6/18 Motions Session #2: On Defense Access to ICRC Reports

Our marching orders adjusted for technical reasons, we turn to AE13GG---a dispute over the protective order, and the confidentiality of reports belonging to the International Committee for the Red Cross (ICRC).  The latter, who seek to intervene (AE108K) in the case and preclude the defense’s discovery of the reports, is represented by a private lawyer, Matthew MacLean.

For him, the question is whether the government must respect the ICRC’s privilege of non-disclosure under international law.  The ICRC is neutral and independent, he says, and plays a unique role in the Geneva Conventions scheme.  And if ICRC reporting is disclosed, then strict, confidential dialogue will be destroyed.  Tank that, and you tank the ICRC’s mission to ensure compliance with international humanitarian law, according to MacLean.  The United States, he adds, agrees that ICRC confidentiality is paramount---as illustrated by declarations from William Lietzau, which is appended to MacLean’s submission.

And the authority for his client’s intervention?  MacLean says that under RMC 501, “any party” may claim a privilege required by law---meaning third parties like the ICRC, and meaning international law.  The court: is the privilege absolute?  MacLean: yes, per the ICTY, among other international tribunals.  But no domestic tribunals?  No, answers the attorney, but our courts do call, uniformly, for specific instructions from the political branches, before customary international law can be disobeyed.  And customary international law leaves the privilege in the ICRC’s hands.  That’s weird, to Judge Pohl---what if an ICRC report contained Brady material?  Well, Brady was about prosecutors’ obligations, says MacLean, not the discovery of all information held by any party.  Under law, some privileged materials simply cannot be accessed by prosecution or defense; that’s true in this and all cases.  Then, an offer: MacLean says his client will consult with the defense about limited waivers of its privilege, as appropriate.  The court wonders about waiver.  The lawyer addresses the concern by reiterating that the privilege belongs to his client and his client alone; it reserves the right to disclose on an ad hoc basis.  A final word about the protective order: in the FOIA setting, the D.C. Circuit has urged parties to seek good-faith waivers of foreign privileges.  So tread lightly, your honor: should you decide---despite our arguments---to order disclosure, then subject ICRC discovery to a protective order.

On behalf of Mustafa al-Hawsawi, defense lawyer CDR Walter Ruiz stands and opposes the ICRC’s view.  Sure, the ICRC’s mission is both valuable and well-known.  But this group has important information---potentially mitigating and even exculpatory---and the defense thus really, really needs it.  Regarding Rule 501, Ruiz says, there is no district court or federal court case recognizing a privilege along the lines MacLean described.  And our domestic common law is what matters under Rule 501---whatever the status of the non-disclosure privilege under international law.  Judge Pohl asks about U.S. case law, which, Ruiz concedes, hasn’t ever rejected the ICRC’s position here.  To do so here would mark a first, says the lawyer.  But given the congressional intent, evident in Rule 501, ordering discovery seems the proper course nonetheless.  And, Ruiz continues, this a capital case, and the stakes thus weigh in favor of disclosure.  Finally he does some distinguishing: this request isn’t about testimony, as the ICRC suggested in his brief, but instead about documents; and there’s no “classified” information problem in play, either, but simply sensitive stuff generated by an international organization.  Ruiz sits.

The defense streams here diverge: J. Connell III, Al-Baluchi’s lawyer, thinks ICRC materials should be disclosed pursuant to a protective order.  Thus, he says, he agrees more with MacLean’s views of international law, and strays from Ruiz’s views about domestic law.

The question is not whether there is a privilege (there is) but who is covered. The Defense Department regularly receives ICRC communications. And---guess what---all defense counsel work for DOD, and are thus covered by DOD policies, which call for ICRC stuff to be treated as if it were classified. Finally, it seems unfair, in Connell’s view, for the ICRC to select certain DOD officers as qualified to read its reporting, and to reject others.  Thus he proposes disclosure to defense counsel, with a protective order fix.  Problem solved!  Or maybe not: Judge Pohl’s raises some brass tacks concerns about his legal authority to handle ICRC reports, during trial.  Under what authority allow for the presentation of ICRC evidence?  Court and counsel bat this ball around before Connell sits---the lawyer’s view being that, in essence, the court can handle ICRC materials as he would classified ones, and apply Rule 505, 506, and 806, as appropriate.

