UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT. [The Military Commission was called to order at 1457, MJ [COL POHL]: Commission is called to order.

Transcription

1 0 0 [The Military Commission was called to order at, January 0.] MJ [COL POHL]: Commission is called to order. All parties are again present who were present when the Commission recessed. To put on the record, the reason for the delayed start is I had an 0 of all counsel to discuss trial schedule. In my experience there is a lot discussed at such 0s that don't get to the point, so when I get to that issue I will summarize what was said as the agreed-upon trial schedule. Back to AE for a second. Commander Reyes, I think there is just one question for you. DC [LCDR REYES]: Sure. MJ [COL POHL]: Assuming that I'm not going to give you two years to file a submission, instead I plan to give you approximately no more than one month, do you wish me to delay my 0 reviews until your submission or not? DC [LCDR REYES]: Yes, Your Honor. MJ [COL POHL]: I want something understood, is that this submission deals with these 0 reviews. If there is additional 0 reviews, as I think there very well might be, you will have an opportunity for additional supplemental submission for those 0s. That being said, do you wish me to

2 0 0 delay the review for no more than one month for you to provide a submission? DC [LCDR REYES]: It is just we haven't figured out where we are. Are we on the assumption that there is a bar for reconsideration, or eventually later on ---- MJ [COL POHL]: Let me back up, and I will tell you what my ruling is going to be. Then I will give you an opportunity to respond. During the lunch recess I went back and looked at both the statute and the regulation. Also in my view, understand the government's perspective of 0 material is not released piecemeal; it is released in toto. And if a judge wants to amend a particular summary, that goes back to the government, who then has various options. Okay. When the process is done, okay, then the government knows what is to be released and makes its ultimate decision what they want to do with it, because they have various options. Once that process is done and the material is released to the defense, to come back and revisit the summaries that have already been released, and, for example, the judge then says, "Summary A is not good enough. I want you to make it Summary A-," if that summary is something the government would never want to release to begin with, now the judge has taken away their authority under the statute because

3 0 0 now it is not in toto; now it is being piecemealed. Consequently the way the rule reads, looking at what the statute says, the procedure is 0 reviews, after they are completed and the government has their option what to do with any changes made by the judge, there will be an order, protective order, which also discusses adequacy of the summary, and just the way the statute reads, that decision will not be reconsidered. DC [LCDR REYES]: So, Your Honor, if defense comes back and says that substitution is not adequate, and here is why we think it is not adequate, the Commission still has the authority. MJ [COL POHL]: The Congress has said in the M.C.A. of 00 that there is no reconsideration. Earlier I was looking at the regulation. I'm looking at what the statute says. DC [LCDR REYES]: Correct, Your Honor. MJ [COL POHL]: Would you not want me to follow the plain reading of the statute? DC [LCDR REYES]: The problem is that you are being required under the statute and under the regulation -- the standard is the same, you are being required to essentially make the assessment would these substitutions provide the accused substantially the same ability to make a defense

4 0 0 without a proper input from defense counsel. What we are asking for is the ability to first look at all the discovery here, which is right now 0,000 pages, conduct a mitigation investigation case, because it is a capital case; and then be able to intelligently tell and assist the Commission on this actual test, which is will it provide the accused with substantially the same ability to provide a defense. We can't in any way, shape or form, Your Honor, do that in one month. Just going to get the discovery in the next day or two, we have to review at least 0,000 pages of discovery, conduct mitigation investigation, conduct our own investigation, which includes traveling to Yemen, includes discussion with experts, resources. What we have to do is essentially demonstrate which is -- that substitutions will provide the accused with substantially the same ability as would with the entire classified information. That can't be done in a month, Your Honor. And ---- MJ [COL POHL]: What is your source of that right of the accused? DC [LCDR REYES]: Sorry, Your Honor? MJ [COL POHL]: What is your source of the right of the accused about the adequacy of the substitution?

