6/17 Motions Session #3: More from Admiral MacDonald

Our recess ends and, after some brief discussion of logistics, Ruiz’s examination ekes forward.

Still at the virtual witness "stand," MacDonald testifies further about who helped him draft his March order.  It was the handiwork, in the first instance, of Mr. Breslin, MacDonald’s subordinate; another legal advisor in the Convening Authority’s office might have taken part in its creation, too, says MacDonald.  Karen Hecker, of the DoD’s habeas group, likewise would have been involved, and the CIA likely had input on presumptive classification matters.  Where’s all this going?  That’s the thrust of a prosecution objection, which the court sustains.  Ruiz explains that, in his view, Admiral MacDonald had no authority to impinge upon the accuseds’ rights, and thus outsourced the protective order, and its encroachments on legal mail, access and other detainee rights, to JTF-GTMO.  Who was present, and worked on what, he argues, is directly relevant to such subjects.  But not relevant enough, it seems: the objection is sustained.  In any case, the witness affirms that Breslin was at the center of the draft order’s formulation, in MacDonald's office, with participation from some others.  MacDonald observes that, in light of defense objections to the issuance of a protective order by the Convening Authority, access and other issues were relegated to JTF-GTMO.

Now to another topic, mitigation, and the defense’s ability to make a minimally adequate mitigation presentation during the pre-referral process.  (Ruiz and MacDonald talked about this at length last time around, in particular the provision of uncleared experts to the defense.)  Remember, nobody could meet with clients at the time without a security clearance.  And as before, the lawyer doesn’t see how his expert could overcome the clearance hurdle, and perform the work needed to file a mitigation package, by MacDonald’s unreasonably short deadline.  The witness already testified to this, he says.  He didn’t control the clearance process, but worked with other executive branch agencies to streamline the clearance and adjudication process.  Who Ruiz selected as a mitigation expert (and that person’s background) wasn't up to MacDonald, he emphasizes. The submission of a mitigation package didn’t depend on any clearance in any case, a now-perturbed MacDonald proclaims.  Ruiz is still incredulous: thanks to MacDonald, he had only 60 days to make a mitigation case, and without the help of cleared experts.  Why the rushed timetable, Admiral MacDonald?  Why did you give the defense a resource it couldn't use? MacDonald insists that he acted reasonably, and cites the submission offered--- on time no less---by counsel for al-Baluchi.  He also observes that mitigation matters can be submitted at any time, before or after referral.  There was never any expectation the Convening Authority’s review would involve a trial-ready, complete mitigation submission, either.

Did you communicate with the White House about the mitigation submission issue?  No, says MacDonald.  The witness merely notified the DoD General Counsel and Deputy SecDef, as he was required to do; he likewise generally updated the General Counsel on Macdonald’s chosen timeline for mitigation submissions.  And MacDonald doesn’t think the General Counsel wanted the case referred quickly, in any event.  Ruiz asks about prior congressional testimony by MacDonald, in which he told legislators he could bring commission cases quickly.  So you’ve invested a lot of effort in the timely success or failure of military commissions, right?  No, MacDonald protests.  He was asked to testify in Congress, and did so---nothing more.

Admiral MacDonald, you also testified in favor of conspiracy as an offense before Congress; and you rejected the prosecutor’s recommendation to withdraw conspiracy charges in this case, too, right?  Yes on both counts.  And didn’t you testify in favor of including material support as an offense under the MCA?  Another yes.  MacDonald also advocated in favor of a particular approach to the admission of detainee statements, he explains when asked by Ruiz---including those taken under concededly coercive battlefield conditions. This would be a sliding scale, as MacDonald puts it, moving towards voluntariness as one moved away from combat.  There's a brief pause.  After it, Ruiz brings his examination to a close.

J. Connell III, a lawyer for Ammar al-Baluchi, puts a question or five to the witness.  The first concerns a March 2011 memorandum regarding MacDonald’s protective order.  MacDonald notes his concerns, at the time, about authority: he wasn’t the boss at Guantanamo, and wondered about his power to step into the JTF commander’s shoes by handing down an order that would regulate activities at the detention facility.  But the witness’s staff thought that was precisely what had taken place, in the habeas context, and told him so during discussions about the protective order.  Still, MacDonald disagreed, and thus pushed the access and other protective order issues from his lane to that of JTF-GTMO---though he can’t recall whether he also provided JTF with a copy of the memorandum mentioned by Connell.  The idea, the witness goes on, was to hear JTF’s view of MacDonald’s possible issuance of an order regulating detainee visits and the like.

Al-Baluchi’s lawyer asks about the presumptive classification provision in MacDonald’s order.  By what authority did MacDonald generate it?  The witness:  this came from what the original classification authority---You Know Who---had done.  I was bound to accept their classification determinations, and high-value detainee (HVD) information was found to be presumptively classified at the TS/SCI level by the classifying authority.   Oddly enough, the witness agrees that, under the order, presumptively classified material submitted for classification review---including detainee statements to attorneys---would not be subject to any privilege: the very act of seeking out such a review would waive the privilege.

The defense attorney wants next to ask about contraband---but the subject will have to wait.  That's because we're on lunch break for an hour.