6/21 Motions Session #7: A Ruling, and a Wrap

The evidence submitted, it falls to Edward Ryan to argue in support of AE18, the prosecution’s request for a written communications order.

Our proposal is indistinguishable, so far as privileged materials go, from the court’s order in Al-Nashiri.  And, a privilege team will be employed in this case, says Ryan in response to the court’s queries---with input from defense counsel, if correspondence comes in and has not yet been stamped.  The team, moreover, will work for the court, subject to a non-disclosure order.  And, Ryan notes, the current proposal codifies recent practices that have evolved since the bench order in Al-Nashiri.  Ultimately, one thing is certain, he says: courts defer to facilities’ determinations regarding their security needs.  And you, your honor, should do the same here, given the circumstances of this case and the detention facility.  Before the prosecutor can sit, the court asks about “contraband,” having in mind defense complaints that arose under the Woods orders.  Some of the latter’s physical and information “contraband” provisions were not subject to exceptions, and by now we know which ones worried the defense so greatly.  So how’s this going to work, the court inquires: will there or will there not be a relatedness exception nevertheless, for materials that implicate the much-discussed rules?   Ryan thinks defense counsel should be permitted to make their case to the privilege team, he says, though he recognizes the apparent dichotomy in prior orders.  Ryan and the court bat the issue around some more, citing the key contraband provisions---these might be adjusted, so as to import a “reasonably believes” standard, thus granting counsel room to protest those contraband designations they believe to be improper---and then the prosecutor returns to his seat.

David Nevin sees three problems with AE18 in its current form---though he has a proposed alternative that will soon be filed, that might bridge the gap between the parties.  One defect with proposal under consideration now is that the government’s approach doesn’t reflect current practice at Echo II, and it doesn’t really reflect practices in Al-Nashiri, either.  Interjecting, the court reminds Nevin that parties can always seek help to ensure the commission’s orders are enforced.  Nevin’s second problem is contraband, the definition of which remains flawed and subject to no exception in key circumstances.  Judge Pohl wonders here about striking the proper balance---there must be a way to preclude improper discussions of certain topics, he suggests.  KSM’s lawyer shrugs: Osama bin Laden is an alleged co-conspirator, and he publicly called for the murder of Americans.  But if Nevin tried to send documents reflecting that information to his client, JTF would then prevent their delivery.  Would the lawyer then strike those allegations from the charge sheet referring to such matters?  He needs leeway to discuss what is contained in the charge sheet, or else he cannot defend his client, full stop.  The court seeks to assuage Nevin, hinting at some sort of cursory review of items marked as legal mail; he also notes the privilege team’s independence from the JTF command. Finally, the proposed definition of “lawyer-client privileged communication” troubles Nevin: it strikes him as too narrow.  The defense counsel's fix would make clear, for example, that attachments count under what is privileged, not just cover letters and like correspondence.  The lawyer concludes with an aside, a fourth objection really: why call it a “privilege” team anyway?  If that’s going to be the title, there should no tentative language about seeking to protect attorney-client confidences, as the government’s draft contains; the final order must insist on protecting confidences, subject only to the crime-fraud exception.  The attorney-client relationship depends on this, Nevin says (and adds that Rule 1.6 of the Model Rules of Professional Conduct would inform an attorney’s course of action in urgent situations).  The court seemingly perceives a difference between that solution and Judge Hogan’s habeas order, the acknowledged template for many JTF policies heretofore.  Judge Pohl gestures, now, to the Lynne Stewart case.  Nevin’s anticipated draft will be due, we learn, in a week, with the prosecution given time to respond thereafter.

Bormann strikes hard against the suggestion, contained in the government’s draft, that handwriting a document renders it privileged.  She could, as she has argued, simply handwrite third-party documents that JTF now blocks!  Bin Attash’s lawyer derides this inanity, and predicts that more is to come---if AE18 is endorsed wholesale.  She thus proposes a “once marked, always marked” approach, among other things.  And she adds that an unamended communications order will preclude all kinds of critical discussions with Bin Attash---developments concerning his brother, and mitigation evidence, among other things.  Bormann finishes after a few minutes more.

Sentencing seems a long way away, but it is already on James Harrington’s mind. You never know, from an investigative standpoint, what will create the basis for a relationship with one's client.  His point: defense counsel should be able to bring what they require to meetings with detainee-clients.  Good faith has to matter, Harrington argues, and that can ensure confidence in defense counsels’ judgment about what’s acceptable for a meeting and what isn’t.  Mention of the privilege team prompts a question from Judge Pohl, who asks about the prospect of ex parte judicial review---while insisting that he isn’t looking for work.  Whatever the privilege mechanism says, Harrington, it has to work quickly.

Remaining counsel adopt the foregoing arguments, and argument on AE18 is done.

One last (!) thing---namely, AE64B, a defense motion to compel discovery brought by Mustafa Al-Hawsawi.  The prosecution objects to this, in part because counsel has not yet executed a memorandum of understanding (“MOU”) under the case’s protective order.  Of course, Clay Trivett insists that the government will comply with its obligation to hand over any and all statements made by Ruiz’s client.  The defense attorney will follow up, he says.  But in any case, the motion is granted, subject to the signing of an MOU.  That’s a matter of great urgency for the Chief Prosecutor, who emphasizes as much.  The court recognizes the MOU as central to the receipt of classified discovery---and the potentially serious consequences, so far as continued work on the case goes, for defense counsel who refuse to sign the MOU.  Judge Pohl expects compliance by the next session; inaction will require a remedy, he says.  Sensing a possible mind-meld, Martins also urges the addition and prioritizing of the proposed trial schedule to the next docket.

Some more housekeeping, and a week’s argument in the 9/11 case comes in for a landing.  See y’all in a few months.