8/21 Motions Session #8: AE018, Part Two

Audio technical difficulties apparently resolved, the commission reconvenes, with David Nevin still out front.

Of course, Nevin says, no court has said that an item is privileged simply because a lawyer marks it as such.  But the rule also cannot be that third parties get to rummage indiscriminately through materials exchanged between counsel and client, in order to determine the contours of a privilege in advance.  (Nevin tells us, as an aside, of this related absurdity: he’s tried to substantiate claims of privilege to JTF personnel before, by informing them, when asked, of his planned defense and its relationship to certain documents.  But JTF staff claimed that his defense wasn’t legitimate!)  At some point, Nevin argues, the system has to rely on the professional judgments of lawyers.

Next KSM’s lawyer talks about the so-called “privilege team” contemplated under AE018.  He has balked at this idea, as the team’s lone job seemingly is to confirm banner markings, through a quick headline review; and yet anyone can do that, Nevin claims, if the rule indeed is “if correctly marked, then treat as privileged.”  But that’s not quite all of the government’s proposal.  In addition to creating an unnecessary “privilege team,” the current draft elsewhere says, according to Nevin, that team members should strive to maintain the privilege “to the greatest extent possible.”  Unsatisfactory. He wants to tweak the draft, by making clear that the privilege will be maintained, period, whenever it applies.  The court refers, unsurprisingly, to the JTF staff’s need to screen out inappropriate stuff.  Fine, Nevin says, but can a team really do that without reviewing for content, and not just headline markings?

A few more critiques follow, one concerning contraband.  As always, Nevin argues that the draft defines key elements of his defense as “contraband,” like historical perspectives on jihad, and so forth.  Of course, KSM will want to set forth that very perspective, including the oppression of Muslims worldwide, in making his case.  Defendants always get to tell their side of the story, right?  Well, apparently not under the draft order.  Think about it: even the charge sheet in this case refers explicitly to items that would be considered contraband.  The first overt act alleged is a public declaration of jihad by Bin Laden.  And yet Nevin cannot pass on that very information to his client, in the course of preparing his defense, on contraband grounds.

The attorney says a few more words about other discrete problems posed by the would-be communications order---vexing rules for what can be taken to meetings, and others regarding non-legal mail, NGO attorney meetings with detainees, and the extent to which a detainee’s disciplinary status might affect the ability to take meetings with lawyers, among other things.  Then we pause for a brief recess.  Before it happens, Nevin emphasizes his good faith in seeking a workable communications procedure.