8/20 Motions Session #4: Protect-o-Rama, Part Three

Next in the protective order queue is AE013GG.  In it, Connell’s client asks to amend the protective order so as to permit the limited sharing of ICRC materials with defense personnel.  This stems from AE108K, the ICRC’s motion to intervene and prevent disclosure.  Connell has a unique take: he’s a Defense Department official, and thus the ICRC can appropriately disclose its confidential materials to him, subject to protection.

The Chief Prosecutor, Brig. Gen. Mark Martins, opposes Connell’s protective order request in 13GG---but now seeks a written ruling in any event, on the underlying motion, AE108.  Martins reminds the court that he need not address any privilege held by the ICRC to intervene in the case, while regulating discovery in this commission case.  (Of course, Martins opposes any “wholesale” discovery here, given the ICRC documents’ sensitivity.  But he proposes to search the files of relevant government custodians, and to bring potentially responsive ICRC documents to the commission for inspection---and to permit limited disclosure through discovery, as appropriate for exculpation and mitigation.  The lawyer sums up: no to 13GG, but a path forward to resolving matters in any case, via AE108.

Ruiz, on behalf of Al-Hawsawi, reminds Judge Pohl that Ruiz is not on board with 13GG---which, in Ruiz’s view, simply codifies otherwise objectionable classification rules.  The court: isn’t the real issue here AE108, and discovery?  It might not be useful to tack on every discovery limitation to the protective order.  Ruiz:  still, it’s never right to treat unclassified stuff, like ICRC documents, as “classified” under the protective order, as Connell proposes.  Moreover, argues Ruiz, Martins’ remarks seemingly hinted at an invocation of Rule 506, which shields information when disclosure could run counter to the “public interest.”  Should we get to that, then Ruiz wants an opportunity to brief the matter.   Well, we might not get there at all, the court interrupts.  Still, Ruiz will want to explain why disclosure won’t harm the public interest, if the time comes.  The court will address Rule 506 only when the prosecution raises the matter, Judge Pohl says.

Connell points out that 13GG only arises because the prosecution insisted on that approach.  In fact, the relief sought in 13GG is largely identical to that sought by Connell in another defense motion, AE108L, regarding the ICRC---which the government opposed.  At any rate, Al-Baluchi’s lawyer welcomes that the government appears to have come around here.  And he can accept that, yes, Rule 506 might be an issue---later.  (Martins adds that when Rule 506 does come into play, it might be on an ex parte basis.  Connell doesn’t much like that idea.)

A few words more from Bormann (who won’t join 13GG), and Nevin (who teams up with Bormann and Ruiz, in also skipping out of Connell’s motion).

Thus we bid adieu to 13GG.  Onward.