8/21 Motions Session #4: Mulling Over More Massucco Testimony

Another series of motions to compel awaits us, this one bearing on AE031, the defense’s motion to dismiss the case for unlawful influence.

The first in the series belongs to Ruiz, and seeks testimony from LCDR Massucco---the JTF Staff Judge Advocate, who often testifies to the accuseds’ absence from court.  The witness thus has extensive contact with high value detainees.  Thus he knows about the seizure of attorney-client materials from Al-Hawsawi, Ruiz’s client.  But the prosecution resists his production, claiming that Massucco has testified about such subjects already.  That’s true, Ruiz says.  But one document was received from Al-Hawsawi’s legal bin, and Ruiz wants to ask about the incident in particular.  Ditto a book authored by Noam Chomsky, which Al-Hawsawi read.

The court wonders about the connection between the seizure, Massucco, and unlawful influence.  The ongoing invasion of attorney-client privilege is part of the unlawful influence, Ruiz seems to say.  That leaves Judge Pohl still wondering: how do events of May 2013 in the camp count as “unlawful influence” under law?  The key for Ruiz is a deliberate effort to undermine the judgment of defense counsel.  Repeated searches certainly do that, and thus meet the legal test.  The guard force, moreover, can’t search a legal bin without direction from above.  And any impediment to the formation of an attorney-client relationship naturally must bear on counsel’s judgment too, Ruiz goes on.  A final point of emphasis: Ruiz’s handwritten counsel notes, which described filed and expected motions, were seized from Al-Hawsawi.  That hasn’t been addressed in any prosecution materials, or in past witness testimony from Massucco; and that’s surely an interference with our attorney-client relationship, authorized by higher-ranking, influence-wielding officials.

Consider the factual predicate for Massucco’s testimony, argues Groharing.  The lawyer has spoken to him, and discovered that Massucco played no role in the inquiry into seizures of legal materials.  Which is to say, Massucco knows nothing more today than he did at the time of his earlier testimony.  The defense thus hasn’t articulated any basis for recalling him.