Nashiri Motions #14: We'd Like Some More Time to File, and To Have Some More CIPA-esque Fun

Benjamin Wittes, Lawfare Staff
Thursday, April 12, 2012, 1:10 PM
Having lost the reconsideration motion, the defense then marches onward - nominally, to the defense’s next motion, AE42, its request to extend deadlines to submit a defense theory of the case under MCRE 505.  But Kammen is sure to add a comment or three about the reconsideration issue.  The foregoing colloquy, he says, demonstrates flaws in this whole process.  There are two parts to CIPA, says Kammen.  First there is a discovery aspect, that involving summaries.  But then there is a trial aspect, and when the summaries become actual trial evidence.

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Having lost the reconsideration motion, the defense then marches onward - nominally, to the defense’s next motion, AE42, its request to extend deadlines to submit a defense theory of the case under MCRE 505.  But Kammen is sure to add a comment or three about the reconsideration issue.  The foregoing colloquy, he says, demonstrates flaws in this whole process.  There are two parts to CIPA, says Kammen.  First there is a discovery aspect, that involving summaries.  But then there is a trial aspect, and when the summaries become actual trial evidence.  And there, at least in the CIPA context, the defense can seek reconsideration.  Yet under the Government’s reading of commission rules, there is no such possibility for Al-Nashiri - that is, unless the defense can find a new way to submit its views to judge, and the judge can glean how the defense’s new theory alters the court’s substitution procedures. Here is where we are, Kammen continues.  The government has submitted some information to you, but we do not know what is.  The defense is tasked with demonstrating the inadequacies of summaries of classified materials, by showing the judge their theory of case - and, in this case, its theory of mitigation.  Can’t the government just let us know what the information submitted refers to generically?  Do the materials concern Yemen, or Black Sites?  He wants to know more about what the raw documents look like, so that the defense can better craft its theory of the case - which is due to be filed with the court on April 17.  This is the essence of the defense’s other motion, AE35, which Kammen wishes to take up along with the motion for an extension.   Where would that get you, asks the court.  It would help us understand how materials would impact our defense theory, replies Kammen.  This, he argues with visible passion, may be the first time in history when lawyers have been required to respond to documents they have never seen.  The rhetoric surprises Judge Pohl, but Kammen presses on: our obligation is to submit a theory of the case in a complete vacuum, says the lawyer.  The defense has no ability to demonstrate the inadequacy of the substitutions.  How can we know how a document might affect our theory of case, if we haven’t seen it? The apparent effect of this exchange is, from the court’s standpoint, to teleport the parties back to a reconsideration, an issue on which Judge Pohl already ruled.  The Court again: What should I do?  You want me to ignore the statute?  I try to follow the law as it is.  If you ask me to ignore this part of the law, will I then be permitted to ignore some other part?  Your honor, Kammen responds, we are not asking you not to follow the law.  We ask for two things: first, for an order obligating the government to inform us, generically, of what information has been provided - to “get us in ballpark” and to minimize defense guesswork in addressing the adequacy of substitutions.  (He adds that, to the extent the prosecutors disagree, they have waived such disagreement: the government’s briefing refers to generic categories of documents, such as ones dealing with events in Dubai, and medical records produced at Black Sites.) Kammen’s second request is for more time.  In January, he said, we were given 90 days to prepare our submission to this court while reviewing discovery materials.  But there have been some whopper-sized issues with the discovery, according to Kammen.  For one, there was some spillage of classified material into the extensive unclassified tranche.  That meant the defense had to stop its discovery review entirely, until the issue was resolved some two weeks later.  And the volume was big, too: in all, the unclassified and classified record furnished to the defense spans some 70,000 pages.  So, Kammen continues, as a practical matter we have not had enough time to read the documents - and thus have not been able to prepare the submission due on April 17.  He emphasizes that, were the defense to spend 1 minute per page of discovery produced thus far, the review absolutely could not have finished in six weeks.  Personal matters have slowed things down also, Kammen says.  Co-counsel’s wife had a child, and he was thus out on leave. To bolster his point about the sheer magnitude of the discovery, Kammen marks an exhibit to show Judge Pohl - and, as he does, the audio feed of the proceedings is briefly discontinued.  The video keeps on, though, so Lawfare watches a quick and silent lawyers’ debate.  Then the sound resumes, and we hear that Kammen’s exhibit is a screen shot of a disc index provided to the defense by the prosecution.  