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1/28 Hearing #5: Agreeing v. Acknowledging, and Some Detention Discussion

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Monday, January 28, 2013 at 2:13 PM

We’re back from lunch, with all parties present.
 
A procedural tidbit before beginning: we’re told that classified session will commence this afternoon at 3 p.m., likely in connection with motions relating to the CIA’s RDI program.  The word is that the court _ probably _ won’t return to open proceedings thereafter.  Thus, for practical purposes, our coverage likely will be done by 3.
 
Forward to AE13T, another protective order-themed motion—this time, to reconsider the order’s “Memorandum of Understanding” (“MOU”), which defense counsel must execute before receiving classified discovery.  The issue: James Connell III and company want the MOU provision—paragraph 5(a)(2)—to be re-worded, so as to require defense lawyers only to acknowledge their duty to comply with the protective order’s substantive parts.  That’s not what the order provides.  At present, it instead says lawyers must agree to comply with the protective order’s rules. (Similarly, as to the MOU overall, the defense lawyers would like to change the compliance provision to “acknowledg[ing]” that they are bound, rather than “agreeing” to be bound.) The issue has to do with appellate review.  Connell doesn’t want to be seen as acquiescing to the protective order language, if only because he may want to attack it later, after the trial phase. And acquiescing, in many courts, amounts to waiving an argument on appeal.

Navy Lt. Kiersten Korczynski stands and dismisses any notion of waiver: there’s been argument on the order already, the defense has briefed it prior to that and—in this instance—ultimately lost.  All this more than suffices to handle any waiver or preservation issues.  In any case, for present purposes, defense counsel must sign the protective order in order to receive classified discovery.  She adds a procedural point about the request to “reconsider” protective order language.  According to Korczynski, nothing’s changed, so as to warrant the protective order’s modification—and the usual rule is that motions to reconsider are only appropriate if there has been a change in the facts or law underlying a prior decision.  Judge Pohl: well, there is something new here, because I crafted and entered my own protective order.  All briefing and argument, rather, concerned a draft order proposed by the government.  The prosecutor balks at the court’s assertion, and hearing no further questions, then sits down.

In reply, Connell draws the court into the delicate semantics of “acknowledging” versus “agreeing” to the MOU. Judge Pohl asks whether any appellate court would seriously conclude that the defense has waived its right to challenge the MOU by agreeing to be bound by it—as opposed to, say, acknowledging its bindingness. Connell says that yes, in fact, some courts (including those in his home state of Virginia) can be quite rigid when it comes to waiver. And since we have so little case law to go by at the CMCR, we can’t know exactly how strict that court will be. But Judge Pohl pushes back: would the CMCR seriously conclude that, after a defendant has made a formal objection and been overruled, he can still waive a right of appellate review on an issue because he signed an agreement? Connell still insists that yes, it’s possible the court could reach this conclusion. But Judge Pohl isn’t having it.

Clayton Trivett for the government rises with another housekeeping issue, one that takes us back to the much-discussed-but-not-present CDR Suzanne Lachelier.  As discussed this morning, she may yet wind up representing Mustafa al-Hawsawi, but doesn’t represent him just yet. Given that Mr. al-Hawsawi says he’s established an attorney-client relationship with Lachelier, the government believes the court should ask al-Hawsawi formally to “excuse” the already absent lawyer from the week’s proceedings.  Judge Pohl chafes at the seemingly empty formality, given that Lachelier hasn’t been officially assigned to represent al-Hawsawi in the first place.  How can we need a waiver for the absence of a lawyer who isn’t actually al-Hawsawi’s counsel? Trivett still thinks a waiver would be the most cautious path, given that al-Hawsawi (and, today, CDR Ruiz) acknowledges the existence of an attorney-client relationship as between the client and CDR Lachelier.   But, Judge Pohl asks, what if Hawsawi says, “No, I won’t go forward without her here”? Trivett says he’ll consult with co-counsel and try to clarify.

Ruiz returns, asking to submit ex parte filings under seal detailing the attorney-client relationship between al-Hawsawi and Lachelier. Ruiz does believe there’s an attorney-client relationship, so he appears to agree, now, that a waiver is needed for the proceedings to continue without Lachelier’s presence. Judge Pohl asks how it is that this has only come up today: we’ve been having these proceedings for months, and this is the first time Ruiz has said al-Hawsawi has a right for her to be present. There could be plenty of people out there assisting in the defense team; do we need a waiver for each person’s absence from the courtroom to go forward with the proceedings? Ruiz accepts this could be a slippery slope, but says the situation with Lachelier should be looked at based on the particular relationship she’s established with al-Hawsawi so far. But then he seems to back off from insisting on a waiver, so long as the court doesn’t find it necessary.

AE80—a motion to preserve evidence “of any existing detention facility”—is up next.  The court thinks the parties can argue this concededly sensitive matter in open session.  Prosecutor Johanna Baltes disagrees, but says that the government is nevertheless comfortable omitting oral argument, and resting entirely on its pleadings.  (The prosecution’s response filing remains classified.)  That leaves two choices for the defense: submit the dispute now on the papers; or proceed to a 505(h) session, in order to figure out what, if anything, can be discussed about existing detention facilities in open court.  We’re in recess while the defense mulls the optimal path forward.