6/19 Motions Session #1: Last Words on ICRC Reports

A lawnmower can be heard outside here at Burba, as the CCTV screen comes alive.  The military judge takes the bench, and the commission is called to order.  All five accused are in the house.

Our first order of business is leftovers---that is, wrapping up yesterday’s argument regarding the defense effort to compel discover of ICRC reports.

KSM lawyer David Nevin had a point to make, about ICRC lawyer Matthew MacLean’s argument---in particular, his claim that items not in the government’s possession are not subject to Brady and similar doctirnes.  It’s just wrong, Nevin says, and then sits.  CDR Walter Ruiz, Mustafa al-Hawsawi’s lawyer, also comments: he is skeptical of any voluntary, informal, maybe-you-get-it-maybe-you-don’t-depending-on-the-ICRC’s-judgment disclosure process---which both the ICRC and the prosecution propose.   He likewise doubts any claim that disclosure here would undermine national security; how can that be true if, as the prosecution claims, it never has seen the ICRC reports about the detainees?   Or take the Rule 505 process, which presumably would govern any protected---but never classified---ICRC material?  These and some related questions underscore Ruiz’s essential point: the court needs to rule on this issue, and order disclosure.  The court finds some of this premature, given that the question now is privilege; discovery and admissibility will come up later, if at ll.  (The Chief Prosecutor agrees with Judge Pohl’s characterization of the sequence.)