8/20 Motions Session #2: Protect-o-Rama, Part One

We pick up with AE013, regarding the protective order---that is, with a battery of some nine motions addressing proposed modifications to the order. The task of arguing them falls mostly to J. Connell III, attorney for Ammar al-Baluchi.  He turns first to the order’s rules regarding prosecution access to defense team information (AE013DD).  As drafted, the order obligates all defense team members---both detailed counsel and others---to provide copies of executed memoranda of understanding (“MOUs”) regarding the protective order, to government counsel---in addition to security personnel. That gives prosecutors a needless and unjustified peek into the composition of the defense team, in Connell’s view---thus he proposes to amend the order’s “give a copy of the MOU to the other side” requirement.

Of course, Connell doesn’t propose to alter the MOU requirement generally, and underscores that each member of his crew has executed the documents acknowledging their obligations under the protective order.  But the lawyer just doesn’t want folks other than detailed counsel to have to publicize their execution of MOU materials to the government.  The idea, he argues, is to better safeguard information about the allocation of resources, and equality of arms: the government, after all, doesn’t have to tell the defense about the identities and makeup of its group, much less about how it spends its money in prosecuting the case.  He has no issue whatsoever about disclosing copies to security personnel and the commission as necessary.

For its part, the prosecution, in its briefs, has acceded to this request, but only so far as it concerns defense personnel who have been approved pursuant to ex parte requests.  And the prosecution, adds Lt. Kiersten Korczynski, only wants to see copies of MOUs executed by detailed counsel in the case. The military judge asks how the government might be prejudiced if this or that person hasn’t handed over a signed MOU; the lawyer answers that it is easier to know who has accepted the protective order, having a list of MOU signees on hand.  That makes for easier management of classified information, she says.

What does Connell make of that?  The court wants to know.  How can one drop off classified stuff without knowing, in advance, exactly who and who has not accepted the protective order?   The lawyer notes that these days, classified pleadings are freely exchanged, and conveyed via courier---all without the prosecution having any sort of “MOU signee” list on hand.   At any rate, Connell has no objection to designating two or three “classified material receivers,” with whom prosecutors can work.