10/23 Motions Session #5: On the Reconsideration Bar, and Other Things

Our recess ends; the afternoon’s secrecy-stravaganza resumes.  Now loose ends are tied, as defense counsel debate whether AE73-related motions, which were only moments ago submitted for resolution by the court, likewise moot a related defense motion, AE156.  Do they?  Nevin thinks so, but defers to his colleagues.

One is Cheryl Bormann, who complains about the rules of the secrecy road, as laid down by the judge earlier.  In short, these allow her and co-counsel to submit any information to the court (including theories of defenses), which might assist Judge Pohl in evaluating prosecutors’ decision to withhold, summarize or substitute certain classified discovery.  Think about this, Bormann says: we have to submit a theory of the case which might well change if, say, conspiracy is knocked out of the case as an offense.  This doesn’t impress the judge much; Bormann can always make supplements as needed afterwards, he says.  At any rate, the colloquy brings the judge to conclude that no further discussion is called for, with regard to AE156.

Next up?  AE164.  It challenges a statutory bar to defense motions to reconsider, so far as concerns the prosecution’s authority to summarize, substitute, or withhold access to certain classified discovery under 949p(4)(c) and related rules.  It’s a Cheryl Bormann show, much as before. Bin Attash’s counsel thinks the “no reconsideration” approach is contrary to the Fifth Amendment’s due process clause, and contrary to international law.

Due process: we know what this means, given D.C. Circuit case law.  Bormann has in mind the Libby case.  Defense counsel there complained that they could not challenge CIPA reviews without first seeing the material in question.  Thus the court permitted Libby, after the fact, to seek reconsideration of the court’s CIPA determinations, as appropriate.  The reason?  Well, to pass constitutional snuff, as Bormann puts it.  She then refers to other cases which roughly track the Libby analysis.  At the same time, Bormann argues, no case holds that a bar to reconsideration is compliant with due process.  No statute takes the same tack, either, Bormann tells the court when it inquires. When legislation undermines the fairness of a judicial proceeding, she continues, that violates Due Process.  But that’s precisely what happens under the MCA: the prosecution passes summaries and substitutions to the military judge, and once the judge adopts them, the defense can’t protest.

The military judge asks about practical concerns, like those at play in the Jin case---which both prosecution and defense cited.  There, a witness’s testimony suggested inadequacies in discovery substitutions which had been furnished to the defense---but the testimony prompted the trial judge to allow defense counsel to revisit the substitutions’ adequacy.  Well, how does Bormann envision that playing out here?  She doesn’t, given the statutory bar attacked in her motion.   Bormann adds that, if an initial discovery determination doesn’t account for subsequent testimony, then Bormann has no way to raise the witness impeachment problem until after the testimony is done.  Seemingly, Judge Pohl sees little “there” there, given that the prosecution withholds impeachment material at its peril, as he explains to defense counsel.  A bit more, and Bormann returns to counsel table.

There’s a pause.  It seems we’ll break until 4:30.