10/25 Motions Session #5: On the Raising of Al-Qaeda Cash

We’re back from lunch.  How shall we proceed? The Chief Prosecutor, Brig. Gen. Mark Martins, proposes beginning with a motion to compel, AE167, before moving on to, among other things, argument on AE120.  Defense lawyer J. Connell III sees a better path, apparently; he observes that a Rule 505 conference would, if held, allow the parties to address seven motions in all.   The defense lawyer adds that an aspect of AE167 might well implicate classified material, too and thus also require a Rule 505 discussion.  Solomonic wisdom informs a ruling from the bench: the military judge says we’ll do AE167, per the prosecution's suggestion, but put off at least AE120 until next session.

With AE167, Connell seeks the complete, unredacted versions of four CIA reports about the financial structure of Al-Qaeda.  There are redacted, public copies; thus he can identify them in open court.  But the chopped-up, redacted stuff won’t do, for the case against Connell’s client, Al-Baluchi, is mostly financial in nature.  Who was involved in transferring what money in Al-Qaeda, argues Connell, is critical.  Accordingly, he says he doesn’t understand the prosecution’s claim, that the reports in question are not discoverable, simply because they don’t mention the five accused in particular.  In building a defense, he obviously must understand Al-Qaeda’s financial ecosystem, for the period in question.  And that means getting his hands on all four items.  Connell winds up, and all defense counsel join in his bid to dig up the money dirt.

Speaking through Jeffrey Groharing, the United States reiterates that three of these reports have nothing to do with these defendants.  (There’s no argument as to a fourth document; however, prosecutors will turn it over only have counsel have executed a Memorandum of Understanding, regarding the case’s protective order.  Thus far, only Al-Baluchi's lawyers have done that.)  The documents say nothing specifically about the 9/11 attacks; instead, they merely outline fundraising mechanisms once employed by Bin Laden.  Connell's client, Al-Baluchi, is moreover not alleged to have done financial things in this case.  No, Groharing argues, our claim is that Connell’s client simply passed on cash to the 9/11 hijackers. But the United States has not charged that Al-Baluchi, or any other accused, was a “financier.”  The five were finance facilitators---and that's a distinction with a difference, so far as concerns Connell's discovery request.  Groharing lastly makes clear that the military judge remains free to review the documents, as necessary.

Judge Pohl reserves ruling as to the three disputed financial reports; as to the fourth, he’ll put that one on the back burner, pending resolution of protective order matters.