12/17 Motions Session #6: AE008 II

It’s 3:34 p.m. when the gong sounds in the Expeditionary Legal Complex, Courtroom Two.  Its brassy (though of course imaginary) note signals official resumption of the afternoon’s fun, and further legal argument from Walter Ruiz on AE008---the defense’s motion to dismiss for defective referral.

Al-Hawsawi’s now-civilian lawyer takes on the prosecution’s core legal critique of AE008.  The latter insists that there isn’t any defense right to present mitigation evidence before the a commission case is referred; nothing to see here. Not so fast, argues the attorney. Consider the differences between other proceedings, where no pre-indictment input is required, and this one.  There’s no grand jury review in advance of a capital referral in a military commission, but there very much is in civilian court.  And there are distinctions in the two systems’ rules, to boot.  Ruiz here refers to commission Rule 406, which explains why significant mitigating or extenuating evidence should be included in pre-referral advice, if such evidence exists.  There’s no equivalent procedure in federal court, though.  All this this-court-yes, that-court-no is suggestive, in Ruiz’s mind, of a wider role for the defense in preliminary proceedings at Guantanamo. That’s backed up by a number of supporting cases that Ruiz briefly summarizes. He has in mind effective assistance of counsel rulings, which underscore the importance of critical, pre-trial processes.

The military commission pushes back on Ruiz, by means of various hypotheticals. Suppose you couldn’t make a mitigation submission at all.  Or, what if the Convening Authority had known the same interrogation information as the government knew, before the Convening Authority decided the case’s future?  Ruiz doesn’t definitively answer either of Judge Pohl’s queries.  The latter explains: he desires to explore the defense’s claim that pre-trial advice to the Convening Authority (which omitted mention of torture) was legally insufficient.  Okay then, Judge Pohl seems to say---what would sufficient advice look like?

The question takes Ruiz to his final point: if the state decides, as a matter of discretion, to provide a benefit to a capital defendant, then the state can’t go half-way or a quarter of the way---as happened here, with the Convening Authority’s provision of some procedural fairness, pre-referral, but not enough to rise to a minimally adequate level.  Put another way, the Convening Authority was barred from acting in an arbitrary or capricious way, but did just that, chiefly by funding translators in principle but then stoutly refusing to provide any adequate translators to Ruiz and his client.  The self-defeating gesture points smells of unlawfulness.  The lawyer makes a few points more, and then concludes---all the while emphasizing the great impediments to effective representation, before referral.  

The baton passes to KSM attorney David Nevin---who reprises some of Ruiz’s complaints.  The court also does some reprising of queries he put to counsel earlier.  If you had not been given any opportunity to present mitigation, counsel, would we be here?  Like Ruiz, Nevin doesn’t stake out a position about the counterfactual; context is key, answers the attorney. Still, Nevin reiterates his surprise that nobody in the Convening Authority’s office had criminal, much less capital, experience.  Contrast this with the Department of Justice, which has a capital case unit stocked with seasoned attorneys.  Eventually, Nevin does offer up some clue as to his view about what might have been: depriving counsel completely, of any pre-referral mitigation capability, violates the Due Process clause and other principles.

The court, in keeping with an earlier theme, auditions a little idea. If I conclude that you are entitled to a meaningful opportunity to present mitigating material, counsel, and that you can take such an opportunity now, then what kind of timetable are we looking at?  No ruling is really needed at all, the court adds, to get Nevin moving in that respect. Nevin starts to answer, touting recent, judge-made changes to the case’s rules, which---quite unlike before---ease his confidential conversations with KSM about his treatment. But before he gets to far, Nevin pivots back to what happened early on the case. Some of the Convening Authority’s decisions had an arbitrary feel, Nevin recalls. The latter granted counsel a sixty-day extension to present mitigation evidence---despite having needed that time or more just to read the case’s background materials.  How can that possibly have been reasonable?

The military judge again plays on a familiar string, suggesting that referral (not delay) might have helped the defense’s situation by adding judicial review where none existed before. He adds that dismissal would dissolve this favorable state of affairs, and thus bring about a fire/frying pan sort of scenario for defense counsel.  And what about the the recent communications rulings? Can’t counsel now communicate more freely with his client---and thus proceed with a satisfactory mitigation investigation? The attorney sees in these questions an opportunity, to remind Judge Pohl of another option available to him: striking the death penalty as an option, but preserving the current prosecution.

Summing up the referral’s defects, KSM’s attorney mentions the conclusions of his capital case experts.  As he explains to Judge Pohl, three such experts concluded that the barriers thrown in Nevin’s and his colleagues’ path during the pre-referral stages---the flawed communications orders that prevailed until their partial revision quite recently, among other things---had prevented the kinds of representation required by the Military Commissions Act and ABA death penalty guidelines.  Nevin marries to this a broadside against the Convening Authority’s own shoddy evaluation of the case.  The latter evidently conferred with no capital experts of his own, during the pre-referral phase---but instead with legal advisors who incorrectly advised the Convening Authority that Guantanamo lawyer-client rules were permissive enough to permit substantial, confidential lawyer-client discussions.  (They weren’t, according to Nevin.) The end result, Nevin argues: defense counsel either weren’t effectively representing KSM, or even representing him at all.  That’s why AE008 should be granted.

Now Air Force Capt. Michael Schwartz rises on behalf of Walid Bin Attash. Schwartz describes some particular facts relevant to his client, with respect to AE008.  Because of detailing and security decisions, Bin Attash only had lawyers assigned to him---at all--for a measly four months prior to the Convening Authority’s mitigation submission deadline.   That cannot possibly have satisfied the Military Commissions Act’s “representation” requirement, as the lawyer sees things; all the more so given Bin Attash’s torture and detention abroad before his transfer to GTMO.

The court asks some by-now expected questions about recent tweaks to communications rules. Could the lawyer now prepare a mitigation submission, and if so, how long would that take?  Its hard for Schwartz to say, but he guesses that two to four months might be adequate. The lawyer goes on a bit more, referring to innocuous documents that he wanted to bring into meetings with Bin Attash, but could not during the bad old days of the Woods Orders: court opinions, and, comically, the Woods Order itself.  More shortcomings:  Bin Attash went without an investigator and suitable, cleared mitigation specialist during the pre-referral stage; his team’s sole paralegal also rotated out of assignment, and wasn’t replaced until much much later.  A bit more along these lines, and the lawyer is done.

We’re in recess until tomorrow.