5 0 0 DC [LCDR REYES]: I think if you actually look at the standard ---- MJ [COL POHL]: Where is that? Where are you reading from? DC [LCDR REYES]: 0(f) -- excuse me, Your Honor, 0(f) on page - subparagraph -- right above paragraph, subparagraph Charlie, which actually talks about what you are determining when you determine the adequacy. And if you look at the actual statute -- if you actually look at the statute it is b() -- Bravo -- Bravo () says, "Military Judge shall grant the request of trial counsel to substitute a summary if the Military Judge finds that the summary statement or other relief would provide the accused with substantially the same ability to make a defense as would discovery over access to specifically classified information." That is the statute and it is identical in the rule. MJ [COL POHL]: The next paragraph of the statute you read as your authority is the reconsideration? DC [LCDR REYES]: Correct, Your Honor. That is why before you make ---- MJ [COL POHL]: Therefore, I cannot reconsider. DC [LCDR REYES]: Correct, Your Honor. That is why before you make that decision that the substitutions are

6 0 0 adequate that it is imperative that you receive this input from defense counsel. It is imperative that you receive what defense counsel believes is important in order for ---- MJ [COL POHL]: When does it end? When does it end? DC [LCDR REYES]: Your Honor, towards the trial date -- a few months before the trial date -- that is dependent upon what the Commission wants to do -- when we have actually had the time to conduct an adequate investigation, actually had the time to review discovery, that is all we are asking for, at that particular time -- which isn't a month from now, Your Honor, ostensibly could be a year from now, could be ten months from now -- it is hard to say, but a month from now to review 0,000 pages of discovery, get that translated so we can give it to Mr. Nashiri so he can review, conduct the mitigation investigation case, we don't think that is enough time. In order for you to make a proper assessment under the criteria, we believe that you must have defense counsel input. I think we cited a couple of cases in -- in our brief, particularly the Supreme Court case. We talked about really the person who should be advocating what it is in the best interest or necessary for the defense's case is counsel because they are familiar with the facts. Especially in this particular case we have a learned counsel who is familiar with

7 0 0 capital cases. Congress has specifically said that in all capital cases you have a learned counsel, and that learned counsel will be able to adequately express to the Commission what he believes after doing his investigation, reviewing the evidence will provide an adequate defense, Your Honor. MJ [COL POHL]: I got you. So what you are saying is you want to wait, so I understand your position, realistically months, two years, before I complete the 0 reviews? DC [LCDR REYES]: All we are asking ---- MJ [COL POHL]: I'm asking time here. You are saying you are the ones that control this information. You want me to wait two years to complete the 0 reviews, which, of course, then we start a whole other round of discovery. DC [LCDR REYES]: Unfortunately, because the bar for reconsideration is there and the standard is there, that's the -- MJ [COL POHL]: Okay. Go ahead. I've got your position. But you're saying if I don't give you that, what I call two years, year and a half, you are not going to take me up on my one-month offer? DC [LCDR REYES]: Your Honor, we just don't think that is enough time. MJ [COL POHL]: Just answer yes or no.

8 0 0 DC [LCDR REYES]: No, Your Honor. MJ [COL POHL]: Got it. Thank you. Trial Counsel? Ms. Baltes? Simple question, any reason I should wait to do the 0 review? ATC [MS. BALTES]: Absolutely not. Classified discovery that is subject to the 0 process is really no different than unclassified discovery, meaning that the government has an obligation to review all the information in its possession to determine what is discoverable to the defense. 0 only provides a procedural mechanism for which the government takes classified discovery, puts it in a different format so that it is not discovering information that is not relevant or material that remains classified, and gives it to the defense. That's where the government comes to the judge and requests that the judge look at that underlying document, look at the proposed summary so that the government can then give it to the defense. The protective order that you sign with respect to the discovery that the government gives you does not abrogate trial counsel's responsibility, again, for continuing discovery in this case. If facts change, if other facts come to light, if the defense files a discovery request to the government requesting information that we have not provided, 00

9 0 0 at that point if it was subject to a 0 filing, the government is under an obligation to go back and look at that information. I think it is helpful to go back to the practical application of how this happens, though. And again, I think we are talking a little bit in the abstract so I would urge the Court maybe just to rule on the motion that defense counsel filed initially was -- which was requesting to review the proposed substitutions prior to the Military Judge filing a protective order which seems to be before the Court. And if the defense at a later time feels that they have not received the discovery that they believe they are entitled to, I would urge the defense to file a discovery request to the government; the government can respond. If the defense is not satisfied with the government's response, the defense can file a motion to compel, and the discovery issue is litigated. It is litigated whether it is classified or unclassified information. If the parties have an issue about the materiality of information, it is still the Military Judge that determines whether or not that discovery should be provided if it exists to the defense. 0 only provides a mechanism, a procedural mechanism, by which the government can take that 0

