In my From Tragedy to Farce—Redux post, I described how then-military commission Judge Pohl (Col. Vance Spath now presides; see my post: Pohl Replaces Self as Nashiri Trial Judge) had ordered the prosecution to produce a lengthy list of documents and categories of information regarding the CIA’s interrogation and torture of Nashiri at various secret black sites over a four-year period. One insider characterized the order to the Miami Herald’s Carol Rosenberg thusly: “It’s a nuclear bomb that may shut down the case,” because it required production of so many of the agency’s closely guarded secrets. The possibility that the CIA simply might refuse to comply was widely considered.
But not so fast. The government sought reconsideration from Pohl, which he granted while relaxing his original order in various respects. In crucial sections he reminded prosecution lawyers of something they (and at least that one excitable insider, it seems) evidently had overlooked: that a commission evidence rule granted to the government the broad ability to provide content summaries in lieu of actual documents. See June 24, 2014 Order AE 120AA in Nashiri case docket (http://www.mc.mil/CASES.aspx). The faithfulness of earlier CIA summaries to the truth, you may recall, had been challenged by Kammen: back in June, 2013, while in full cry, he argued to Judge Pohl: “The CIA certainly has a history of misleading prosecutors…(and it has) a history of misleading judges…and I think that pattern is continuing…. [W]hat we have now…is a series of summaries that…we will demonstrate are false…. [T]he summaries are false, they are misleading, they are woefully inadequate for any meaningful presentation in a capital trial.”
Another obstacle for Kammen lurked in a Catch-22 arising from that ability of the government to substitute summaries for the underlying documents. The military judge has authority to decide upon the adequacy of summaries, but once he has done that in specific instances he is prohibited by commission law from reconsidering his decision, even if facts coming to light later contradict the approved summaries. (Kammen on August 4, 2014 pronounced the summaries produced by then in response to Pohl’s CIA-related orders as “virtually useless.”)
Pohl had devised a workaround for this quirk in the military commission rules by allowing the defense to seek more discovery (production of documents and other information) from the government on the subject matter of approved summaries questioned by the defense. That, according to Kammen, was the genesis of the defense motion to compel the government to produce the information and documents on the CIA’s treatment of Nashiri. Such further discovery would enable the defense to argue in court about any inconsistency between approved summaries and this newly produced information. But without any deadline for the government to provide that new discovery in what lead prosecutor Gen. Mark Martins describes as an “iterative, back-and-forth process” (which to Kammen “implies a slow trickle of discovery, right up to the eve of trial), the defense attorney predicted disaster. Given the defense’s scarce resources, Kammen asked how the defense could comply with the court’s timetable for the case in light of this drawn-out process. (See http://www.lawfareblog.com/2014/08/84-session-5-things-120-part-two/ — Aug. 4, 2014 transcript of proceedings, pgs. 4778-4787.) And, of course, much of the new discovery doubtless will be provided in summary form, leading a body to wonder whether a devil’s circle has been created. If additional discovery is required to show the inaccuracy of those new summaries, and the CIA again produces only more summaries that may not be accurate and sufficiently detailed according to the defense, where and when does that circle end?
All this may seem to add up to a story only a lawyer could love. But what the CIA inflicted on Nashiri is vital to his case and his fate, both to enable the defense to challenge the admissibility of statements Nashiri made while a captive, and to mitigate his sentence (recall that death is one possibility) if he is convicted.
Back in August 2014, Kammen continued to push for production of the underlying documents, even though commission law stands in his way. But completely outside the existing rules, I wonder about a judicial system in which the defense team, each member of which has Top Secret clearance at least and is bound by both a court order and, potentially, criminal law not to disclose classified information, may not be allowed to see those documents. And why they should not have the complete, unredacted 6,000 page-plus report on the CIA’s interrogation, detention and torture of captives by the CIA’s Senate Select Committee on Intelligence? Kammen and others suggest a reason: the documents and report would reveal cruelties far more terrible than we know. Not simply water-boarding, mock executions and Enhanced Interrogation Techniques (all of which were inflicted on Nashiri, the first two while he was naked and blindfolded), but far worse torture techniques.
I’ll continue to provide updates on this crucial battle.