There’s some more chatter, as Kammen has not yet provided a courtesy to opposing counsel.  Mattivi volunteers to make a copy using the government’s machine. The back-and-forth exposes an opportunity, which Judge Pohl seizes.  Okay, he says, this motion is really about an extension of time.  How much time do you want?  The lawyer’s answer, in short, is “it depends.”  If you grant the defense’s request for translations, Kammen says, we’ll need time to get input from Al-Nashiri; but if you deny our request, we’ll need more time, as the process will be slowed.  The same holds true, he argues, for our request for an investigator: if that is denied, then the process will drag on, and we won’t be able to review discovery as expeditiously, and thus also won’t be able to draft our submission as fast as we’d like.  I am reluctant to pick an arbitrary time period for the extension, says Kammen.  This raises an eyebrow for Judge Pohl, who reminds Kammen that he seems continually to find a reason for not moving the case forward.  I don’t give you x or y, says Judge Pohl, then you say that creates delay.  But if I give you more time to submit your theory to me, that’s slowing this process down too.  The court adds that he disputes the defense’s apparent assumption that it cannot produce a theory of the case document without first reviewing all discovery, classified and unclassified. Now Kammen sees his own opportunity, to emphasize that this whole regime flows from the MCA, which bars the defense from seeking reconsideration of substitution- and summary-related rulings under MCRE 505.  Judge Pohl cuts him off, noting that he gave Kammen and company three months to review discovery and produce a theory of the case; in Libby, Judge Pohl said, the defense got far less than this accused: two weeks to review and to submit.  And what does any of this matter, Judge Pohl asks, if Kammen can submit an amended theory of the case, and then the court can reconsider my substitution decisions on its own initiative?  That arrangement leaves Kammen less than confident.  Kammen says he is a bit hamstrung: he has to find a way to explain to Judge Pohl how difficult it will be for his team to convey, upon further discovery review, that previously approved summaries have suddenly shown themselves to be insufficient in some way or another.  And again, for Kammen, this marks a key difference between the MCRE and CIPA.  The latter’s mechanism allows the defense to raise adequacy concerns prior to trial, when the defense has the most information it ever is going to have.  His client, by contrast, can only raise that matter once - now - even though the lawyers have seen only fraction of the discovery in play.  Again, the question goes to the fairness of this arrangement relative to CIPA; and again, the discussion prompts Judge Pohl to move to practical matters. He asks: what circumstances warrant an extension of the April 17 deadline?  Kammen’s response is to refer to the screen shot he mentioned earlier.  If you look at this, he says, you’ll understand how time-consuming this process is.  In the document, you see that the government has given all the documents the same name, but a different number.  So with each, the defense must open an electronic copy, rename it, and then review it.  Some of the documents are a single page, or a single image.  But others might be as long as 150 pages, and shot through with redactions.  Still other materials might be written in Arabic.  Have a peek at the screen shot, and you’ll see, says Kammen: this is tedious process, and we haven’t had enough time to review what we need to, in order to submit our theory of the case.  The prosecutors want to protect against IAC claim, right?  Well, for Kammen, that should end the matter.  We need the time to review and draft effectively. A furrowing of the brow, and the Court repeats the key question.  How much time do you want?   Kammen says that, if he had no other obligations - and the defense will have many  - the extant material could be digested in 90 days.  But, he emphasizes, in the meantime we’ll have all kinds of motions to file and to respond to, among other things.  Judge Pohl worries aloud about kicking the can down the road again and again.  Will we be re-litigating this a year from now, Mr. Kammen?  Nope, says the defense attorney, who moves from the massive universe of produced materials, to the apparently just as massive universe of materials that may be produced later.  According to Kammen, the government has said in other pleadings that there is an additional 70-80,000 pages of unclassified and classified materials.  So Kammen is still in a pinch, trying to settle on an acceptable time period for his extension.  As an officer of the court, he says, he could review enough materials to respond within 90 days - again, assuming nothing else comes up in the meantime. Kammen’s last point is to anticipate one soon to come from prosecutors: he says that the government surely will claim that the defense has had all kinds of time, and that the defense has expended all kinds of resources.  But what’s really going on here, says Kammen, is that the prosecution wants to lock the court in to some really bad decisions about discovery and classified substitutions.  These are life and death decisions, Kammen says - and the substitution and discovery matters may be the most important ones Judge Pohl will make in this case. Mattivi then gets a word, and he has been itching for one, by the look of it.  