8/19 Motions Session #5: Em, Oh, You

Recess is over, and the parties and court resume discussion of the Memorandum of Understanding (“MOU”) regarding rules imposed by the case’s protective order---and the refusal, by defense counsel for four of the accused, to sign the MOU.  It’s a big deal, as the latter’s execution is a precondition to the handover of any classified discovery in the case.  And it is teed up here by a series (AE13 et seq.) of motions regarding what the protective order really means.

That’s the topic for KSM attorney David Nevin.  Under the Supreme Court’s decision in Langford v. Idaho, he says, capital defense counsel are entitled to know potentially outcome-determinative information, in advance.  But they still aren’t clear about whether Langford’s principles will be honored under the protective order as entered.  A fatigued Judge Pohl still just doesn’t follow: even after the prosecution asked for their own protective order, the court came up with its own draft protective order, sought comments on it, and then ruled; now the defense has sought again to modify it.  Given all this, how long can Nevin keep litigating the issue of what the order does and doesn’t require?  Well, until the rules are finally set, the lawyer answers in so many words.  The military judge bristles.  So the defense simply can decide not to accept court rulings as final?  For Nevin, it comes down to this: the MOU obligates the lawyer to accept the protective order, in all circumstances---whatever the consequences for his client.  That’s simply unacceptable.

Judge Pohl renews a question from earlier: you can’t disclose classified material to your client already.  Why should it matter, then, that the MOU and protective order would reaffirm the non-disclosure rule?  Nevin answers by citing a possible waiver of KSM’s right to learn case-critical information, on the one hand, and compliance with procedures contemplated under the protective order, on the other. He’s hamstrung--though not so much as to prevent him from offering some guidance to the court about a way forward.  Resolution of the pending protective order challenges, including those regarding the Convention Against Torture (CAT), could help defense counsel push on, he says.

Cheryl Bormann adopts Nevin’s claims in full, and adds a few critiques of her own.  There are two broad kinds of defects in the protective order, she says, one legal and the other ethical.  First the legal: in Al-Nashiri, this court proclaimed that the government has a preexisting duty not to monitor attorney-client communications;  thus the court refused to enjoin JTF personnel from engaging in future monitoring, on superfluity grounds.  Well, the same holds true of counsel’s duty of non-disclosure here, Bormann argues.  If we can’t divulge secret stuff to non-cleared personnel, then the MOU’s non-disclosure language is superfluous to boot.  And yet we must sign the MOU to obtain classified discovery.  The lawyer adds, provocatively, that OCA officials have notified Bormann and company of possible inconsistencies between their guidance and the court’s protective order---and further insisted that OCA rules should prevail in the event of a conflict.  (Asked by the military judge, prosecutor Johanna Baltes---the government’s secrecy expert---responds that she isn’t aware of any such inconsistency.)

Another eyebrow-raiser: security officials also advised Bormann that, despite the prosecution’s own disavowal of the practice (and the protective order’s express language), presumptive classification is still very much de rigeur for defense counsel.  Thus, what Bormann’s client had for lunch must still be handled as a classified fact--and that’s a problem for the defense lawyer.  But not for Judge Pohl, who asks whether compliance with the protective order would shield counsel from any sanction.  It would, Baltes says, before adding that there shouldn’t be any conflict between what the OCA says and the court’s rulings.  Perhaps there’s been a communication breakdown of sorts, during the intervening months.

So much for the legal flaws in the protective order.  There are ethical flaws that go along with them, too.  Bormann can’t go into detail about that category here, other than to tell the court that resolution of several pending protective order motions is exceedingly urgent.  A decision on those---including the motion regarding the Convention Against Torture, seemingly---will permit the attorney to make a rational decision, apparently about what her ethical obligations require vis-à-vis her client, Bin Attash.  After this, James Harrington, bin Al-Shibh’s lawyer, adds a few brief words. Like Bormann, Harrington underscores that prompt resolution of AE013 motions is paramount. Now to Al-Baluchi’s civilian attorney, James Connell III---who, along with co-counsel, has executed the MOU.  It doesn’t seem that he advanced his case greatly, in doing so: Connell and another Al-Baluchi attorney, Lt. Col. Sterling Thomas, signed on to the MOU for the very purpose of receiving classified discovery, but they still haven’t gotten their hands on anything of substance.  Indeed, the sum total of newly furnished, classified discovery amounts to about 411 words of heretofore unknown material, regarding JTF-GTMO memoranda about the baseline review and other topics.  That’s some pretty weak tea, the lawyer seems to argue.  Not so for prosecutor Johanna Baltes.  She notes the recent battery of motions regarding the protective order, including that filed by Ruiz only last Friday.  These make for a self-refreshing process of litigation and delay.  As for Connell’s less-than-illuminating 411 words, well, Baltes agrees with the court’s suggestion that the already-reviewed universe of classified discovery is far bigger than then not-yet-reviewed.  And litigation over AE073 and AE156, moreover, prevents further review.  It’s a standstill, sure, but the standstill isn’t the government’s fault.

Bin Attash isn’t feeling well, and desires another break.  It seems we’ll go to lunch.  Before we do, the court recalls Al-Hawsawi’s request to absent himself later today.  This prompts a waiver colloquy, and the accused’s affirmation that, yes, he knowingly and intelligently will skip the afternoon’s session.

Gavel bang.  See you at 1400.