8/21 Motions Session #3: On Obtaining the OMC's Internal Investigation Materials

Motion to compel number two (AE008M) pertains, like the day’s earlier motion, to the former Convening Authority’s testimony.  Retired Vice Admiral MacDonald told the commission that, during his pre-referral evaluation, the Office of Military Commissions’ (“OMC”) security department had been investigated internally, in connection with the clearance process for personnel.  But he didn’t go into detail.

Mustafa al-Hawsawi’s counsel, CDR Walter Ruiz, wants to obtain documents about the investigation, and moreover has rebuffed, as inadequate, the government’s effort to stipulate to the facts surrounding the OMC investigation.  He wants specifics: what was the investigation about?  It matters, given Ruiz’s past claim that needed translators and other defense personnel were not cleared in a timely manner---and thus could not assist Ruiz in preparing mitigation matters pre-referral.  Of course Ruiz can’t be blamed for his inability to articulate the exact relevance of his sought material, because he hasn’t read it yet.  The court understands this, but won’t countenance any compel-production-first-show-relevance-later approach.  The lawyer bristles a bit, as the documents’ general relevance seems clear enough to him: the clearance slowdown, after all, prejudiced his mitigation case, and the clearance office was investigated.

Groharing thinks Ruiz would turn the discovery process on its head.  Moreover, there’s no---zero---indication that documents underlying the security investigation would advance Ruiz’s defense efforts.  This is an internal review, the prosecutor says, about security practices at the Office of Military Commissions, and recommendations for improvements.  There’s nothing case-specific in the materials, Groharing tells the judge; just stuff about controlling background investigations and keeping tabs on who is read on to what classified programs.  The court clarifies the scope of the request here; Groharing has described an internal report, but Ruiz’s request sweeps more broadly than that one document.  A bit more, and the prosecutor sits.

Judge Pohl wonders aloud, about how best to handle this discovery.  The government, he says, makes ex parte determinations about what’s discoverable, in the first instance.  Thus the court and Ruiz usually don’t know about the contents of not-yet-produced material---and, in Ruiz’s view, that makes for a tough climb on showing relevance.  But the report described by Groharing might make for a different situation---one analogous to a request for a victim’s medical records.  We obviously know something here, and the government’s representations might not be enough to go on.  The court: what about in camera review here, of the report?  He asks Groharing, who doesn’t object to the idea.  Bormann then chimes in, to emphasize the correct legal standard for compelling discovery: material to the preparation of the defense, and not relevance.  And, she adds, the opportunity to obtain evidence here is supposed to be comparable to the opportunity in an Article III court.