10 0 0 discovery to the judge so as not to disclose non-material, irrelevant classified information that the defense is not entitled to get. MJ [COL POHL]: And it is your position that before they can be given to the defense, the judge must conduct said review and issue a protective order including finding that the summaries are adequate? What the defense is asking is basically to interject themselves before that protective order. ATC [MS. BALTES]: It is appropriate and as Your Honor explained to Lieutenant Commander Reyes, the government obviously has options when comes to the discovery of classified information, and if for some reason you decided that the summary was not adequate or that the government needs to provide additional disclosures, the government has to weigh that request and that issue to determine whether or not that is something that the government is willing to comply with, or seek the other remedies under the statute, which could be additional summaries or substitutions, or it could be seeking an interlocutory appeal. MJ [COL POHL]: But the way you read both the statute and the regulation, the judge does a 0 review, provides it to the government with the changes. Assuming there's 0

11 0 0 agreement of what the essence is, it is released to the defense only after the protective order? ATC [MS. BALTES]: Correct. MJ [COL POHL]: Okay. You can't interject the defense before the protective order? ATC [MS. BALTES]: Again, because I think that would ---- MJ [COL POHL]: Defeat the purpose. I got you. ATC [MS. BALTES]: It would again -- I think maybe because we are at the initial stages of this case and defense counsel aren't used to dealing with this type of information. But in practice the government routinely seeks these types of ex parte motions, goes to typically an Article III court, the Article III court issues a protective order, that discovery is turned over to the defense. And I understand that Lieutenant Commander Reyes might point out that reconsideration aspect is not in CIPA, which governs Article III proceedings, and it is in this statute. However, in practice, if you look at the case law, the voluminous body of case law that interprets CIPA, I'm not aware of a single case that authorized reconsideration of summaries. That doesn't mean that the Court has not allowed 0

12 0 0 the defense, as we articulated earlier, to file a discovery motion or to go ex parte to the judge to explain their theory of the case so defense feels comfortable the judge is in a very good position to make those materiality determinations when the government presents the ex parte request. I would urge the defense to do that in this case if they feel that when they receive the discovery from the government, that there is something missing. And, again, theoretically -- or practically speaking, it is very difficult to imagine how that would happen because they don't have access to the underlying document. Again, the government has an obligation to make sure that we comply with all the discovery that has to be provided to the defense, whether it is classified or unclassified. And that continues throughout the case. MJ [COL POHL]: Okay. DC [LCDR REYES]: Your Honor, if I may? MJ [COL POHL]: Commander Reyes, yes, go ahead. DC [LCDR REYES]: A couple points. Government counsel talked about the no cases that she can figure out. The Libby case is one example cited in their case. In the Libby case there was reconsideration, the Scooter Libby case. MJ [COL POHL]: Is that case governed by the M.C.A.? 0

13 0 0 DC [LCDR REYES]: No, Your Honor. Here is another thing -- MJ [COL POHL]: Does it deal with the statute we have got? There are analogies to all sorts of other systems, better, worse, whatever. I think always discussions go much further along if we talk about things that apply to this case. If you believe reconsideration is appropriate in light of where the statute said it is not permitted at all, you have got to give me a reason to ignore the statute. DC [LCDR REYES]: I don't want ---- MJ [COL POHL]: The fact the Libby case under a different statute did something else is not relevant. DC [LCDR REYES]: Your Honor, I don't want you to ignore the statute, I want you to postpone your decision on adequacy of substitution until we can actually give you an appropriate case to help you using that standard. That is all we are asking you. Once you make your decision, we understand the statute says it is final. We are asking you, don't make that decision until we have an opportunity first -- our first request is to review the substitutions themselves, the proposed substitutions ---- MJ [COL POHL]: Consistent with the regulation of the statute? 0

