10/23 Motions Session #6: Reconsideration v. Compulsion

The gavel bangs.  Argument on AE164 marches forward, with J. Connell III, Ammar al-Baluchi’s attorney, leading the defense’s broadside against the prohibition on defense motions for reconsideration, with respect to redactions and substitutions to classified discovery made by prosecutors during ex parte proceedings.

He talks about FBI 302’s---or interview summaries---approximately 9,918 pages of which he has received from the prosecution in discovery. And there are roughly 13 redactions on every page, in Connell’s calculation.  Some are quite questionable: every first name is redacted, for example, as is every telephone number, address and date of birth.  Remember that the case against Connell’s client is also largely financial, the lawyer says.  Yet all 483 financial documents mentioned in the FBI summaries, and the summaries themselves, have been produced, as the defense lawyer puts it, in “obliterated redacted form.”  At the same time, the prosecution has refused to supply unredacted versions.  And that means Connell is stuck: he cannot file a motion to compel, because such a motion is tantamount to a motion to reconsider a decision to withhold certain information---which, of course, cannot be reconsidered under 949p.  So here we are.  (Connell notes a parallel motion, which he filed, which insists on prosecution compliance with commission rules regarding redaction.)  As things stand, good faith mistakes---which we’ll surely see, given the volume of this classified record---are bound to happen.  But, Connell argues, the reconsideration bar precludes a remedy for that inevitable wrong.

On behalf of the government, Lt. Kiersten Korczynski opens by disputing Connell’s account of the 302s.  Those were not provided in the course of classified discovery, but via a different mechanism.  Trial counsel pauses that thought, and now refers to Bormann’s earlier invocation of the Libby case.  Well, that one involved a former White House employee, who at one point had held a clearance (as the accused here never have, and never will).  And, she adds, the reconsideration bar applies only to the accused, not to the military judge; Judge Pohl can always take up substitution matters on his own initiative.  But how would a less than clairvoyant court know to reconsider?  Well, that’s where the defense’s power to submit material to the court, regarding its theory of the case, comes in, says the prosecutor.  But in her view, allowing motions to reconsider (and by implication, adversarial hearings on the classified documents underlying substitutions), would kill the secrecy regime established by statute.  The prosecutor also argues that no court has ever heard a motion reconsideration: it is true that Libby blessed the practice, but no such motion was ever filed in that case.   Korczinski moves on to other rulings, which have found no due process problem with the CIPA regime.  Having done so, sums up by calling the reconsideration bar entirely lawful.  And she reiterates that overturning it would effectively kill the ex parte structure set up by Congress.  Whoa, says the court: a reconsideration request doesn’t involve the defense in any reviews.  It just asks me to take a look at my earlier decision, by myself.   So where's the secrecy spill?  The prosecutor fumbles around with the inquiry, but once more returns to her larger theme: there’s nothing untoward about the statutory ban on revisiting substitution and redaction decisions.  She's done. 

Over to Bormann.  She’s confused about what the government thinks she ought to do, when redactions are at issue.  The prosecutor challenged Connell’s account, and yet she doesn’t seem to challenge the practical equivalence of a motion to compel with a prohibited motion to reconsider. It’s still the same thing, she argues.  Not so for the court: if the defense has reason to suspect that it didn’t get discovery to which it is entitled, then a motion to compel is appropriate.  But a motion to reconsider simply asks the court to take a second look, even without a reason for suspicion. Bin Attash’s lawyer also doubles down on the court’s remarks to Korczynski; simply by asking for reconsideration, the defense does not at all jump headlong into the prosecution’s classified coffers.  A bit more, and she finishes, too.

And that brings AE164 to the “ripe for decision” side of the ledger, and our afternoon to a close.  See y’all bright and early, same time, same channel.