6/18 Motions Session #3: Bormann to MacDonald: How Have You Bin Attash?

Having defrosted outside for a spell, we return from lunch.  Lo and behold, the video hookup has been repaired.  Thus our marching orders are re-jiggered a bit---and we proceed, not with further debate on ICRC matters, but instead with testimony from Admiral MacDonald, who was until recently the Convening Authority.  (By way of reminder, his testimony is sought in connection with, among other things, defense motions to dismiss for defective referral and unlawful influence.)

Bin Attash’s lawyer, Cheryl Bormann, returns to continue questioning MacDonald, regarding his past contacts with the prosecution. A refresher on the timeline: Bormann notes Brig. Gen. Martins’ appointment, and MacDonald’s decision to refer charges, and then asks when he first met with the prosecution team.  MacDonald answers that his memory is a bit fuzzy with regards to post-referral conversations, with the exception of ex parte filings. He remembers some talks with prosecutors about those, he says. Bormann then returns to the preparation for MacDonald’s testimony, in which prosecutors participated.  After a strained back and forth due to the delays in the VTC connection, Bormann draws some fine distinctions: did the witness communicate---by any means---with members of the prosecution at any time between the last hearings in February and this week? Indeed, MacDonald confirms that included in those communications were discussions about the content of his testimony.  During these, MacDonald explains, it came to light that the witness incorrectly had concluded, during prior proceedings,that the defense wanted him to provide a deposition, rather than just an interview. Prosecutors made that error clear in their pre-testimony chats with him.

The lawyer’s next topic is 949j of the MCA 2009, and its provisions for the production of witnesses.  The accused gets a “reasonable opportunity” to obtain witnesses; and, the rule says, the opportunity must be comparable to the provisions for witness production in Article III courts.  We can see where the lawyer is going: how much did MacDonald understand about this rule, given his resolution of defense resource requests?  He doesn’t control funding, MacDonald insists; instead, he can ask for assignments only to OCDC.  Bormann pivots: what about mitigation submissions?  We needed evidence to develop those, but---despite the statute---the Convening Authority denied requests for pre-referral discovery.  (Bormann outlines this position this after the prosecution objects---and Judge Pohl sustains.)

Or take the ABA capital case guidelines.  As he noted yesterday, MacDonald has only read such guidelines as have been cited in pleadings.  One, ABA 10.7, involves counsel’s duty to investigate thoroughly.  MacDonald thinks Learned Counsel could discharge this duty, during pre-referral; Bormann thinks otherwise, given that her mitigation specialist had insufficient time to explore issues mentioned in the guidelines (medical history and so forth).  She probes MacDonald’s understanding, asking whether certain categories of evidence would count as mitigating---pre-trial punishment, and torture, for example?  Sure, MacDonald answers.

A few more lines of questioning, on the slowdown in the clearance process (MacDonald again says he sought to make things move as quickly as possible, but didn’t control the process); presumptive classification of detainee statements under MacDonald’s draft order (a delay in clearance adjudication, the witness admits, precluded Bormann from meeting with Bin Attash during at least some of pre-referral); de-activations of personnel on the Bin Attash defense team (MacDonald refused to restore a departing paralegal to the team, but stresses that he doesn’t control assignments in OCDC, and cannot order assignments); what this all meant for mitigation deadlines set by the witness (overall, MacDonald thinks that his timetable---submission within 60 days of clearance---allowed counsel sufficient time to prepare a mitigation submission); and the so called “baseline review” (the witness received correspondence about the seizure of material from legal bins, and was concerned.  Thus he directed his staff to inquire with JTF about the matter.  The latter assured MacDonald that it would comply with a remedial order entered in Al-Nashiri---though Bormann cites evidence to the contrary, including notices she sent to MacDonald about subsequent breaches of the order and requests for his help.)

The foregoing brings Bormann to her punchline: MacDonald could have urged adoption of a new rule regarding pre-referral matters, one that would better conform to 949j’s “comparable to” requirement and vest him with greater power to help the defense---but he didn’t.  Anyone could propose such a rule, MacDonald answers, while again reiterating what, these days, he is increasingly in the habit of reiterating: before the referral, he either acted reasonably to address defense concerns (regarding mitigation, the protection of communications, or pretrial advice), or lacked authority to act under law.  A final jab at the pretrial advice---which, Bormann notes out, didn’t contain information her client’s status from 2002-2007, and his “participation” in the RDI program---and she brings her examination to a close.

A comfort break is called.