14 0 0 DC [LCDR REYES]: The regulation of the statute doesn't prohibit it. The regulation of the statute doesn't prohibit us from receiving the substitution. MJ [COL POHL]: If you got the substitutions now, okay, then we are back to the problem we talked about earlier, that the cat is now out of the bag. I mean, the government -- you know, the way it is supposed to work is it is in toto, the government makes a decision in toto of what they want to release. And if I release -- if you get them ahead of time, say, "I want this, I want that," and the government chooses, "We are not going to give you this. We will give you this remedy. By the way, give that back to us, forget you ever read it," that is not consistent with the intent of the statute. DC [LCDR REYES]: We ask -- essentially that is a scenario that we would ask your actual decision on the adequacy of substitution not be made until we can actually come up with an informed opinion after examining the evidence and about doing our own investigation before you actually make the decision. With the Commission's indulgence, Your Honor, if I may ask if Mr. Kammen can actually speak on some capital issues that we think are relevant since this is his expertise. 0

15 0 0 I know one counsel one motion, but if he can come to the podium and talk about that, Your Honor? MJ [COL POHL]: Okay. LDC [MR. KAMMEN]: Thank you, Your Honor. The law in courts-martial, the law in Federal Court, presumably the law here is that when a statute talks about making a defense in the context of a capital case, it also talks about defeating capital punishment in the event there is a conviction. Because, I mean, we have two issues. The first is the issue of what's the defense. Well, if they give us 0,000 pages of discovery today, we won't have read it in a month. We won't have the time to read it in a month. 0,000 pages at a minute a page, we won't be done. So that part -- I mean, it's just sort of functionally impossible. MJ [COL POHL]: But if we're somewhere between one month and two years? LDC [MR. KAMMEN]: I agree. Here is the problem, here is the problem as we sit here today. Understanding we -- the resource -- how we apply for resources is now today settled, we will apply for resources today. We don't know how fast that's going to come. Maybe it will come very fast, maybe the case will be well resourced, maybe the mitigation investigation which will have to be conducted in at least two, 0

16 0 0 and in my view probably four or five separate countries, maybe it can proceed rapidly. But we cannot sit here today or in a month and give you any meaningful theory of mitigation. We don't know about -- and I'm not referring to this case, I'm talking a typical case. Part of our obligation is to look at Atkins claims, look at issues of mental retardation, look at issues of brain damage, to look at issues of psychological impairment all of which may or may not apply in this case, none of which we have had the opportunity to look at because of resources. It's not your fault, not my fault, no one's fault, just the way the system works. The problem is we -- you know, we don't know what these 0 notices pertain to. We don't know in what way they may affect -- they may be penalty phase evidence as well as guilt/innocence evidence. We just don't know, and that's fine. The problem is you're being asked to say it is absolutely adequate in a complete factual vacuum. And understanding that is what the government wants, because then you are foreclosed. No matter what happens -- they say we can apply -- talk about more discovery and stuff, but you are foreclosed. All we ask is that, given the realities that you can't revisit it, allow us to at least begin doing our 0

17 0 0 mitigation investigation, let us see how quickly we are going to have resources. It may not be two years. It is not going to be two months, I can tell you that. But let us see how quickly we get resources, let us begin to do our work, let us read the discovery, and then let's see what is reasonable. I mean, otherwise, they can't know -- they say they have an obligation to decide what is relevant. They can't know what is relevant to our mitigation investigation. They can't possibly know that. In the whole history of capital litigation, you know, cases fail when prosecutors say, "We know what is good for the defense in the penalty phase." So all we ask, Your Honor, is to hold off, don't do anything. Let us begin to do our work. Let us begin to get the resources. Let us begin to assemble what we need to assemble. And then when we are back in April, we may have a better idea of what is realistic. But given the -- what may well be the magnitude of these 0 substitutions, because as I understand they could be hugely important to the guilt/innocence part of the case if not the penalty part -- phase part of the case. And given the magnitude of what this may be, you know, please don't make this decision in a capital case in a complete vacuum. I mean, I'm just asking that as fundamental fairness. Clearly in our view it would be a 0

