8/19 Motions Session #4: CAT versus MOU
Remember the protective order (AE013)---that governing the management of national security information in the case?
Published by The Lawfare Institute
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Remember the protective order (AE013)---that governing the management of national security information in the case?
Al-Baluchi’s lawyers, J. Connell III and Lt. Col. Sterling Thomas, have signed the Protective Order’s Memorandum of Understanding (“MOU”), and thus agreed generally to be bound by its terms. (The pair since then has received only limited classified discovery, according to Connell’s proffer.) But it seems the other four accuseds’ defense lawyers still have not signed the MOU. Why? Given the passage of much time, the court is keen to hear, as the refusal precludes the receipt of discovery from the government. Explaining, CDR Walter Ruiz first cites the litany of big-ticket issues that have arisen since the protective order motion’s filing and the present day: censor buttons, and monitoring, and so on. Those and related things have taken a lot of time and attention, the lawyer argues. There’s also ongoing litigation about the protective order’s terms, Ruiz continues, as the week’s docketing order attests. Until those are resolved, defense counsel cannot ethically sign on to the MOU. The court asks about this oddity: even without the MOU and the protective order, isn’t Ruiz precluded from disclosing classified material? Is this a tree-falling-in-the-woods issue? Sort of, Ruiz seems to say. Execution of the MOU also affects Al-Hawsawi’s rights, not merely Ruiz’s obligations as a lawyer. Ruiz has a motion under the Convention Against Torture, for example, which obviously implicates Al-Hawsawi’s ability to reach out to third party organizations about his treatment. But that ability seemingly would be compromised, if Ruiz were to sign the MOU and thus accept the protective order as currently drafted. The court bats this ball around a bit, before seeking some clarity from other counsel: is the Convention Against Torture issue the only impediment, so far as the lawyers are concerned, to executing the MOU?Pause: Bormann’s client, Walid Bin Attash, has asked for a brief recess. He gets one. We’ll be back in fifteen minutes.
Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT.
Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.
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