8/22 Motions Session #3: AE018 Wrap-Up

The military judge calls the commission to order once more.  Speaking for Ammar al-Baluchi, Lt. Col. Sterling Thomas describes the sworn duty of military attorneys---defense and prosecution alike. This goes beyond zealous representation of our clients, he says; we also are responsible for supporting and defending the Constitution, and attending to our legal obligations.  And yet the government’s order prohibits me from defending against the very crimes that my client is charged with.  It stops me from faithfully discharging the duties of my office, he says.

Judge Pohl hesitatingly looks to CDR Walter Ruiz, to see whether he too would like to speak. Ruiz would, and moves to admit into evidence three envelopes, which contained privileged material sent through the U.S. Post Office---but which also were returned to sender, their contents excised. Ruiz doesn’t want to indict the Post Office, and it seems the judge doesn’t, either, as he declines to admit the materials while taking the lawyer’s apparent point.  Then Ruiz and the court exchange additional remarks---over handling DVDs and detainee letters, and the seemingly immortal phenomenon of “presumptive classification”---and then Al-Hawsawi’s defense counsel takes his seat.

To the great surprise of those gathered at Burba Cottage’s CCTV facility, the prosecutor Edward Ryan declines to make reply argument.  Well, almost, anyway.  “Not so fast,” says the military judge, who wants to hear about the security at Guantanamo, in comparison to federal prison facilities. Interestingly, Ryan tells him that restrictions sometimes can, in fact, be tighter in prisons on the U.S. mainland. Judge Pohl also inquires about handling of certain media, such as DVDs; Ryan answers along now-familiar lines.  The prosecutor seems to say that entry of a communications order should move the deliver of such items along.

Yea verily, at long last, it seems AE018 is submitted and awaits decision.  This raises a question: would an across-the-board defense win on AE018 moot at least some or all of AE032, a motion to bar the invasion of privileged attorney-client materials?  Ruiz insists that the latter sweeps more broadly, and thus would survive entry of any written communications order.  For her part, Bin Attash counsel Cheryl Bormann stands to bring what she calls a “sticky wicket” to the fore---her “wicket” being a word of caution that, yes, AE018 might moot some or all of AE032, but it also might not. The uncertainty does not disturb the military judge, who assures Bormann that any residual AE032-related issues can be addressed, if need be.