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1/28 Hearing #2: So Which Motions Would Y’all Like to Talk About?

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Monday, January 28, 2013 at 10:48 AM

We turn to the motions set for argument on the amended docketing order—or, rather, to the order in which those motions will be argued.  (The docketing order didn’t do that?) It turns out that we won’t commence with the docketing order’s lead off issues: AE32 and AE18, regarding attorney-client communications.  Instead (and perhaps sensibly), our first order of business will be witnesses and evidence relevant to those motions.  The dispute concerns the testimony of one Captain (formerly Commander) Welsh, who was slated to testify for the defense, and is somewhere on Guantanamo—but not standing by in the Expeditionary Legal Center’s courtroom, unfortunately.So will we get to the substance, in light of Welsh’s absence?  Or bring him to the court?  Ms. Bormann rises, Abaya and all, and notes an agreement that CAPT Welsh indeed would be available for purposes of AE32; she argues additionally that Welsh’s testimony is necessary (and in fact goes to the heart of) AE18, too. Welsh, she says, has been present and dealing with all the issues related to attorney-client access for years now, and Bormann says the motions cannot properly be argued without his presence. More generally, Bormann complains that defense counsel cannot move forward on its motions to compel witnesses without further guidance on what notice is required to the government. For expert consultants, everyone seems to agree (under Rule 703(d)), that the defense simply has to file a request with the government. But with fact witnesses, the process is different: in order to compel a fact witness’s appearance, the defense is required to give notice about the gist of what the witness is expected to say, in order to determine relevance. That’s not fair, according to Bormann: if anyone is going to have to decide relevance in advance, it should be the judge, not the prosecution. At this point, the defense has limited its filings on motions to compel because, she says, it does not believe it should be required to disclose work product to the government, and thus to tip its hand prematurely.

Rising for the government, prosecutor Maj. Jeffrey Groharing says Welsh is not really needed to decide on AE18 and 32, because those motions concern the prospective handling of attorney-client communications; there’s no need to dwell retrospectively, on what’s happened with communications in the past. He also points out that Welsh testified in Al-Nashiri about the very same issues. So now there’s some back and forth between [] and Judge Pohl: If Welsh testified on these issues in Al-Nashiri, then doesn’t that suggest the relevance of his testimony here? Groharing answers by asking: why, instead, can’t the court just rely on what Welsh already testified to, in the other capital case? The inquiry gets Judge Pohl’s hackles up about these being two different cases. The government doesn’t mean to suggest that testimony from Al-Nashiri is somehow incorporated by reference, does it? Well, no, says the prosecutor—but the witness just doesn’t have anything relevant to contribute here, in the government’s view. As to CAPT Welsh’s actual whereabouts, the witness seems to be somewhere on the island—but not, as Groharing confirms, in the courtroom.Ammar al-Baluchi’s lawyer, James Connell III, stands and asks to tweak the order of operations once more.  AE50—another motion to the production of certain witnesses—ought to be addressed before the court can get to written communications matters, he says.  Why rehash where we’ve been under previous regimes, asks Judge Pohl?  The defense lawyer responds that AE50 is relevant because it concerns the ethical issues facing the lawyers: to what extent should ABA guidelines about attorney-client communications shape the court’s decision?  It turns out that the question implicates classified matters, which Connell is naturally reluctant to mention in open court.

The sequence of events remains murky, as Ms. Bormann returns to the podium.  She argues strongly in favor of having CAPT Welsh testify: it’s important, she says, that we understand past practices and how they have changed over time, in order to get a full sense of how these orders actually function.

Groharing says that, if Judge Pohl believes that CAPT Welsh could give relevant testimony as to AE18 and 32, then Welsh’s presence could be arranged sometime later today. Judge Pohl instructs the government to ensure Welsh’s presence sometime later this week, but—since these motions may require other witnesses, as well—says that the court might not reach the motions’ merits until February.

Judge Pohl says we’ll go until about 11:45, then break for lunch, and reconvene at 1:00. For now, the court is called to break for a short recess.