting letter, a two-page letter that identifies Hadi as a participant in meetings of senior al Qaeda and Taliban leadership. The letter had Hadi’s name on it, but the defense had no context as to its source, so the purpose of the discovery request was to ask for additional information surrounding the letter. The government had replied that the request was not relevant, while also specifying materials with their coded Bates numbers. Referenced materials included a Criminal Investigation Task Force report, a report by a chief warrant officer and photographs of evidence tags. There were no memoranda or correspondence, however. Libretto acknowledged the contradictory nature of the government’s response and asked whether the defense had any basis to believe additional evidence exists.

Ball said that the chief warrant officer’s report refers to black, white and gray lists, but the defense lacks information on what these lists concern. Libretto then asked if the defense had requested that information, to which Ball replied it had not. Libretto said that when the defense asks “for the world” without a supplemental request specifically identifying the materials the defense believes it has not received, the defense is basically requesting the commission to facilitate discovery that should be directed toward the government.

Ball agreed with Libretto’s assessment, while noting that the defense did submit 72 specific requests within the discovery request. Broadly speaking, the defense knows Hadi’s name is on the list, and the government has identified him as a member of al-Qaeda through the Shkin meeting letter. The defense, however is asking for the related reports. The defense knows that the CIA created task forces to investigate Osama bin Laden after 9/11. Such task forces would have produced some type of work product, such as documents that include a command structure. Yet all the defense has is Hadi’s name on a list. Ball said that the defense has identified categories of information on which it needs clarification. If the information does not exist or has been destroyed, then the defense needs to know.

In response, Maj. Johnathan Rudy said that AE 080I noted that there was nothing left to produce. The government had produced everything in its possession related to the discovery and provided it to the defense. He asserted that this held true for information surrounding the Shkin meeting letter.

Libretto again noted the internal inconsistency in the government’s response that defense’s request was denied “as not relevant, material, and helpful to the preparation of the defense” but that the government had already turned over several items of discovery. Rudy said the quoted preamble statement was in response to the request generally, while the list of Bates numbers was what might be responsive to the defense’s request.

Next, Libretto postulated that the government seemed to deny many defense requests because they were requests for witness information, not for discovery. Rudy replied that the defense needs to put in a witness request if it wants access to particular witnesses.

Libretto said he understands that the defense seeks witnesses who link Hadi to al-Qaeda and are thus partially responsible for Hadi being charged. Rudy confirmed that a document will be used to link Hadi to al-Qaeda, and the witnesses are merely foundational as to how the government came into possession of the document.

Libretto then asked Ball if the defense was able to locate certain materials the government had said were responsive to the defense’s request. Ball said that the defense has a system to search the files that have been discovered, and one of the Bates numbers provided by the government rendered a missing file. The government said that it had previously provided the file to the defense and would do so again.

Unscheduled Medical Recess

The commission then moved to AE 120, the government motion to compel production of discovery pursuant to RMC 701(g). At this point, Askar told Libretto that Hadi was having trouble focusing and was in a great deal of pain. Askar said Hadi was slow to respond and not fully following Askar’s questions in both English and Arabic. Libretto put the commission into a recess and eventually canceled the remainder of the March session.

Proceedings are scheduled to resume in July.