He says he really wants to respond to some of Kammen’s factual assertions - that is, before he moves to the legal ones.  (On procedural issues, he defers to Baltes, who he says is more knowledegable.)  The court interrupts: do you object to a 90 day extension?  Mattivi sure does, and for this reason: the defense has had plenty of time, and the delays have all been caused by their own decisions in the case.   That’s true with respect to the substitution process: we have provided classified materials to the court, says Mattivi, but the defense has asked the court to pause in its review of those.  And at the same time, Al-Nashiri’s lawyers say to the prosecutors, we cannot plan for depositions or motions until the defense has seen all discovery in the case.  Mattivi also disputes Kammen’s suggestion that the spillage somehow impeded the defense’s review:  the defense attorneys also had a great deal of other information, like the referral binder, and that could have been digested while the spillage issue was resolved.  So here the defense is today, asking for an extension.  The fact is that the defense would get discovery as fast as possible - and Mattivi agrees that discovery is voluminous in this case - but the defense lawyers keep slowing the process, not the prosecutors. He ends by emphasizing the flexibility in the process.  If you stand by your April 17 deadline, Mattivi says to the Court, then we have established that the defense can amend its theory of the case, and that you can choose to revisit the adequacy of any unclassified summaries.  The way to do this, in everyone’s interest,  is to take what defense will give you by deadline, if they give you anything at all.  Should they fail to meet the deadline, then you can always use your discretion as a judge, and scrutinize and re-scrutinize summaries as the case develops.  That finishes Mattivi’s response.  He tags out for Baltes, the more CIPA-centric lawyer of the pair - and thus the most qualified to address substitution and adequacy issues under the MCRE 505. On those, Baltes says she has three points.  The first is that the defense mischaracterizes its options under rule 505.  The defense lawyers, she says, speak of their “burden” to submit a theory of the case now, so as to aid in the assessment of proposed unclassified summaries.  She finds that astounding.  In the CIPA context, courts have found that the prosecution’s access to ex parte procedures is unfair to the defendant, and accordingly, given federal court defendants their own opportunity to be heard ex parte.  The commission rules codify this practice, in which the defense may give the judge helpful context with which to assess possible summaries.  That is not a burden, or an obligation, but an option - and indeed a helpful one, in her opinion. On to issue two.  CIPA, Baltes says, does not have any provision that permits reconsideration; her suggestion is that Kammen simply has the law wrong.  There is only one case - that of Scooter Libby - in which the court decided that the defendant could seek reconsideration on inadequacy grounds.  But, Baltes says, the facts of Libby’s case are quite unique: there, the defendant had a security clearance and previously had access to the documents that were eventually filtered during the CIPA process.  In a subsequent decision in Libby’s case, the same court that permitted the reconsideration noted that Libby likely would complain about the ex parte features of CIPA - but noted that this process helps to put the defendant in a better position.  That is precisely where Al-Nashiri finds himself today, Baltes says.  If he suspects a discovery violation, he always can file a motion to compel. The lawyer’s third and final argument is that it is impractical and unnecessary for the defense to go into government’s files, as Kammen has suggested.  That is the reason, according to Baltes, why courts place the burden on the government to turn over discovery to which the accused is entitled.  It also the reason why the Supreme Court has never found a due process violation, when prosecutors have denied defendants full access to the prosecutors’ files during the pre-trial period. The court, who has been silent awhile, adds a clarifying point: he asks Kammen, who wishes to speak, if he should deal further with AE35, the motion which seeks the disclosure of categories of information that the government has furnished to the judge.  For Kammen, the resolution of that motion, like many of the morning’s motions, depends on how Judge Pohl’s future rulings.  If you deny our request for an extension, then you must also deny our request for the disclosure of categories - because the defense obviously will not have sufficient time to review the categories.  But if you grant us an extension to submit our theory of the case, then you should direct the other side to give us categories of information, so that the defense might focus its submission to the court. The foregoing distracts counsel only for a moment.  He swiftly turns to his tart rebuttal of the prosecution’s claims.  As learned counsel, Kammen says, I am only person in this courtroom who has defended a capital case.  And in that capacity I provide knowledge, and an understanding of the resources required to mobilize them.  In the pre-trial phase, that is all about marshaling resources for discovery.  