This Week at the Military Commissions, 10/14 Session: Joint Defense Agreement? What Joint Defense Agreement?

After a closed hearing on Thursday for a 505H session, Judge Pohl reconvenes the court in open session at 9:03am on Friday. The judge notes that all defendants are in attendance except for Mustafa alHawsawi (who is preparing to undergo surgery to fix a prolapsed rectum from his torture while in CIA custody) and polls defense counsel to check for changes in the representation (there are none). Chief Prosecutor Mark Martins then calls an Assistant Staff Judge Advocate to the stand who testifies that Hawsawi voluntarily chose to remain behind and to waive his right to attend.

After some additional brief preliminaries, counsel for Ammar al-Baluchi Air Force Lt. Col. Sterling Thomas resumes his questioning of Assistant Watch Commander 1492, who testified before the court earlier in the week. The witness testifies about an interaction with al-Baluchi in which al-Baluchi complained about three legal DVDs having been seized from him. The witness explained he made an inquiry with the officer in charge, but never followed up.

Next, prosecutor Edward Ryan reports back to the Court regarding some confusing handling of defense slides and documents that Judge Pohl had asked him to look into. During Tuesday’s hearing, counsel for al-Baluchi James Connell had complained that after he submitted slides to be used in argument to the government for review, the slides had unexpectedly been marked FOUO—meaning that he wouldn’t be able to distribute them following the hearing. It appears that the government marked the entire slide deck FOUO instead of singling out the few offending slides. After Ryan concludes, defense attorney James Connell accepts the prosecution’s presentations, but reiterates the importance of keeping the classification review process separate from the prosecution.

Judge Pohl then turns to Matthew Seeger, defense attorney for Walid Bin Attash. Seeger speaks in favor of his motion to compel the prosecution to sign an MOU that roughly parallels the one signed by the defense attorneys. Although he acknowledges that such an MOU might reflect a redundant “belt-and-suspenders” approach, he emphasizes that this was true of the MOU that he and other defense attorneys signed. Moreover, such an MOU would serve as an additional safeguard for procedural fairness and would also improve the appearance of fairness. “Your honor,” Seeger finishes, “opinions may differ as to how the prosecution’s trousers are hanging.”

The next motion is once again from Edward Ryan. He explains that the government is concerned about a potential joint defense agreement that could create obstacles later on—for instance if one defendant testifies for the prosecution or for his own benefit and the other defense attorneys must cross-examine him. The government is worried that the defense’s understanding of their confidentiality and conflict obligations might be contrary to law. Ryan therefore suggests that Judge Pohl require the defendants to produce a formal document delineating the agreement’s terms, which the judge would then be able to review (ex parte in camera), ensure the defendants understand its limits, and correct if necessary.

Thomas rejects Ryan’s argument, saying that the prosecution is essentially asking the defense to reveal to the judge “who a defendant may choose to work with, who a defendant may choose not to work with, attorney work product, and the roles and responsibilities which may exist within an alleged joint defense agreement”—and in some cases, even admissions of guilt. “Joint defense agreements do not have to be in writing,” he says, “and joint defense agreements are privileged.”

The discussion quickly becomes metaphysical:

MJ [COL POHL]: If they're not in writing, how do your clients know what they say?

DDC [Lt Col THOMAS]: If they exist, Your Honor, that would be a subject of discussion between the clients and the attorney.

[...]

MJ COL POHL]: … If there's an agreement between or among the accused, and it's not in writing … how does anybody, if we have to look at it down the road, know what was agreed to?

DDC [Lt Col THOMAS]: Well ... that would have to be a discussion between that accused, that hypothetical accused, and his defense attorney.

Thomas is arguing that for the judge to review a hypothetical joint defense agreement would be “highly prejudicial” for Judge Pohl, because the contents of the agreement could contain information that would sway the judge’s view of the case. Moreover, he tells Judge Pohl that even revealing the existence of the agreement to the prosecution would represent interference with attorney-client privilege. The two of them are tangling over whether or not Judge Pohl can review a document that Thomas won’t even admit exists. Eventually, an exhausted Judge Pohl tells Thomas that he can stop reminding the court that the agreement is hypothetical every time the judge brings it up.

MJ [COL POHL]: Well, you kind of want it both ways here ... what I'm hearing you say is we're not going to tell you anything that's in the agreement and we're not even going to tell you what we think the law is that controls any hypothetical agreement, and in the middle of trial, if Mr. Mohammad were to testify on direct and Mr. Connell or yourself wants to cross-examine him, at that point, we start discussing what the joint defense agreement says.

Judge Pohl digs into how the joint defense agreement would work if one of the co-defendants ends up testifying against the others. Could the cross-examining counsel use information obtained about the testifying defendant obtained under the agreement, even though the defendant on the stand has now “flipped”? Thomas appears to say that the answer is “yes.”

For Ramzi Binalshibh, James Harrington says that he agrees with Thomas on most points but believes that a co-defendant under cross-examination could not be questioned by defense counsel on the basis of information under the joint defense agreement—that is, as long as the defendant keeps his testimony to the scope agreed upon under the terms of the agreement. Alternately, “if the person gets up … and testifies to things that are outside of what was said in the agreement, the argument would be made that the person, at that point in time, has left the agreement and should be subject to cross-examination.”

Judge Pohl points out that the disagreement between Thomas and Harrington on the nature of the joint defense agreement is exactly what the prosecution is afraid of: that the defense will settle on such an agreement without any consensus as to what it actually contains. Harrington notes the judge’s point, but says that forcing a review of the agreement would “drive a wedge” between the defense and their clients, who would likely come to view the agreement as just one more song and dance required by the government.

Ryan expresses his frustration with the defense’s unwillingness to submit the agreement to Judge Pohl: “‘If it exists’ is not something that should be said to a court who has a very strong obligation to know if it exists.”

Harrington reiterates his counterargument, along with David Nevin, counsel for KSM. Nevin’s view is that there is no such thing as a model joint defense agreement, and perhaps in this case the best agreement would be one that’s not written down. He seems to be saying that it’s not up to Judge Pohl to determine what constitutes an appropriate agreement.

With that, Judge Pohl places the open session into recess and moves the court into a closed 806 hearing to discuss classified evidence. For Hawsawi, Suzanne Lachelier tries to move one final argument into open session on the grounds that the motion itself is unclassified, though the exhibits are not; but the judge nixes her request.