October 19 Commission Session #5: Does the Defense Get to Depose the Convening Authority?

Movin’ right along to AE60.  CDR Walter Ruiz sets forth his request for various information about the military judge’s appointment.  He wants to have a look at, among other things, the names of other judges who might have been assigned to this case, and records regarding Judge Pohl’s financial holdings.  Robert Swann stands for a brief response: the court, he says, has already set forth all the facts surrounding the court's personal reaction to the 9/11 attacks.  Disclosing Judge Pohl's financial records would be entirely unneccesary.  As Swann sits down, the court says it will take AE60 under advisement. Without a pause we turn to AE46, a motion to compel the testimony of various witnesses---who would furnish evidence in support of AE31, the defense’s motion to dismiss for unlawful influence. According to CDR Walter Ruiz, lawyer for Mustafa al-Hawsawi, the motion to compel should be granted.  He cites the case of William Calley, and the My Lai massacre.  The essence of that decision was that, if there is a colorable suggestion of unlawful influence, then the burden shifts to the prosecution to demonstrate the contrary.  There certainly is the smell of unlawful influence here, Ruiz says.  Consider the myriad statements about the accused, made by the President and other high-ranking officials.   The court and counsel then go over the various individuals named in the defense’s papers.  Among them is the Convening Authority, Bruce MacDonald.  Has Ruiz yet attempted to discuss the unlawful influence issue with MacDonald?  No, and Ruiz does not intend to.  Regarding other witnesses, Ruiz explains that the government has denied access to them on the basis of privileges, like deliberative process.  But these privileges do not apply to the Convening Authority or the commission legal advisor.  Can the latter unlawfully influence his superior, asks Judge Pohl?  Unlawful authority typically means unlawful command authority.  (The court acknowledges that the word "command" is not employed in the MCA, though it is employed elsewhere in military justice.)   The lawyer thinks that, as a matter of plain language, unlawful influence is multidirectional, not just top-down.  He adds that the prosecution is uniquely positioned to provide evidence on the unlawful influence issue; the defense knows far less about the workings of the executive branch, and its referral process, than its opponent knows.  And in Ruiz's view, prosecutors must make the sought evidence available.  That follows from the high-ranking officials’ statements, which raise a colorable claim of unlawful influence.  Transparency, Ruiz argues, warrants the granting of his motion. Major Robert McGovern, a prosecutor, argues for the first time in this round of the 9/11 case.  The government badly wishes to meet its obligations here, he says.  And it intends to produce the referral binder to the defense, just as soon as the protective order is entered.  McGovern underscores that there is no duty to provide unlimited discovery to the defense.  Only relevant, necessary and noncumulative materials must be handed over, and fishing expeditions are off-limits.  Here’s Judge Pohl: the bulk of the prosecution’s response is based on work product,  deliberative process and other privileges.  Do these cover all the witnesses here?  McGovern’s answer cites not merely privilege, but also relevance.  When the court follows up on the latter, McGovern doesn’t really explain how, say, the Convening Authority's testimony could be irrelevant.  Instead the prosecutor emphasizes the sweeping breadth of the defense’s motion, as well as its timing.  Nobody spoke to the government, or to the relevant personnel, before proceeding with its so-called “emergency” motion.  That’s sandbagging, in McGovern’s view.  Apropos of standard procedures, Judge Pohl asks, would the prosecution object if, in fact, the defense approached the Convening Authority and inquired about the circumstances surrounding the referral?  The prosecutor starts to say “no,” but stops and proceeds to emphasize the need for specific and relevant inquiries from Ruiz and company.  The defense’s motion is just too broad.  The defense wants to see communications between the President and his advisors? That’s outrageous.  The prosecutor concludes by reiterating privilege-based objections.  Despite Ruiz's protests, he explains, these indeed apply in criminal cases where the charging decision is attacked.  A squint from the court: exactly who has the attorney-client relationship here, to the extent you claim attorney-client privilege?  Is the relationship between the Convening Authority and the legal advisor?  Before charges are referred, the Convening Authority plays a prosecutorial function, McGovern says.  That non-answer moves the court to repeat itself.  McGovern unfortunately cannot give a firm answer, but only because the defense’s request is so broad.  Again, where is the attorney-client relationship?  “It depends,” he says. Ruiz replies.  Contrary to McGovern's suggestion, ours was not filed as an “emergency” motion, and it was properly raised based upon the statements of executive branch personnel.  Very well, says the court.  You’ve asked for a great deal of information, but you haven’t asked the Convening Authority any questions.  Why ask for discovery if you haven’t yet contacted the witness?   Ruiz acknowledges that he could ask the Convening Authority for an interview, at least in theory.  But here’s how things work in fact: earlier, Ruiz approached Captain Murphy, the Chief Prosecutor’s predecessor.  Murphy would only agree to talk to Ruiz under tightly controlled conditions---and, during their brief meeting, Murphy proceeded to claim privilege twenty or thirty times, even in response to the most innocuous of questions.  It would be futile, Ruiz seems to say, to approach the Convening Authority in the same fashion. AE46 is taken under advisement; we're in a brief recess.