So, though it is true that I have been to Yemen, and long worked on this case, at no time have I had the discovery I’ve needed.  Another correction from Kammen: Mattivi said the defense has had 4 months to review the discovery supplied this far.  Not true, he says.  It actually has been 6 weeks.  Then there’s the prosecutor’s claim that we could have reviewed discovery while spillage problems were addressed.  That is true, but we’ve moved for the government to produce unredacted copies of classified information, which they have not done. An inquiry from the court: how much did the two-week spillage problem impact your work?  Kammen defers to Reyes, but understands that a goodly amount of secrets had been found embedded in allegedly unclassified material.  Enter Reyes, who explains that some 80% of the discovery was unclassified.  With respect to that material, the spillage’s effect was total: we had to stop reviewing it altogether.  There of course was no such impediment regarding the unclassified documents, but these comprise a measly 20%. Judge Pohl is getting to his decision, at least by the look of things.  He visibly disagrees with any defense’s claimed need to review all discovery first, and then to submit its theory of the case afterwards.  That prompts a question, not to Kammen but to Mattivi.  Counsel, have you given all unclassified discovery to the accused - that is, all to which he is entitled?  Mattivi does not answer, but defers to Commander Andrea Lockhart, an Assistant Trial Counsel for the prosecution team.  She explains that the government has provided a great deal of unclassified information, but that there’s more in the pipeline.  The government of course understands its continuing obligation to provide discovery, she says. Kammen rises again to dispute, or at least to cast a skeptical eye towards, Lockhart’s assertions.  He can guarantee that, based on his review, the government has not turned over the entire FBI file.  But in that event, Judge Pohl pops in to remind Kammen, the defense can file a motion to compel. With this Kammen comes full-circle, and returns to what has become his theme for the morning: the discovery and classified information management rules here are both onerous and unprecedented.  We are being asked to draft a terribly significant document, says Kammen, without seeing any of the most important information.  With this, Judge Pohl returns to another now quite recognizable theme: if the defense determines, after further discovery review, that summaries of classified materials may be inadequate, then it may file an amended case theory document, and Judge Pohl may reconsider the summaries on his own initiative.  How does this penalize the defense, asks the judge.  Kammen again says that the summaries become evidence at trial, and that he cannot show the summaries’ inadequacy now, without time to review a mountain of paper that is yet to come.  That reminds Kammen to dispute Baltes on one point: for the record, there are far more CIPA cases than just Libby, in which the courts have discussed the defendant’s ability to seek reconsideration of a substitution decision.  Those are cited in Kammen’s brief. Judge Pohl again takes an interest in the prejudice to the defense.  He asks Reyes once more if the two-week delay in fact precluded the lawyers from reviewing materials not affected by the spillage of classified material into unclassified discovery.   Reyes gives the same answer: we could review other discovery, but the impediment was significant, in that we could not look at the most relevant and extensive unclassified discovery - which had compromised by the spillage.  This has made it harder to meet the court’s April 17 deadline. Mattivi wants a final word, but Judge Pohl stops him.  Another proffer of evidence won’t help, the court explains.  He wants only to deal with legal matters.  Fine, says Mattivi, who again emphasizes that the defense has always had the referral binder, and been able to review that at all times - even during the shutdown. There’s a pause, and Judge Pohl starts on what appears to be his ruling.  The motion, he begins, was to extend the deadline for the defense to provide a theory of the case, so as to aid the court in reviewing proposed substitutions.  The original deadline was April 17, and was firm absent a showing of extraordinary circumstances.  I reject the defense’s position that all discovery must be completed before submission of the theory document.  This, he says, is an effort to give information to the accused, and the accused complicates that by insisting on full discovery beforehand.  With that said, he gives the defense the benefit of the doubt on the effect of the review hiatus occasioned by the spillage. The court therefore grants the motion for extension in part: the new deadline to submit a theory of the case is now 1 May; any further requests are denied, as is  AE35, the request for disclosures of categories.  Any questions?  There are none.  The court lastly wants to know about how the parties will handle substitutions in light of the ongoing question of Paradis’ representation.   Judge Pohl asks how long it would take Kammen and crew to produce a written document about that.  Kammen says 4-6 weeks, and that quickly inclines Judge Pohl to the smaller number.  The deadline is set for 4 weeks later, or 14 May.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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