1/29 Hearing #7: Hurry Up With That Pleadings Review Already

AE55 is up next. In it, the defense jointly seeks the release of redacted versions of pleadings containing classified materials.

J. Connell III, lawyer for Ammar al-Baluchi, argues in support of the motion, citing RTMC 19-4---which calls for public release of redacted documents, after DoD security has completed its usually-but-not-always fifteen day security review. “Not always:” Connell refers to a slide, illustrating, first, the universe of pleadings that have been filed but not yet released in redacted form; and, second, the time elapsed since the pleadings’ filing. There’s a good range. One paper has been undergoing security review for 172 days. And that’s just not good enough, given the transparency issues at stake---though Connell emphasizes that he’s not just complaining about bureaucracy’s slow pace. It’s one thing to grind slowly, but quite another to grind utterly and completely to a halt. The issue is not merely one of paperwork, says Connell. The public has First Amendment rights of access, and the accused’s rights are also burdened by secrecy rules---notice and so on---which relax just as soon as a redacted pleading officially has been released to the world. He sits.

Walid bin Attash’s new lawyer, LCDR James Hatcher, stands. He emphasizes his pride: he is proud of being a defense lawyer in the American justice system. Part of that system, as he’s explained to juries, is transparency---it is of paramount importance. The Executive Order cited in defense papers, Hatcher argues, talks about the commitment to open government, through (among other things) the accurate application of classification rules. And remember mc.mil, the commissions’ website? The motto is “fairness, transparency, justice.” You couldn’t blame a cynic for---given the security review lag---for thinking it mere window dressing. The delay in processing builds delays, he says.

There isn’t much daylight between the prosecutors and defense here, says LT Kiersten Korcynzksi. She observes that not all pleadings are subject to the regulation under discussion here---completely classified ones. Judge Pohl agrees, but says that’s beside the point; the issue here is unclassified filings, which contained classified information and which thus needed redaction. The regulation is straightforward, he says. Why haven’t these pleadings been redacted? Or, more importantly, why can’t it be done in the future? The prosecutor recommends the filing of unclassified pleadings---which might contain classified information---in camera, and under seal. That’s the by-the-book approach, which the parties haven’t scrupulously observed heretofore. Documents filed that way get immediate review by the military judge, who may decide that the documents cannot be released under any conditions---all without ever turning the document over to security review, and causing a needless delay. She adds that the government may choose to note the redaction of a voluminous document on a single page, rather than, say, submitting a 275-page attachment consisting only of blacked-out pages.

Easy ruling for Judge Pohl: he asks everyone to follow the rules. AE55, to release redacted pleadings, thus is granted, to the extent that the motion calls for compliance with regulations governing the redaction and release of unclassified filings. Ruiz rises to talk housekeeping about filing procedures, in light of the court’s order. (He has in mind a motion that may be filed later today.) With that flagged, we move on---to AE93.