6/19 Motions Session #4: The MCA 2009 and Congress's Intent

Our proceedings resume, and all wonder: do the machines work? They may soon, as the commission gives the technical folks until 1300 to resolve any outstanding issues. We’ll thus work on some other odds and ends, between now and lunch.

One such odd and end concerns FBI agents. This issue is complex, but in short, CDR Walter Ruiz wants to explore the government’s claim that FBI officials long ago interviewed his client in English. That assertion was itself intended to rebut the suggestion of a lack of needed resources during the pre-referral phase: if Al-Hawsawi spoke English, the argument goes, then he didn’t need a qualified translator to assist him---and the Convening Authority wouldn’t have erred in denying him one, either. Now the lawyer wants an assessment of precisely what Al-Hawsawi’s language ability really is. The court clarifies: prosecutors don’t want to turn over statements by the accused, in light of the protective order---which Ruiz hasn’t signed? Right, says Clay Trivett, but he also disputes the relevance of these statements to Ruiz’s request in any event. Judge Pohl has in mind Rule 304(c)(1): it obligates the government to turn over---prior to arraignment---all statements of the accused. Aren’t we past arraignment? The prosecutor can’t go into this in open session, he says; he adds that counsel---Ruiz---has not yet signed the memorandum of understanding under the case’s protective order. But that isn’t what you said in your pleadings, Judge Pohl probes. Ruiz doesn’t recall any sort of “it’s classified” objection in the papers, either, and wonders about the protective order’s relevance. He’s cleared counsel, after all.

Mention of secrecy, and the protective order, together bring us to AE136---the prosecution’s memorandum of law regarding the accuseds’ presence during closed proceedings.

Prosecutor Johanna Baltes describes the government’s view---which touches on exclusion, on a case-by-case basis, from interlocutory proceedings only. (Trial is a different matter.) There’s a lot of law recognizing the executive’s authority to determine who does and does not get access to classified material, she says. To the extent that the accused wishes to testify on classified material, Baltes reminds the court, well, they have been exposed to classified sources and methods surrounding the rendition, detention and interrogation program. The court: if an accused testifies about those still-classified subjects, he can be present for that in closed session? Yep, Baltes affirms, as to interlocutory matters. Of course the tougher question is whether _other_ accused would be be present too. When would that be possible? Wrestling with this, Baltes refers to Rules 505(g) and (h). We could litigate the issue, while also examining it from the standpoint of joint trial principles, which are always in play. The 505(h) will do a lot of work here, by establishing use and relevance. The prosecutor then trots through some case law---Marzook and other cases---which rejected constitutional challenges to exclusion from suppression hearings. And true, Hamdan had criticized the exclusion of the accused from military-order era commissions---but the exclusion provision there involved trial, not interlocutory matters, like those at issue here.

Al-Baluchi’s lawyer, J. Connell III, disagrees. Congress gave detainees a personal right to be present during all phases of the case---give or take exceptions for exclusion for deliberations by a panel, closure to the public (not the accused) for national security, or physical disruption. All this makes sense in light of Hamdan. Ok, so you think the accused has a statutory right to attend closed discussions, Judge Pohl observes. How does that square with the prohibition on giving classified information to uncleared people? Connell thinks that, in fact, an accused sometimes can be authorized to receive classified material---like when the information came from the accused in the first place. And in the MCA 2009, Congress seemed to authorize broad sharing, given the accused’s statutory right to attend all proceedings. The court is profoundly skeptical of the suggestion that military commission defendants hold greater procedural rights than defendants in civilian courts. What about the cases Baltes cited, like In Re Terrorist Bombings? Well, the Second Circuit erred there, answers Connell. And Hamdan is the most relevant precedent, which Congress had in mind when it drafted the MCA. The Supreme Court there was obviously concerned with the accused’s being kept out of proceedings, and cited Article 36 of the UCMJ. And guess what? Language was from Article 36 was incorporated into the MCA, Connell argues. It’s a plain text reading, your honor.

David Nevin adopts Connell’s arguments, and strenuously objects to his client’s exclusion from closed proceedings. He adds that authorization to attend such proceedings derives in part from the capital nature of the case. Bin Attash’s Learned Counsel, Cheryl Bormann, doubles down on Connell’s claims, too. The idea behind the MCA was to vest these proceedings with more legitimacy, not less; the statute means what it says, and it says that detainees get to be present, period. The court again asks if this means all accused can be present during closed sessions, whether the classified evidence is put forth by defense or prosecution. Bormann thinks they can, while emphasizing that relevance and materiality obviously will limit the use of classified evidence. That’s a boon to prosecutors. She sits.

Johanna Baltes rises briefly to discuss the differences between the issues in Hamdan and in this case. The famed Supreme Court decision is completely inapposite, given what we have here: a purely interlocutory matter. Moreover, the MCA 2009 must be considered in its entirety. To interpret one provision standing alone, as the defense suggests, would be to permit disclosure of classified information to the accused----and to anyone else who is not cleared. She lists a number of other cases to support the government’s argument, and then concludes with an appeal to reason: Congress simply didn’t intend to drop a bunch of highly sensitive national security secrets into the laps of accused war criminals.

J. Connell offers an example what is considered in interlocutory matters---a motion to exclude the FBI’s report on his client’s statement to an FBI agent---how can my client not be present for that conversation? Cross-examination will be impaired, if his client is not in the room.

David Nevin wants his client present when they discuss his torture. If it’s relevant and material to the defense of a capital case, he must be present. And, he insists, the government can opt to avoid information strictures by not prosecuting the case capital---a move that, in the court’s view, might well be its own form of graymail. (Judge Pohl nevertheless accepts that a capital charge entails special costs.) Bormann adds a few words more, on the great relevance of RDI information to coming suppression motions regarding detainee statements, and the argument comes to a close.

AE136 is under advisement. And we’re breaking for lunch.