18 0 0 violation of whatever rights the defendant has under the Constitution. And we recognize that that's, you know ---- MJ [COL POHL]: A tenet we haven't gotten to, I understand. LDC [MR. KAMMEN]: Really, fundamental fairness given the stakes and the magnitude. MJ [COL POHL]: Okay. Thank you. Mr. Mattivi, this is more your area than Ms. Baltes. Let me ask you a question. TC [MR. MATTIVI]: Yes, sir. MJ [COL POHL]: Again, I'm getting a little ahead of myself, our next hearing for mid April. We will talk about that in a minute. Would the government suffer any prejudice if I delayed until mid April to decide reading this stuff? TC [MR. MATTIVI]: Yes, I think the fact of the matter is the process is in place. There is no reason the process shouldn't continue. If you will allow me to make a couple comments in response to what Mr. Kammen said? MJ [COL POHL]: Go ahead. TC [MR. MATTIVI]: First of all, the government has no interest in the Military Judge making a decision in a vacuum here. The government is fully committed to the accused receiving all the discovery to which they are entitled. We 0

19 0 0 want to sustain any conviction on appeal ultimately. So we want that to be the case. We want them to have all the robust protections to which they are entitled under the law. I'm always nervous when Mr. Kammen starts attributing motives to us and telling you what the government wants. I don't think he is the right person to address that ---- MJ [COL POHL]: Mr. Mattivi, just so it is clear, I know we are all getting to know each other, is when one side speaks to the other side's motives, I tend -- I listen to every word everybody says, but some I give more weight to than others. So don't worry about that. TC [MR. MATTIVI]: I appreciate that. MJ [COL POHL]: It's all in good faith. I got it. You speak for yourself, and they will speak for themselves. TC [MR. MATTIVI]: Let me speak to one category of information he talked about. Mr. Reyes has been working on this case as long as I have, which is approaching three years. Mr. Kammen has been in the case for quite some time. The mitigation expert was approved by the Convening Authority months and months ago. Mr. Kammen was actually appointed as learned counsel months and months ago. The defense submitted a mitigation report to the

20 0 0 Convening Authority, I believe -- I don't have the date handy. I believe it was back in July. Classified -- tens of thousands of pages of classified discovery were turned over in November. For them to argue that they are just now beginning their work rings hollow in my ears. There has been a lot of information, a lot of resources provided to the defense team for months and months, if not years. That having been said, I think the Court hit on exactly the problem, and that is, if we delay, how long do we delay and have it considered reasonable by the defense? The fact of the matter is there is a process in place. It is a fairly involved process by which you have to review all of these summaries that you have. We have more summaries that are on their way to you. The longer we delay that, the longer the entire process gets delayed. And our point is there is no reason to do that ---- MJ [COL POHL]: Just to be fair, though, is that the government has had this case for a lot longer than defense has, and you just told me there's still evidence to be prepared from the government. So ---- TC [MR. MATTIVI]: Let me address ---- MJ [COL POHL]: ---- how does that track with your idea that they had enough time and you are still addressing

21 0 0 summaries? TC [MR. MATTIVI]: Let me address it. There are certain things we can't do until we get the referral of charges, no matter how long the government had the case, there are certain discovery issues that simply can't be resolved until the government has referred charges. So, I mean, I hope the Court isn't implying the government trial team is sort of sitting around with their feet up on the desk. That is certainly not the case. MJ [COL POHL]: I would never imply such a thing. That is my basic question, is that at the 0 you indicated that there's 0- to 0,000 pages of discovery that you are prepared to turn over to the defense very soon, correct? TC [MR. MATTIVI]: Yes, sir. MJ [COL POHL]: Now, I know you guys are asking for two separate things. What I hear Mr. Kammen ask me for is he doesn't like one month, he knows I don't like two years, so he is saying -- I know he said at a minimum, we may take issue what a minimum is. He is saying let's wait until the April session, and then that will be their -- my intent would be to get no more time than that unless they have a basis for it. I think -- I don't think that particularly harms

