10/25 Motions Session #4: Photos and 802 Conferences

Many different motions get batted around during the pre-lunch period, but only two take up substantial argument time.  (The remainder---among other things, AE120, regarding the prosecution’s proposed changes to the charge sheet, and a discovery motion regarding the interactions of the government with the makers of Zero Dark Thirty---are either deferred until December, or will be argued this afternoon.)

As for the first, the government seemingly doesn’t object in principle to AE184, in which the defense seeks to have the accused photographed. The prosecution’s issues, says prosecutor Jeffrey Groharing, go instead to the conditions surrounding would-be photo session, and the the photographs’ dissemination to others.

One of KSM’s lawyers, Maj. Derek Poteet, justifies AE149 in light of the experience of his client, KSM, in CIA black sites---the evidence of which can be seen readily on his body.  Poteet mentions scars on KSM’s wrists; counsel need to document that and related things, in the course of preparing a defense.  As for the dispute, Poteet objects to the government’s proposal to have the detainees photographed by Combat Camera, the Defense Department’s in-house photo operation.  The attorney instead would have a different, defense-affiliated photographer take KSM’s picture---perhaps in Echo II, the Guantanamo meeting area, or in the courtroom.  Poteet wraps up after making a few more remarks.  

Groharing emphasizes the security concerns in play.  The government will have to work through those, he says, when time comes to snap the pictures of the accused.  On that point, his side believes Combat Camera is the most reasonable approach.  Mention of Combat Camera prompts a question from the judge: is there a waiver problem, if an unaligned party takes pictures?  The defense doesn’t want combat camera for that reason, Judge Pohl reckons.  But the prosecutor rejects this premise, noting that, even if the defense team takes a picture, that picture will subsequently be reviewed by a third party.  The military judge’s curiosity now changes to surprise.  The privilege review team’s examination of documents doesn’t waive privileges, Judge Pohl says---or at least he had understood as much to date.  Is Groharing suggesting otherwise?  No, explains the prosecutor; he means only to say that third parties see defense material, whether Combat Camera is involved or not.  He adds that photographic equipment must be maintained properly, so as to ensure security.   Well, the defense could get a TS-appropriate camera on its own, observes the judge.  (Bormann confirms that the defense intends to obtain an appropriate one, through channels.)  The issue, to his mind, is simple who hits the shutter button on the Nikon, so to speak.

Brief reply follows.  The use of Combat Camera, argues Poteet, is illogical from a dissemination standpoint: why widen the universe of people who will come into contact with the accused, and photos of them?  His argument comes to a close, and AE149 is submitted.

Some housekeeping, docket-shuffling talk follows.  When its done, we come to AE209, Bin Attash lawyer Cheryl Bormann’s attack on a particular, Guantanamo-specific problem: defense counsel’s inability, from time to time, to access their clients after Rule 802 conferences.  Often these happen before the day prior to the commencement of a week’s argument, or after the close of court.  But what if a Rule 802 on one day raises an issue, which counsel must discuss with her client before court the next morning?

Under ordinary circumstances---say, in Article III court---Bormann would simply visit her client in jail.  But she can’t do that at Guantanamo, given the restrictions on access to the accused.  For his part, Judge Pohl says he doesn’t want to delve generally into the effects of 802 conferences.  Instead, he prefers to address the issue on a case-by-case basis. Thus he suggests that any access issued posed by a particular, Sunday 802 conference might, for example, be resolved by delaying a Monday hearing.  Bin Attash’s attorney has no problem with that idea, but she underscores: I need regular access, in order to do my job.