12/17 Motions Session #3: On Reconsideration

46C is on deck now---at least so far as it relates to the might-get-argued-might-not AE008.

In it, Cheryl Bormann asks the court to revisit a related and earlier decision not to compel discovery.  She desires to know more about the role played by the then-Convening Authority’s legal advisors, Mssrs. Breslin and Chapman, in devising legal mail and other procedures relevant to the attorney-client relationship.  These lie at the heart of the defense’s threshold challenges to the case, both in AE008 as well as in AE031, a motion to dismiss for unlawful influence.

The Commission had denied the request earlier, reasoning that the Convening Authority (at the time Retired Vice Admiral Bruce MacDonald) himself could testify as to how the case was handled during the pre-referral stages. Now Bormann has renewed the defense’s bid to find out more, in light of what the Convening Authority eventually told the court during an earlier pre-trial session.  Among other things, MacDonald testified that, in devising Guantanamo procedures before referral, he had relied entirely on advice given to him by Breslin and Chapman.  And those procedures just happened to have licensed intrusive searches of detainees’ legal mail, among other things.  They put representation-stopping barriers between Bormann and her client, and crippled her ability to prepare mitigation evidence during MacDonald’s review.

The military judge's question is this: precisely what would these two witnesses really add? Why revisit my earlier ruling now?  Bormann answers that the record, so far, is only partial---as MacDonald’s testimony makes clear.  Judge Pohl still doesn’t get the underlying legal theory: Bormann’s claim is that her side was entitled to access and resources from the Convening Authority, but didn’t receive them.  Assuming that’s true factually, what law required the Convening Authority to grant those requests?  Counsel refers to Due Process.  But, Judge Pohl rejoins, pre-indictment input from the defense is certainly unusual in federal court; it thus cannot be Due Process that’s the problem.  Well, Bormann says, this situation is different, and, seemingly, Due Process might be, too: its a capital case, and the government can’t just half-offer needed stuff to the defense without delivering. Judge Pohl is still scratching his head about Due Process.  Wouldn’t referral---the case going forward---help to vindicate that right?  This ensures, after all, judicial review and a right to discovery of---among other things---mitigating evidence.

Court and counsel bat this larger question around, before returning to the narrower one before them.  The former (seemingly) thinks there’s enough evidence in the record, and that nothing has changed so as to warrant the reconsideration sought in 46C; the latter disagrees, emphasizing issues raised by the Convening Authority himself in his testimony.  Admiral MacDonald said he wasn’t truly responsible for coming up with the rules that prejudiced the defense, before the case’s filing.  And among other case-critical, potentially-outcome-altering things, Bormann argues, the legal advisor also did not include any serious analysis of torture from the pre-trial legal advice he furnished to the Convening Authority about the case.  She all but asks: what if he had?  Bormann sits.

One of Khalid Sheikh Mohammed’s lawyers, David Nevin, supplements Bormann’s remarks briefly.  Like Bormann, Nevin underscores the Convening Authority’s testimony, and its significance for the motion to reconsider as to Breslin and Chapman.  The former rested heavily on the idea that the latter had told him to do this or that---while pointedly disclaiming any real investigation of his own into the underlying issues.  Judge Pohl still doesn’t see any “there,” there, at least gauging by his queries to Nevin.  Still, the lawyer pushes on, to a related point: military commission rules insist that detainees be “represented” by counsel. Prior GTMO procedures---and Breslin’s and Chapman’s roles in bringing those about---call compliance with the representation rule into question.  All the more so given that neither Breslin, nor Chapman nor the Convening Authority, have experience in capital cases. How would they have known which matters to weigh heavily, and which ones to ignore?  Nevin sits, and a pair of colleagues---James Harrington, for Bin Al Shibh, and Lt. Col. Sterling Thomas, for Al-Baluchi---then add a word or three.  The first emphasizes the need to adhere to procedural rules in death cases, and the role that Breslin and Chapman could have played; the second explains that the sought witnesses in AE046C could clear up the murk about how the case ultimately was referred capital.  Throughout, the military judge openly questions why all of this should matter.  What is the relevance of possible mitigation issues contemplated by either legal advisor, but never included in legal advice actually furnished, in writing, to the Convening Authority?  Bormann answers: Chapman, she says, also played a part in the decision not to refer Al-Qahtani’s case---which was famously rejected because of torture.  This goes to legitimacy.

Wrong, argues prosecutor Jeffrey Groharing.  In his view the defense just hasn’t established why these witnesses are relevant and necessary. We’ve already heard extensive evidence from witnesses with direct knowledge of the issues in play---chiefly the Convening Authority himself.  Next Groharing blasts Bormann’s suggestion that there’s a Due Process right to defense input at the pre-referral stage.  Well, such input comes post-indictment in federal capital cases; the United States’ stance towards the death penalty in alleged Boston bomber Dzhokhar Tsarnaev’s case, after all, hasn’t yet been worked out.  (The Attorney General, acknowledges Groharing, is obligated by regulation to consider items in mitigation from defense counsel---but that’s just a matter of regulation, not the Constitution.)  Summing up, the prosecutor mentions the defense’s burden, which isn’t high at all.  But they still haven’t met it, he argues; its just not enough to suggest, as Bormann did, that Chapman deliberately could have withheld an analysis of torture in order to permit the 9/11 case to proceed on a capital basis. The motion to reconsider should be denied. So much for AE046C’s possible bearing on AE008.  But what of its relevance to AE031, the unlawful influence motion?  The argument here proceeds along lines quite similar to those above, so we'll summarize briskly.  In short, defense counsel also insist that Chapman and Breslin could tell us something relevant to the unlawful influence motion, too, and for quite similar reasons---as Ruiz and another of KSM’s lawyers, Maj. Derek Poteet, explain. Among other things, the Convening Authority’s legal advisors apparently discussed a draft GTMO policy implicating the attorney-client privilege;  they also played a role in devising other orders governing lawyer-detainee communications at the camp.  This, in the defense’s view, evidenced unlawful influence.  Ruiz winds up with his desired relief: his motion asks for the case’s dismissal, the removal of the death penalty as a sentencing option, and the disqualification of Chapman, the only of the three witnesses still serving at the Convening Authority's office.

Up comes Groharing again, and he reiterates his side’s earlier arguments.  When asked, the prosecutor rejects the defense’s suggestion that the Convening Authority overstepped its bounds or acted unlawfully in consulting with the JTF staff about would-be detainee communications rules. Poteet and Ruiz, though, strongly claim to the contrary.  Ruiz, in particular, cites military commission Rule 406, regarding the Convening Authority's receipt of pre-trial advice.  According to the rule's commentary, such advice must be accurate and complete---something that it very much couldn't have been if the Convening Authority and his legal advisors are busy consulting with the camp commander about written communications, as Ruiz and company have alleged.  No authority permits the Convening Authority to do that, in Ruiz’s view.

Will there be more on 46C?  We’ll find out after lunch.