22 0 0 the government's case. That is why I just asked you what prejudice do you suffer if we simply delay that one thing until, for three months in a case with thousands of pages of discovery that hasn't been given to defense, and oh, by the way, there is other 0 stuff that I have to consider anyway, correct? TC [MR. MATTIVI]: There is, absolutely. MJ [COL POHL]: That strikes to me -- it is not two years, but not one month. TC [MR. MATTIVI]: This may not be the answer you are looking for, Judge, I would like to respond not with a prejudice argument, but with a necessity argument. And the necessity argument is we are going to -- hopefully, you are going to sign the protective order and authorize the release of the first in total batch of 0. There will be another batch that follows. And after Ms. Baltes' comments, I have no doubt it seems objectively reasonable that we are going to get requests for discovery. We are going to get requests for discovery whether you wait until a month from now to receive that submission or wait until three months from now. The requests for discovery of additional information based upon the substitutions are going to be there. So I understand you are

23 0 0 looking for me to articulate how the government is prejudiced. I submit we are prejudiced by delaying the process. The more compelling, I think, is the necessity argument. We are going to be arguing over that stuff any way. MJ [COL POHL]: We may be arguing over discovery issues, and I will be interested to how this plays, I don't think we will be arguing over summary issues, are we? Once the decision is made, isn't it final in the statute? TC [MR. MATTIVI]: Once the decision is made it is final. MJ [COL POHL]: I'm applying the words of the statute ---- TC [MR. MATTIVI]: We agree with that. We have already talked about the remedy. And the remedy is a motion for additional discovery. MJ [COL POHL]: But does that remedy for additional discovery mean to revisit -- the judge to revisit the 0 summary? TC [MR. MATTIVI]: It requires the government to go back through all ---- MJ [COL POHL]: Answer my question. They submitted a request for additional discovery, okay, and you go back and you look at a summary, okay? Am I -- but I'm not going back

24 0 0 and doing any more 0 reviews, am I? This may be a Ms. Baltes. Okay. Let me clarify that point. Then we can ---- TC [MR. MATTIVI]: Okay. MJ [COL POHL]: ---- hopefully move it along. Ma'am, you understand my ---- ATC [MS. BALTES]: Absolutely. If the defense files a defense request, the government -- again, I can't imagine how this would happen, but theoretically if the defense makes a discovery request based on information they believe they are entitled to, the government goes back and in the entire universe of material that is in the possession of the government which may include the same classified documents that we had previously submitted to the Military Judge, if the government finds that there is responsive information in that, and it is classified, we would have to redo a 0 process. Which means we would then bring additional substitutions to the Military Judge and request a new protective order. Again, I, based on how ---- MJ [COL POHL]: That is the only time I would get involved is after you made a decision that, as you do now, that there may be relevant and necessary or relevant material in the 0.

25 0 0 ATC [MS. BALTES]: Exactly right because the government is the one in possession of the information whether classified or unclassified. MJ [COL POHL]: Okay, okay, I got it. Thank you. I will not ask if there is anything more. TC [MR. MATTIVI]: Unless you want something. MJ [COL POHL]: I'm done. TC [MR. MATTIVI]: Thank you. MJ [COL POHL]: Defense, your motion had a lot of parts and they just kind of evolved during the discussion, so here is the ruling on it. Your part of your motion that requests to submit an ex parte recitation of information that you want to submit to me to consider when doing the 0 reviews is granted. Mr. Kammen's request to delay until the April hearing to submit such request is also granted. Understand that Mr. Kammen didn't say he was going to submit it by April, simply that in April he would have a better idea, okay? I'm telling you after, absent extraordinary circumstances, that is your opportunity to submit it. If not submitted in April, the 0 reviews will continue without the submission. Your motion as it goes to review the 0 materials prior to the order -- protective order being issued is denied.

26 0 0 That is not consistent with the reg or, quite frankly, the intent of the statute. I believe that addresses all the issues of your motion. Did I miss any? DC [LCDR REYES]: That is it, Your Honor. MJ [COL POHL]: Trial Counsel, any questions? ATC [MS. BALTES]: Thank you, Your Honor. No, thank you. MJ [COL POHL]: Just to be clear is that once the protective order is issued, it will not be reconsidered. That is what the statute says. I will follow the statute, unless you can convince me there's a contravening legal authority that will say I should ignore that part of the statute, which is always possible. Okay. The last matter ---- Two things, one is during the 0 the government requested to clarify, make sure the defense was still requesting a delay to at least November of 0 I believe is what our mark on the wall is for this trial date, and therefore is not demanding any type of speedy trial or asserting its 0 rights? LDC [MR. KAMMEN]: That is correct, Your Honor. And we will be very clear; we will be asking to delay the November 0 date.

