10/25 Motions Session #1: Discovery Channel

Sox and Cards gear donned, game faces on, the parties and military judge reconvene.  Lo and behold, four of the five accused are in the courtroom, the sole absentee being Mustafa Al-Hawsawi.  He is so lawfully, having knowingly and voluntarily waived his right to be present, according to prosecution witness CDR George Massucco, Staff Judge Advocate and High Value Detainee liaison.  The court credits such testimony, and our proceedings begin in earnest.

Up first is some procedural debate on AE31, the defense’s long-pending motion to dismiss for unlawful influence.  Is it ready for argument, or does the defense need more time to uncover and present evidence bearing on it?

CDR Walter Ruiz, Al-Hawsawi’s attorney, thinks the latter, and cites one more more motion to compel discovery that will need to be submitted and addressed---after today.  This, he says, bears on recent developments, the OCA button-pushing snafu, searches of detainees’ cells for unmarked books, and the like. The court: your now dusty motion, when filed in 2012, suggested unlawful influence based on public remarks by political figures; is the idea now that such influence has to do with, say, actions of Guantanamo librarians looking for books?  Truly, this is dragging on, Judge Pohl seems to say---though he leaves the motion’s pendency to the defense, which filed it in the first place.  Ruiz nevertheless defends AE31’s broadening scope, as logically connected to the legal arguments in the original pleading and the developing facts on the ground.  (His theory is that unlawful influence is reflected not merely in pre-trial statements by government officials, but also in post-indictment incidents at Guantanamo.)  That broadening, incidentally, isn’t his fault: he certainly has not caused, for example, guards to interfere with the attorney-client privilege shared between the accused and counsel.  For his part, Judge Pohl thinks AE31 to be briefed, so far as concerns the basic claim in play.  Maj. Derek Poteet, attorney for Khalid Sheikh Mohammed, rises and bolsters Ruiz’s position, by describing some outstanding, but quite important, discovery request.  A few of Poteet's colleagues  also chime in to stake out their positions, so far as concerns AE31’s ripeness, and other discovery needs.  

In the forehead of prosecutor Robert Swann, blood vessels all but pop.  Addressing the court, he wonders ruefully how a 2012 motion alleging unlawful influence, which has been supplemented so many times, can possibly not be ripe for argument, today.  Those supplements, he adds, are exquisitely irrelevant to the defense’s theory; after all, this turns largely on statements by presidents, including the long-retired President Bush.  How in the world could a librarian’s statement, this year, somehow bear on an unlawful influence claim regarding pre-indictment conduct of the government?  The delay has got to stop at some stage, he intones.

Ruiz responds briefly, still urging a bit more time.  The court expresses skepticism about this idea---and senses the prospect of additional litigation---but essentially accepts the defense lawyer’s plea.  Judge Pohl rules as follows: we’ll hear motions to compel docketed for this session. But there won’t be further argument on additional, just-now-hitting-the-clerk's-office discovery motions.  AE31 itself (and the defense’s motion for defective referral, AE08), will be up for argument in December.  No more delays after this one, in other words.  “We’ve got to get to the issues,” says the military judge.

So what about the docketed motions to compel? Only one, AE168, requires argument from counsel, J. Connell III.  His request concerns communications between the former Convening Authority, Vice Adm. Bruce MacDonald and others, regarding the 2011  “baseline review” and legal mail.  Such communications are relevant to AE08 and AE31, chiefly because of of the defense’s theory, that the Convening Authority may have been involved in the fashioning of the controversial legal mail policies.  Connell adds that prosecutors were well aware of this theory, at the time submitted the defense submitted its discovery request.  And yet prosecutors still claimed, inaccurately, that the defense had not explained it in the minimal fashion required by commission procedures.  The rules don’t require the defense to write a dissertation on relevance, argues Connell.

Prosecutor Jeffrey Groharing makes his counterpoints, beginning with the defense’s rationale: the reason for seeking this discovery was preparation for Admiral MacDonald’s testimony, last summer. The motion is thus moot.  He also disputes Connell’s claim, that the defense clearly established relevance in its request.  They didn’t, says Groharing, who quickly finishes up.