6/18 Motions Session #5: A Farewell to the Admiral

A few words for MacDonald, from Al-Baluchi counsel J. Connell III.  The court hints at a narrower re-direct examination, reminding Connell and other counsel to limit questions to issues addressed during Ryan’s cross.

You operate in secrecy, like a grand jury?  MacDonald can’t say, but he agrees that, yes, he makes a probable cause finding---much as a grand jury does.  (He isn’t sure of the standards grand juries apply.)  In particular, the lawyer asks whether MacDonald evaluated a statement made by his client to the FBI--which was classified secret.  The witness thinks he considered the document, but doesn’t remember classification exactly.  Another matter: MacDonald said he took defense counsel’s objections so seriously, that he delayed, and then ultimately withdrew, his draft protective order.  Connell asks, did you agree with Colwell on any matters?  It is hard to say in retrospect, answers MacDonald; he was working through objections in coordination with other offices, like the DoD General Counsel and CIA.  Still another matter served up by Connell: al-Baluchi could have submitted mitigation matters, in federal court, both to U.S. Attorneys and to the Justice Department?  The witness agrees that Al-Baluchi could have.  One more: Al-Baluchi’s extension request, starting with the establishment of a legitimate attorney-client communications and counsel access policy at GTMO, and extending sixty days thereafter.  If MacDonald had credited allegations of interferences with the attorney-client privilege at GTMO, as alleged in the request, would it have mattered to his decisions?  The witness can’t say, but the counterfactual is wrong: he rejected Connell’s claims.  But it would have mattered a lot to him, he testifies nevertheless.  Maybe it could have affected his decision, though he can’t speculate about what facts would have persuaded him not to refer the case on a capital basis.  A capital referral wasn’t a foregone conclusion, though, says MacDonald.

James Harrington wants to discuss the indictment in the Southern District of New York. MacDonald, when asked, confirms that the defendants’ contemplation of a guilty plea in the SDNY did not affect the later referral decision he made. He moves on to discuss the language MacDonald used in setting deadlines for mitigation submissions; while he didn’t state so explicitly, after the deadline’s passage, MacDonald would have welcomed further information. Binalshibh’s attorney disagrees; he thought the idea was, instead, to set a submit-by date, after which no more matters could be put forward in mitigation.  The lawyer then wonders if any mitigation information would have staved off a capital referral.  MacDonald won’t show his cards there---relying instead on his answers earlier, to Connell’s inquiries on the same topic.

KSM lawyer David Nevin asks the same question Harrington asked---was a death referral inevitable from the get-go?  No, MacDonald repeats; he could have been convinced otherwise, and had hoped---in vain---to receive mitigation submissions for all accused, even after the deadline.  So Nevin got sixty days to make his mitigation investigation, pre-referral.  Fine.  How much time did the government have to prepare its own case (ahem, eleven years, ahem).  Judge Pohl sustains prosecutor Ryan’s objection, which comes quickly.  The attorney notes protective order rules, that precluded discussions about detainees other than KSM during the pre-referral phase.  MacDonald rejects the characterization, claiming that attorney-client representation discussions were, in fact, permitted under his proposal.

Nevin tags out and Bormann tags in, asking about the witness’s preparations for this week’s testimony.  Again, the lawyer notes MacDonald’s refusal to meet, alone, with defense lawyers---and again, MacDonald acknowledges this.

Mustafa al-Hawsawi’s lawyer, CDR Walter Ruiz, will bring the day’s questioning in for a landing---the clock ticking ever closer to 6:30, when, according to IT folks, the witness’s video hookup will cut out.  MacDonald had said that an open-ended pre-referral phase, and a protracted extension for a trial-ready mitigation report---was unacceptable to him.  But, says Ruiz, defense counsel sought only as much as a year, maximum, and likely far less if GTMO would get its act together and respect the attorney-client relationship.  Himself, Ruiz says he sought four months on his client’s behalf.  You wanted to weigh both sets of information, didn’t you? That doesn’t square with the lopsided prereferral investigation times allotted to the parties. MacDonald opts for his go-to retort, that he was not required to consider any defense-submitted materials---but, he adds, he was required to assess the prosecution’s materials. Ruiz calls him out on his half-answer: MacDonald made a discretionary decision to allow the defense to engage in this process, and (the lawyer seems to suggest) couldn’t then prohibit counsel from pursuing it properly.  On prompting from Ruiz, the Convening Authority says he didn’t charge the case capital, while having in mind (one way or the other) the likelihood of a guilty plea.

A final query: so you have five learned counsel, all qualified in death cases, asking for more time to submit mitigation evidence; and meanwhile your legal advisors, concededly unqualified in such cases, are saying sixty days is enough time to prepare mitigation submissions. Was that “fair,” Ruiz asks.  A red-faced MacDonald reiterates that he acted reasonably, and that he couldn’t help defense counsel in any case: under the MCA 2009, he could not order pre-referral discovery, one of the issues most important to Ruiz and company.

And with that, we are in recess until tomorrow, when we hear from Rear Admiral David Woods, who was once GTMO's commanding officer.