6/17 Motions Session #5: Definitely a MacDonald-Focused Day

Next to explore Admiral Bruce MacDonald’s actions during the pre-referral phase is James Harrington.  He’s a lawyer for Ramzi bin Al Shibh.

When questioned by Harrington, the witness acknowledges that prior to appointment, he lacked experience in capital cases.  Thus he directed his staff to research and brief him on federal capital procedures---indictment, review by DOJ’s capital case unit, the work of mitigation specialists and so forth.  The witness emphasizes that mitigation submission could not be open-ended, and take years; MacDonald had to take victims’ interests, for example, into account, and therefore he set what he viewed as a reasonable schedule during pre-referral.  Among items the witness expected to see in mitigation was evidence reflecting the accuseds’ subjection to abusive interrogation methods---though MacDonald himself did not specifically request any such evidence from defense or prosecution.

Harrington observes that he was appointed Learned Counsel in summer 2011, but not cleared by security personnel until December---on the same day, it turns out, that MacDonald pushed the mitigation deadline to February.  This case’s marked the first mitigation submission the witness had ever reviewed.  The former Convening Authority also reviewed ABA capital case guidelines, but only to the extent cited by defense counsel in items submitted to MacDonald---not all such guidelines.  Again, Harrington presses about MacDonald’s brisk pre-referral timetable, and the defense’s lack of a cleared mitigation expert at the time; again, the witness rejects the lawyer’s characterization, and notes that he resolved to make his referral decision---to go forward with capital charges or not---while having a mind towards all parties’ interests, prosecution, defense, victims, and so on.  But I didn’t have time to squeeze in adequate mitigation investigation at the time, Harrington protests, given GTMO’s remoteness, the cultural gap between client and counsel, and my belated clearance other things.  Why did you not then extend the mitigation deadline, as I asked in correspondence?  The Admiral answers much as he did to similar questions put to him earlier, by Ruiz.  You could start doing a mitigation investigation, counsel, despite all of the foregoing.  And Connell made a submission, on his client’s behalf, based on his mitigation work to date, MacDonald says.  Two amended submissions came in afterwards, too, and I considered those, too, over the course of two months.

MacDonald insists that he was under no political pressure, when Harrington asks about the notion.  He also doesn’t specifically recall President Bush’s statement concerning bin Al Shibh's arrest.  A few questions more, and Harrington sits.

A five minute “recess in place” now, during which---we gather from her comments---Cheryl Bormann must address some technical and security issues.