6/16 Session #4: Reply Argument on FBI Investigations

We’ll hear reply argument now, on the defense's filings in the AE292 series----which arise because of past FBI interviews of defense team personnel, and which ask the court to abate the proceedings and allow discovery into possible conflicts of interest. Up first is James Connell III, lawyer for Ammar al-Baluchi, with three points. Point One: the government’s claim, that there “is” no investigation, is heavily fact-dependent, according to Connell.  The government would have had to acknowledge an ongoing investigation earlier, when the defense filed its emergency papers; only because of delay have the FBI investigations in question purportedly closed.  So what’s the relevant timeframe for analysis?  Connell thinks it is February through May---when a conflict, to his eye, undeniably existed. Point Two: the government, in support of its position, doesn’t account for the different rules governing pre- and post-conviction conflicts.  The Special Review Team relies heavily on the rules governing the latter, but we’re concerned here with the former.  The court wonders whether Connell could actually engage in discovery litigation, given Campoamor-Sanchez’s remarks earlier (if there's a conflict now, can counsel participate anyway?); but Connell thinks so, given that the inquiry into the conflict’s existence is still ongoing.   That's in keeping with the relevant case law; Campoamor-Sanchez would have the court declare the existence of a conflict first, and then bar counsel from participation thereafter until waiver; but the relevant cases call for a factual inquiry first, by current counsel, and conflict decisions (and any potential exclusion of conflicted attorneys or waivers) afterwards, as needed.  And independent counsel can step in to litigate any issues during the latter phase, says Connell. When asked, Connell again doubts the Special Review Team’s claim that no investigation is ongoing; instead the government only has said that the FBI has shuttered its preliminary inquiry.  Judge Pohl seemingly sees little in the distinction, and soon moves on to the question of what to do, now, if in fact no conflict exists. Connell eventually agrees that his side would then be without a remedy, for constitutional purposes---though the defense would still have independent ethical obligations to advise clients about their rights to conflict-free counsel, and the need to waive any conflicts as found by the attorneys, whether present or past.  Connell then wraps up with Point Three: conflict does not mean “mandatory discharge, “ or “withdrawal,” as the government (and even Nevin) seemingly suggested.  Again, there’s a process in play, which Connell asks the court to employ: inquire first, and then determine conflicts later. Connell sits and KSM lawyer David Nevin stands.  First he responds to Campoamor-Sanchez’s suggestion that no conflict exists for the bureaucratic reason that military commissions can’t try civilian defense lawyers.  (The cited cases involved a single prosecutor, investigating defense counsel while also trying to send the defense lawyer's client to jail.) That's quite a red herring, argues Nevin, given that the United States is functionally opposed to his side, and that all of its prosecutorial elements essentially intertwined in any event. Then there’s Campoamor-Sanchez's “you-say-you-have-a-conflict-thus-you-can’t-litigate” argument, and the “you-say-you’re-chilled-by-a-conflict-but-are-zealously-litigating-argument---both of which Nevin bats down as irrelevant.  By law, the commission always must inquire into a conflict’s possible existence, and can accordingly deputize Nevin or whoever else in order to uncover any needed facts.  Finally, Nevin joins in Connell’s skepticism of the Special Review Team’s representation about the closure of the FBI’s preliminary inquiry: that’s not enough, under applicable case law.  The latter, says the attorney, is triggered not merely when an investigation is ongoing, but also when defense counsel reasonably fears reprisal. Both are true in this exceedingly unique case, Nevin argues.  For his part, Judge Pohl is confused: he isn’t clear on how he can order discovery into the fact that there’s no FBI investigation ongoing. One cannot prove a negative, after all. Nevin replies as before, with an urgent call for greater scrutiny of the government’s investigations of the defense. Next up is Cheryl Bormann, Walid Bin Attash’s Learned Counsel. Like Nevin, she sees Campoamor-Sanchez’s bureaucracy-based argument----that the FBI was inquiring into security breaches, but that the prosecution was inquiring into the guilt of the accused for war crimes, thus precluding a conflict---to be quite unfounded. Ditto his claim that the conflict issue was raised by the defense in order to manufacture an error for appellate review. Bormann wonders aloud: how could protection of the attorney-client privilege amount to error? Then there’s Jim Harrington. Ramzi Binalshibh’s attorney underscores the potential for conflict. He must advise his client about this as much as an actual conflict, and yet he doesn’t yet have needed information to do that. Harrington is also greatly skeptical of the notion that the FBI’s inquiry here was narrowly tailored, and consisted only of questions directed at specific defense personnel. Al-Hawsawi’s attorney forgoes reply argument. The Special Review Team’s lead lawyer says a sur-rebuttal word or three, beginning with the United States’ interest, shared with the defense, of ensuring that all five accused have conflict-free counsel. Next up is case law: Fernando Campoamor-Sanchez says he has it right, and the defense has it wrong. But the lawyer accepts that, if facts not provided to the defense (but to the court) prove necessary to the determination of a conflict’s existence, then independent counsel should be appointed. The court is thus confused: why give me more information than you needed to established the threshold issue of a conflict at all?  Court and counsel then debate the logic behind filing both open and ex parte materials; eventually Campoamor-Sanchez reiterates: the government’s public filings furnish adequate evidence to show that, in fact, there’s no conflict in play. Again, he says, all the defense can claim here is fear.  And such a claim, in the face of contrary evidence, is inadequate. The last word belongs to Nevin, who points out that the very case cited by Campoamor-Sanchez, La Fuente, affirms that a lawyer’s well-founded fear of prosecution is, indeed, sufficient to create a conflict problem. The AE292 series is thus submitted for consideration---and our mini-session, it seems, concludes early.  After some housekeeping, the court brings the proceedings to a close.