12/18 Motions Session #4: Wrapping Up Defense Argument on AE008

We’re back.  What’s next?

We learn after some ever brief additional input from Bogucki, regarding his emergency filings on Bin Al Shibh’s behalf; and some comments from Bormann, regarding the “Privilege Review Team."  The latter, according to her, has refused to review certain markings on made by Bormann on classification grounds.  (The markings concerned remarks uttered by Bormann’s client, Walid Bin Attash.)  Bormann is aggrieved, given the effort required to comply with the court’s newly-minted regime.  The back-and-forth on housekeeping occupies only a few minutes.

Then we march on---or back, really, to AE008.  (Some counsel had presented argument on that pleading earlier in the hearing.)  Learned Counsel for Bin Al Shibh, James Harrington, takes up the merits of this motion, the defense’s request to dismiss the case for defective referral.  One big-ticket, alleged defect: the back-breakingly small window of time, given to the defense to submit mitigating evidence to the Convening Authority, as the latter mulled whether to capital charges, non-capital charges, or no charges at all.  Harrington, for his part, had even less time than some other defense lawyers, because his clearance was not granted in a timely fashion. But when at last it was, the Convening Authority rejected Harrington’s bid for a further extension of the mitigation deadline, and a bid to reconsider that denial, too.  Cultural issues mattered all the while.  For Harrington’s background was and is vastly different than his client’s, to put it mildly; establishing a client relationship is hard enough, he argues, and all the more so under conditions such as these.  The lawyer notes that mitigation is an ongoing, evolving process, and thus is never really done; Harrington is thus doubtful that he could put together a full mitigation submission together, now.  He sums up: he didn’t have nearly enough time or resources to inquire into mitigation, during the pre-referral phase.  

This moves the military judge to sum up what seems to be his own emerging position: dismissal of the case would leave Harrington and company with no judicial supervision; but not if counsel simply prepares and submits a mitigation case to the Convening Authority going forward, as provided for by commission rules.  Judge Pohl also nods towards the protective order and Memorandum of Understanding---both of which, if signed, would enable Harrington to access a lot more stuff, and thus prepare a better mitigation case.  Harrington acknowledges these arguments and makes a few points more---and then sits.

Now Air Fore Col. Sterling Thomas stands, on behalf of Ammar al-Baluchi.  Like Harrington, Thomas says he just couldn’t form a meaningful relationship with his client pre-referral; like Harrington, Thomas assails the Convening Authority’s cramped timetable for preparing mitigation matters.  (Al-Baluchi’s lawyers eventually made a partial submission to the Convening Authority.)  He adds that the so-called “baseline review,” and seizures of detainees’ legal materials, greatly undermined an already delicate dynamic between Thomas, co-counsel, and detainee.  Judge Pohl interjects with his “no referral-no judge” point; would your relationship really be improved by a dismissal, counsel?  But the notion of not dismissing isn't good enough for Thomas.  The government must bear the consequences of the defect, not us; it has to go back and start over, and learn from its mistakes.  Though Thomas’ crew made a mitigation submission, he emphasizes that this represented the best they could do under then-prevailing conditions----and that wasn't very much.  The partial submission wasn’t adequate. Elaborating, Thomas says his side isn’t ready, today, to make a fuller mitigation presentation.  Al-Baluchi’s team hasn’t ever stopped working the issue, though.

The court asks about any current barriers to the ongoing mitigation effort, having in mind new rules for written communications.  Thomas is reluctant to identify particular problems, though he alludes to pending motions regarding the on-the-ground functioning of the court’s recent communications orders.  Having all this in mind, he nevertheless guesses at a mitigation timetable: sixty days, give or take, according to the lawyer.  Thomas makes a point or three further, chiefly about the legal right to effective representation in a capital case, pre-referral.  He’s keen to emphasize the absence of procedural safeguards, which make the risks ever higher in a capital case.