Lunch is done. David Nevin notes the absence of co-counsel, Gary Sowards; prosecutors remind us that all five accused remain voluntarily absent.
We circle back to AE108, regarding the conditions of confinement—and argument in opposition by prosecutor Maj. Robert McGovern. He touts the many virtues of the government’s proposed approach: site visits? Check. Discovery into conditions of confinement (after signing the protective order, of course)? Check. In fact, the prosecution will go further than the defense even asks in AE108, which concerns only current conditions; the government plans to disclose information about historical conditions, too. The prosecutor is also careful to note that, at this time, he has no plan to introduce any confinement evidence, in the United States” aggravation case against the accused.
McGovern objects strenuously to the idea of a defense site visit with the accused present throughout. Judge Pohl: why must the lawyers’ clients be absent, during the visit? The accused already are detained in the facilities, after all, and it’s their experience that matters. There’s no need for some “open house,” with lawyers included but their clients not. The mitigation inquiry usually proceeds without the defendant’s participation, responds McGovern. Past capital case practice shows that such participation isn’t necessary. That’s not good enough for the court, who finds McGovern’s argument to be more policy than law. The prosecutor dissembles, while referring to security prerogatives more generally; he ultimately answers by asking how could the accused’s presence really help the defense? Again, mitigation can go forward with counsel and experts alone. The defense wants a site visit, and they’ll get a site visit. But an accused walking down the hall, chatting with defense counsel while intermittently talking up this or that JTF staffer? No way.
The court turns to documents prepared during defense counsel’s site visits. Judge Pohl is visibly not eager to delve into JTF-GTMO policy here—but wants nevertheless to enable the defense’s mitigation investigation. And he cannot figure out why—as the prosecution’s briefing has suggested—a site visit would trigger security protocols above and beyond those governing other written materials in the case. Why not just have site sketches and other items submitted for classification review, as is standard fare for other documents? McGovern stresses the need for additional, JTF-GTMO review, in order to ensure that nothing “inappropriate is conveyed.” A final question: would a forty-eight hour visit to the facility cause logistical challenges? Yes, the prosecutor says, there will be such burdens, and security risks, too. But he cannot say, right now, whether a forty-eight hour session would be impossible. McGovern reminds the court that only so much time is needed to see a facility and to document it. There’s no justification for an open-ended defense sleepover. He closes by doubting the relevance and necessity of that approach.
The podium passes to LCDR Ruiz, who clarifies. He wants forty-eight-hour access not merely to this facility, but to all facilities where Mustafa al-Hawsawi has been held at GTMO. Judge Pohl observes: if your client accompanies you throughout a facility visit, then JTF-GTMO must insist on supervision by security personnel. Won’t their presence arguably destroy attorney-client privilege, or confidentiality? It could, Ruiz says; but he can imagine workarounds in particular situations. Their very mention worries the court, which ponders litigation to come about the legal sufficiency of a particular workaround. Ruiz moves to mitigation, which is one of his motion’s goals, but not the motion’s only goal. As for the others, he can’t say precisely what other kinds of evidence his inquiry will turn up, but believes nevertheless that he has a very good strong basis for a broad-brush inquiry into conditions. Ruiz then doubts the prosecution’s citation of authority: it notes a civil case in its pleadings, but this is—duh—a capital military commission case.
David Nevin wants to add a point about the privilege bubble and the presence of third parties. But he stops short. Striving to avoid the censorship button, Nevin asks permission to talk about KSM’s holding cell, and the circumstances of a typical meeting between Nevin and his client. Johanna Baltes, speaking for the United States, objects to any discussion of force protection information, like the room’s physical layout—but sees no reason why the lawyer cannot talk generally about the presence of security personnel. Having won approval, KSM’s lawyer says he believes there is video but not audio monitoring of his client meetings, during which the accused is shackled, and the doors are unlocked. But there is nobody in the room other than Nevin, his co-counsel, and KSM.
Cheryl Bormann rejects McGovern’s cramped view of AE108. A mitigation investigation must be broad, and take place in situ, with the assistance of a mitigation expert and the client present. Yes, there are security concerns, she says, but we can work around them.
James Harrington treats his legal notes as classified—even ones prepared during a site visit. That returns Judge Pohl to his prior line of questioning. If you take notes, they’ll be secret, and handled as such? Yes, the lawyer says.
We’re in recess.