27 0 0 MJ [COL POHL]: Also, Mr. Kammen, perhaps if you return to the podium we will discuss the other issue you wanted me to clarify. LDC [MR. KAMMEN]: Yes. MJ [COL POHL]: Mr. Kammen, you asked me to clarify my ruling on the notice ---- LDC [MR. KAMMEN]: Yes. MJ [COL POHL]: ---- for expert assistance. Here is the way I interpret my own ruling, is that you are to comply with the letter of 0 Delta as I interpret that, which means you provide the name -- assuming it is an expert, it could be other. We are talking about assistance so I'm sure it is probably an expert -- the area of expertise, and a showing, how detailed is up to you, of its relevance -- one moment, please. I'm sorry, the showing of its necessity relevant to factor, and the cost factor listed in 0 Delta. LDC [MR. KAMMEN]: I'm sorry. MJ [COL POHL]: The cost factors. How much per hour, how many hours, things like that. Because once it is approved the way the government does business is a firm ---- LDC [MR. KAMMEN]: Yes, I understand. MJ [COL POHL]: ---- a firm, fixed contract, not contract guide how much money we are committing, okay.

28 0 0 LDC [MR. KAMMEN]: Yes. MJ [COL POHL]: Any questions about that? LDC [MR. KAMMEN]: Only two, I just wanted to clarify. MJ [COL POHL]: Sure. LDC [MR. KAMMEN]: We clarified this at the 0. Despite the fact the government said that they were satisfied that this, what we had originally proposed, not be served on them, they only have minimal -- minimal notice, the Court is ordering that all -- everything submitted to the Convening Authority be provided to the government as well. MJ [COL POHL]: In accordance with normal court-martial practice. LDC [MR. KAMMEN]: Okay. MJ [COL POHL]: And if the Convening Authority chooses not to act on it or returns it because in his view the statement of reasons are inadequate, you have two options: One is to resubmit with, I guess, additional information, or two is consider that a denial by the Convening Authority and raise it to the Commission. LDC [MR. KAMMEN]: And just so the Court ---- MJ [COL POHL]: Understand, I may agree with him that it is inadequate ---- LDC [MR. KAMMEN]: I understand, no

29 0 0 MJ [COL POHL]: ---- and to be clear, I'm only going to decide only evidence presented to the Convening Authority, unless you establish exceptional circumstances. LDC [MR. KAMMEN]: The exceptional circumstances -- and this is the rub, and we discussed it yesterday. I just wanted to make sure that we are all on the same page. Especially if I have to give it to the government, I cannot provide attorney-client material or work product. And so what you are basically -- as I'm understanding the Commission's ruling, you are saying give it to the Convening Authority, do the best you can, but withhold from the Convening Authority the attorney-client material or attorney work product material that would help justify it. And then if the Convening Authority turns it down, I can't even submit it to you ex parte at that time. MJ [COL POHL]: Okay. As I understand my own ruling, is I'm not going to require you to provide privileged material. That's clear. LDC [MR. KAMMEN]: To either the government or the Convening Authority. MJ [COL POHL]: Or the Convening Authority. Now, work product is a different issue, because by definition, when you say I want an expert in X and the reason

30 0 0 for that is issue X that is going to be something in this case, there is a work product implication or component to that. And I don't know how you get around that one the way the rule is worded. Do you understand what I'm saying about that? LDC [MR. KAMMEN]: Let me talk about another case, just without mentioning names, just so the Court understands how this can play out. In another case in which I was involved, we came across some medical records, and those medical records were also available to the prosecution in that case. Our analysis of the medical records told us facts that were very germane to an expert request. In that case we were able to say to the judge ex parte, "Here are these facts which are germane to the expert request." It would be a very difficult and much different equation if to do that we have to tell the government, because that really compromises the defense. MJ [COL POHL]: What I think I was trying to say, perhaps not very clearly, is that I think inherent in the nature of the rule, some work product at least implicitly is going to be disclosed. I mean, you've made a decision you need a DNA expert. Arguably, that's ---- LDC [MR. KAMMEN]: Those kind of experts are easy. MJ [COL POHL]: Yes, but I'm saying if you run into a

