12/17 Motions Session #5: AE008

The stage is set for a key defense challenge, AE008.  After a year and a half, its time to debate this enduring docket item. Doing that will be a job for Walter Ruiz, one of Al-Hawsawi’s attorneys. The task: to explain why the pre-referral phase pervasively deprived the defense of any ability to uncover and present mitigation evidence---so pervasively that the case should be tossed, delayed, or the death penalty taken off the table.

So far as concerns Al-Hawsawi, this deprivation consisted (among other things) of a lack of any security-cleared, defense-aligned, Arabic-fluent translators.  As Ruiz has long argued, he needed such people badly pre-referral, but didn’t get any, despite repeatedly asking the Convening Authority.  In fact, from March of 2011 to June of 2012---the period comprising the pre-referral phase and then some---Ruiz says his client was without a dedicated, cleared translator.  Sure, the lawyer had substitutes available, but such folks were pitifully inadequate to his needs, because they lacked clearances or couldn’t travel to Guantanamo or other things. All this prejudiced Ruiz’s representation, because Al-Hawsawi isn’t a native English speaker, and lacks legal training, and because he was interviewed by authorities without a translator’s assistance.

With the aid of projected slides, the defense attorney then trots briefly through what is by now a pretty well-aired history of how he sought, time and again, to obtain translation help; and how the Convening Authority time and again ignored him, delayed, or provided personnel that weren’t up to snuff.  Ruiz sharply disputes---and derides as misleading---the Convening Authority’s testimony that Ruiz’s crew deliberately had slowed matters, by insisting upon candidates who did not yet have needed security clearances. And Ruiz further explains that the Convening Authority only agreed to make pre-cleared personnel, with active DIA clearances, available to Ruiz and company in 2012---after the case’s charges were filed.  Then Ruiz explains his attempts to work around the translator shortage.  He has, he says, relied heavily on document translators.  But that’s been cumbersome and obviously precluded the kinds of face-to-face discussions central to the attorney-client relationship.

Apropos of that relationship, Ruiz has some more complaints about the pre-referral stage.  One has to do with impingements on confidential communications between detainees and their lawyers. There were many such impingements at the time, and they combined with the translation problem to corrode the attorneys’ relationships with their clients. It is true, Ruiz concedes, that the Convening Authority furnished mitigation experts to the defense team then. But here’s the thing: those experts’ compensation was tied specifically to the pre-referral stage. In Ruiz’s view, that implied a need for such experts to provide at least a minimally adequate mitigation submission to the Convening Authority before he chose to refer the case, capital or otherwise. But that’s not what happened, as we all know.

This prompts the court to ask about whether Ruiz could simply assemble a mitigation filing today, as provided for under commission rules. How much time would that take? Ten months to a year, answers the lawyer.  That’s more time then Ruiz sought initially, from the Convening Authority---but the expansion is warranted, he says, given the case’s pendency and the need to litigate the case in the meantime.  The case could be continued for ten months, Ruiz hypothesizes.  A bit further follows, in which Ruiz recites some relevant law, among other things. The right to Learned Counsel, in his view, attaches during the pre-referral phase.  He doesn’t get too far into this argument before Judge Pohl calls a quick break.