6/17 Motions Session #6: Make That a MacDonald-Only Day

The Unsurprisingly Abaya-ed Cheryl Bormann’s logistical issues go unaddressed, despite our ongoing “recess in place.”  Non-resolution of her complaint gives the military judge an idea: David Nevin will ask his questions, and Bin Attash’s attorney will have her turn tomorrow.  Problem solved.

Thus to the podium comes Nevin, one of KSM’s two civilian death penalty lawyers.  The witness acknowledges that he hasn’t been involved in criminal cases for about twenty years.  He’s never been a judge, and while he served as a Convening Authority in the Navy, earlier on---he did not convened any cases during that assignment.  The Admiral, when asked for confirmation by Nevin, admits that he lacked capital case experience prior to the swearing of charges in this case.  Like Harrington, Nevin asks about why MacDonald gave counsel only 60 days, after renewal of his security clearance, to develop a mitigation submission.  The rationale matters to the lawyer, given MacDonald’s own confessed inexperience in death cases.  The 60-day figure was a product of consultations with staff, the witness tells him.  Consultations based on what?  Not some formula, but advice and precedent: Susan Crawford, MacDonald’s predecessor, had given counsel 2-3 months between security sign-off and mitigation deadline during her tenure.  It’s odd, from Nevin’s standpoint; the lawyer notes that MacDonald needed as many months himself, simply to read the referral binders in the case.  If so, then how could counsel investigate and prepare needed mitigation material in as much or even less time?  Or, to put the point another way---why no extension?  The witness plays on his by-now familiar string, and answers as he has throughout the day.

About MacDonald’s draft protective order, and contraband: this allowed for open discussion---no legal or security bar at all---with Nevin’s client, of all matters directly related to the defense of a detainee, right?  Yes.  But Nevin says he later told MacDonald that Woods’ orders didn’t comply with this permissive directive, and instead restricted attorney-client interactions.  Answering, the witness says he thought the language was similar in both his and Woods’ orders, but in any event, MacDonald’s staff reviewed Admiral Woods’s handiwork and determined that Nevin’s allegations were unfounded. And that is partly why the witness denied the attorney’s request for an extension of time to submit matters in mitigation---though the Admiral acknowledges that, were Nevin correct (and if there were serious constraints on Nevin’s communications with KSM) a postponement of the deadline might have been warranted.

But here’s the kicker, as Nevin set forth in prior correspondence with MacDonald during pre-referral: mitigation investigation naturally required a long look into torture issues---the witness himself publicly characterized waterboarding as torture before---and thus extensive discussions with KSM about them to boot.  Relatedly, Nevin’s expert also concluded that, by banning discussion of “jihad,” JTF policies prevented any exchanges with the client about the offense or the prosecution’s evidence---and thereby violated his rights to counsel pre-referral.  Of course MacDonald’s staff disagreed on all counts, he says in response to Nevin’s queries.  Then the lawyer cites all kinds of arbitrary, JTF-imposed bans on items at counsel-client meetings---they couldn’t bring in absolutely necessary things, like a copy of the charges, the military commissions manual, and so forth.  Again, MacDonald doesn’t buy the premise: you had ample opportunity to communicate with your client, subject to the privilege team process.  Even if, Nevin return-serves, OCDC had barred defense counsel, on ethical grounds, from invoking that very process?  Then you got bad ethical advice, the witness rejoins.  My staff advised me that Col. Caldwell and OCDC were wrong about the impact of the Woods order.  And, MacDonald adds, the OCDC approach---if applied by him---would have precluded a timely referral decision.  In any case, the Convening Authority’s powers are limited, MacDonald says; he couldn’t force discovery from Woods, or do other things defense counsel asked at the time.

There’s no mention of waterboarding in pre-referral advice you received as Convening Authority, is there?  No, answers MacDonald.  But don’t the rules say the advice should set out mitigation information submitted, regardless of the source?  The lawyers refer not to rule text, but to discussion comments---which, as MacDonald points out, say “should” rather than “shall.”  No mandatory rule there.  Still, Nevin is flabbergasted, whatever the legal standard.  You didn’t think 183 incidences of waterboarding were relevant to your mitigation decision?  MacDonald, not really answering, once more refers to the advice of his staff, who had greater capital case knowledge than he.  Nevin’s still lost: how can you omit torture evidence from mitigation advice?  The witness doesn’t know, and when asked, he says he didn’t seek further evidence of torture from prosecutors.

Thus ends Nevin’s examination, and the day’s substantive proceedings.  Briefly, CDR Kevin Bogucki notes that a witness relevant to his client’s emergency motion---a GTMO psychiatrist---will be interviewed this week, by arrangement with the prosecution.  And by the way, asks the lawyer, can bin Al Shibh briefly address the commission? No, rules the court, he cannot.