6/18 Motions Session #4: A Prosecutor Asks, and MacDonald Answers

Addressing the witness, prosecutor Edward Ryan proposes to keep things simple. Is there an actual law that created these commissions?  Yes, the MCA 2009, as implemented in the Military Commissions Manual.  But none of these authorities required you to appoint a defense mitigation expert, did they?  Nope.  Or to accept a submission in mitigation?  No to that, too.  What is your job, exactly, asks the prosecutor.  Well, answers MacDonald, my job isn’t to determine guilt or innocence; instead it is simply to make a probable cause determination.  (Ryan analogizes the Convening Authority’s job with the responsibility of a grand jury). MacDonald agrees with the prosecutor that the referral phase isn’t the last time when a mitigation submission could be submitted.  It can be put before him at any time, on a continuing basis, even after the case has been passed to the military judge. Ryan delves into the details of MacDonald’s efforts to support the defense in preparation for their cases, and defense counsel’s objections to his draft protective order---he ultimately had to withdraw the latter, as he never reached agreement with defense counsel as to its contents.  (He had held talks with defense attorneys, seeking to reach agreement on the issue---but the issue was mooted when the order was referred by the DoD’s top lawyer, to JTF GTMO.) The prosecutor reminds us of previous referred---capital---charges against these five individuals by MacDonald’s predecessor and by federal prosecutors in New York.  It took the prior Convening Authority three months to refer the case capital; SDNY had the case thereafter for only 60 days before an indictment was issued. And that at some point these individuals had indicated they might plead guilty, too.  The suggestion is obvious: why should this referral have proceeded differently, anyway?

So why did you ask for mitigation submissions, if you weren’t required to do?  MacDonald’s answer cites the complexity and seriousness of the case.  An attempt to be fair?  Yes it was, says the witness, who next describes the care he took in reviewing referral binders.  These included aggravating information---including information about the killing of children, whom Ryan names.

You made it clear, though, in approving mitigation assistance, that you didn’t intend for such allowances to bog down your referral decision? Yes, I did, MacDonald affirms.  He also extended the mitigation deadline, at defense counsel’s request, given a slowdown in David Nevin’s security clearance investigation.  The witness granted the same postponement to the four other accused.  Nevin likewise traveled to London with his expert, to investigate mitigation issues---and MacDonald signed off on his request to do so.  Ditto for similar requests filed by Bormann and her expert; and ones filed by then-counsel for Ramzi binalshibh; and other documents filed by defense counsel, who sought assistance in amassing mitigation evidence during the pre-referral phase.  All granted, Ryan notes, even though nothing required MacDonald to do so.

So, Ryan sums up a bit, the case has been sitting on your desk since June 1, and the deadline for mitigation submissions is now February 2. And then defense counsel requested multi-month extensions on top of that? The different extension requests asked for as little as 2 and as much 6 months more; the timing also depended on changes in GTMO policy---which, when asked by Ryan, MacDonald affirms that he could not bring about.  It wasn’t his detention facility, and he’s never run one. He had no choice but to deny them all.

But it’s not as though MacDonald, upon denying these requests, did not also immediately refer the charges.  Instead he waited two months.  The witness and counsel also discuss the lone mitigation he ultimately received, from counsel for Ammar al-Baluchi. It was, the witness says, “excellent.”  Given the issues raised by that accused’s counsel, MacDonald wanted time to discuss them with his team, MacDonald says.  But that was it; the witness never received additional mitigation pieces.

AE31 is Ryan’s next subject.  What of the public statements by current and former officials, about the accused---from Presidents Obama, Bush, and others?  Did you consider any of those?  No, says the witness.  And he well understands the notion of “unlawful influence,” from his past work.  MacDonald, as Convening Authority, also never has communicated with the officials described by the defense in their motion.  There was no nappropriate influence, he affirms.  Ryan is done.  But the defense is not; more from them in a moment.