Ruiz takes a third stab at AE108, first by emphasizing the justification behind his proposal for overnight visits to his client’s detention center: the lawyer needs to determine sleeping patterns, other life patterns, and the like.
Next he notes two attributes of the prosecution’s briefing regarding reports prepared by the International Committee of the Red Cross (“ICRC”): one, its acknowledgment of the broad nature of the mitigation inquiry; and two, the prosecution’s suggestion, nevertheless, that the defense gets less access to the accused than the ICRC gets. For that reason—the ICRC’s historical interviews with and access to the accused—the defense sought discovery of ICRC materials regarding confinement conditions. Prosecutors can’t have it both ways, he says: on the one hand, the government boasts of providing ample discovery into conditions of confinement; yet on the other, the prosecution also refuses discovery into ICRC materials, citing amorphous “national security” concerns. The double standard is incompatible with the government’s claimed commitment to transparency. He adds that, in any case, the prosecution has no standing to invoke non-disclosure privileges on the ICRC’s behalf.
McGovern wants to keep the focus on what the defense wants. Defense counsel asked for a site visit, and here, the government aims to make one visit possible. But the defense didn’t mention ICRC materials initially, having filed their ICRC motion while the United States was smack dab in the middle of preparing its initial response regarding the accuseds’ conditions of confinement. What a moving target, the breadth of these defense requests! One day, it’s site visits only; the next, it’s ICRC stuff.
The court interrupts: is there any prohibition on turning over ICRC materials? McGovern says such documents are handled as classified. But are they actually classified? The prosecutor acknowledges that the ICRC reports are not classified originally (though, as Judge Pohl notes, classification wouldn’t preclude discovery, but would instead implicate the ordinary rules for producing classified material). McGovern again stresses the eleventh-hour character of the defense request, and disputes the ICRC documents’ relevance. He adds that protecting ICRC materials from disclosure is good policy, as discovery could discourage the ICRC from visiting U.S. detainees abroad. Well, okay says the court: sound policy. We’re doing law here.
On things legal, McGovern reiterates the irrelevance problem—what does the ICRC stuff have to do with site visits? If they set that out, in a timely filing, then perhaps we can litigate the issue later. Judge Pohl posits a theory of relevance on the defense’s behalf. Counsel want to know what conditions look like now—we know that. Well, current conditions are concededly relevant, then wouldn’t historical information bear on the question? McGovern desires to sit, adding only that the question for today—and the only question—is how to handle site visits. He adds that discovery of ICRC documents could touch on classified material, which could call for Rule 505 discussion, as well as substitution. Johanna Baltes jumps in, citing the obligations between the United States and the ICRC, and the need for reciprocal ICRC inquiry into U.S. persons abroad. But she adds, in any case, that the United States hasn’t briefed these questions, or the overall discoverability of the ICRC reports.
The resolution all but leaps at Judge Pohl. The self-identified “process guy” wonders, why, given the rules, did McGovern argue against ICRC request at such length, while waiting until now to claim that the issue was not yet ripe? The prosecutor apologies. We’ll await further briefing on ICRC matters, apparently.
Ruiz calls the prosecution’s complaints nonsense. The ICRC filing is timely, having been sent to the United States on 27 December. It wasn’t yesterday; it wasn’t last week; it was before the New Year. Indeed, the government’s response was filed on 4 January, acknowledges the government’s discovery obligations, but denies the request for ICRC materials. The defense thus asked the court to address its two conditions of confinement requests—one directed to the detention facility itself, another to ICRC reports about that facility—at the same time, for judicial economy reasons. The notion that McGovern has insufficient time is simply inaccurate.