31 0 0 situation where you need to supplement it with information that you believe will prejudice your case by disclosure to the government, other than what we ---- LDC [MR. KAMMEN]: Right. MJ [COL POHL]: We disagree on the baseline. I got that. I'm saying more than that, you always have the option to go to the Convening Authority to request his ex parte decision. If he turns it down, come to me and say, "This is an extraordinary circumstance," and I will cross that bridge. That is the way I think we will apply the rule and protect what you are talking about. That, to me, may be exceptional circumstances. There comes a point in time in a capital case where the rules in place be applied, I believe, in a flexible manner consistent with the intent of a fair trial to both parties. And if we get to that point -- again, this is like most of our discussions the last couple of days, this may or may not be ---- LDC [MR. KAMMEN]: I may be proved wrong. The Convening Authority ---- MJ [COL POHL]: That is where we are at. We may end up going back and forth. But I will tell you this, if you are not sure whether it needs to be disclosed or not because you

32 0 0 think it may hurt your case, I'd err on the side of not disclosing. Because the worst you will get from me is that you can tell this to the Convening Authority and go back to them. LDC [MR. KAMMEN]: I just wanted to make sure I was complying with your order so that when we are here in April and we are fighting again, at least we are all able to say, "Yeah, you complied with my order." MJ [COL POHL]: Thank you. Trial Counsel, does that comport with your understanding -- my understanding of my own order comport with your understanding of my order? TC [MR. MATTIVI]: Yes. MJ [COL POHL]: The only outstanding issue we have left is the proposed litigation schedule, understanding that ---- Mr. Kammen, do you have something else? LDC [MR. KAMMEN]: No. No. I didn't know if I should be back up there. MJ [COL POHL]: I don't think so. Hopefully everybody will just nod their heads and we can complete. Hope springs eternal. The counsel indicated we discussed earlier the litigation schedule. When I get back, I will set a firm date for the next hearing for this Commission here which will be

33 0 0 scheduled for mid to late April. A month before said hearing will be the suspense for defense to file what they've called facial challenges to parts of the statute, the procedure, what the government characterizes as law motions. Those are motions that don't require an evidentiary basis. They are essentially strictly legal issues. Once that date is set, again a month, two months before then, the defense is to file those that are ready at that time with the understanding that it doesn't preclude them from filing additional ones, which strikes to the Commission we can get some of those done now and move on. The government will be given two weeks to respond, the defense will be given one week after that to reply, and a week later we will have the hearing. Again, I will set a date on the wall, a date to all sides of the proposed date of the hearing. Let me know whether it works, then I will send out a docket order that includes these suspenses in it. At the same time, Defense, if you have any other motions you wish to litigate, discovery motions, things like that, it is the Commission's understanding you have been denied a certain amount of discovery, you want to address that issue, and that will be at that time. Understand any other motions in order to be litigated at that session have got to

34 0 0 be filed within the time requirements, not that that means you won't be able to litigate them, but I will not reward either side for late submissions. Each side will have the normal -- whatever the rules of court say, normal time to respond and reply. Currently, we maybe have another motion we have not addressed today. If necessary, we may set up an 0 between now and April to discuss the issues. Also that, to remind the defense, is the date for either your -- the date for your decision on whether you wish to submit an ex parte submission on the 0 matters, and if the answer to that is yes, that is the date to submit it or good cause why you need more time. Okay. Any other issues either one thinks we can set for April? Trial Counsel? TC [MR. MATTIVI]: Nothing from the government at this time. MJ [COL POHL]: I understand there is always a chance for discovery issues. TC [MR. MATTIVI]: Yes. MJ [COL POHL]: That's never-ending. Defense? LDC [MR. KAMMEN]: Nothing additional. MJ [COL POHL]: As time moves on between now and

35 0 then ---- LDC [MR. KAMMEN]: Apparently we will revisit the issue regarding the chains in April, and that will be a much more elaborate hearing that will almost certainly require a closed session. MJ [COL POHL]: Okay. That's fine. That's fine. Once we get an idea, we will figure out what kind of time we may need because we may not be able to do it in two days. Commission is in recess. [The Military Commission recessed at, January 0.] 0