Some brief input from KSM lawyer David Nevin: this, he says, is a death case, and that surely means more favorable procedures for the defense.  The settled rule trumps any sort of international-law founded confidentiality.  No disrespect to the ICRC, says Nevin, who recognizes the vitality of the group’s mission---but still doubts the balance of interests seemingly struck by MacLean during his presentation.  The prospect of an execution---without full disclosure of mitigating evidence---would shock a foreign government as much as, if not more than, the handing over of ICRC materials.  A bit more after this, and Nevin is done.

Cheryl Bormann sees a workaround here: there’s no absolute privilege, and disclosure is possible, she says.  She also adopts Nevin’s “death is different” claim, before emphasizing: ICRC discovery is the only way to get at some key, first-person accounts by her client, Bin Attash.  The ICRC began interviewing him, she notes, as far back as 2008.

The Chief Prosecutor Brig. Gen. Mark Martins rises and opposes the defense motions across the board.  Do you agree that the ICRC’s privilege is absolute under US law?  The “generally recognized” phrase in Rule 501 gives us pause, Martins says; we’re not so sure that there’s wholesale incorporation of customary international law here. But the Chief Prosecutor nevertheless agrees that disclosure would have bad, bad effects on the ICRC’s mission.  Thus Martins asks Judge Pohl not to issue any ruling for four weeks from this day, in order to enable consultations between the ICRC and the defense.  In the meantime, Martins commends the ACLU FOIA action to the court as a relevant precedent, so far as foreign government communications go.  Judge Pohl wrestles with the relationship between FOIA exemptions and discovery in a capital case.  He’s concerned about selective waiver, too---why does the ICRC get to pick and choose among acceptable Defense Department recipients for its reports?  Martins doesn’t quite get to his answer, as he is already busy emphasizing another, nuts-and-bolts point: his crew doesn’t intend to use any information from ICRC sources in its case.  When the military judge presses, Martins cites his proposed, voluntary process; the lawyer still wants to wait and see, before, say, committing to any firm position about the interaction of Brady-esque principles and the ICRC’s privilege.

MacLean presents reply argument, beginning with Rule 501.  He squints hard at the provision’s language, which sets forth no basis for precluding the ICRC’s privilege.  The rule doesn’t say “a federal court opinion must recognize a privilege;” instead it talks about “principles of common law,” And the principle here, MacLean urges, is that the political branches presume---insist upon---compliance with international law unless a statute clearly says otherwise.  What other rule allows a holder to selectively waive a privilege, asks the military judge.  The rule is usually “waiver as to some means waiver as to all.”  No, MacLean qualifies the judge’s remarks; a disclosure of one attorney-client communication, for example, does not always mean waiver of all such communications, full-stop.  This prompts a further discussion of policy.  In the court’s view, selective disclosure can’t really be squared with MacLean’s earlier insistence that any disclosure would undercut his client’s mission.  You’re already doing some disclosing, to some people.  Judge Pohl next wonders why the receiver of ICRC information---the ICRC---should have final decision on the disclosure of information provided by, for example, a detaining power or a detainee.

The lawyer underscores the ICRC’s mission: we are trying to promote compliance with international law here, and that will call for a mix, i.e. disclosure in some instances, and confidentiality in others.  It’s a judgment call, made on a case-by-case basis.  In that regard, MacLean concedes the “privilege” notion is not quite a perfect fit for his argument.  Still, he urges, confidential dialogues simply won’t happen if the ICRC isn’t neutral and perceived as such---and we won’t be either if disclosure is ultimately ordered by the court.  The game turns entirely, in MacLean’s view, on his client’s estimation about when a handover is appropriate.  Another thing: you can ignore all of that stuff about DOD policies, that J. Connell III touted.  The source of the privilege is not DOD regulations, but, again, international law.  ICRC materials are given to particular persons, who are bound not to discuss or divulge them, period.  Remember, here, on such person in the U.S. government---William Lietzau---opposes discovery of ICRC materials.

MacLean concludes by addressing a few of the other parties’ points, in order: on the notion of disclosure-subject-to-protection, that has been rejected by international courts; on the prosecution’s “pause for dialogue” approach, that is acceptable to MacLean.  He winds up.