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1/29 Hearing #8: Al-Baluchi’s Telephone Call and a Delay of Game (Maybe)

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Tuesday, January 29, 2013 at 4:11 PM

MAJ Sterling Thomas, on behalf of Ammar al-Baluchi, argues AE93—in which Thomas and James Connell III ask the court to grant their client a brief, audiovisual communication.  Ammar al-Baluchi desires to call relatives abroad, in order to send condolences for the death of his father in 2012.  Similar calls have been arranged in the past, through a system established by the United States and monitored by the International Committee of the Red Cross.  Thomas also notes that Guantanamo’s high value detainees, such as his client, are subject to procedures akin to Special Administrative Measures—“SAMs,” in Bureau of Prisons parlance.  These may limit correspondence, media visits, and so forth. SAMs, of course, are subject to administrative review.

But here’s the kicker: there is no administrative mechanism in play here.  Had one existed, al-Baluchi would have invoked it.  The detainee asked JTF-GTMO last year for permission to place his desired phone call.  To date, though—three months after the request—the word from on high is that JTF-GTMO is processing the request.  The technical capability is there; and the security capability is there—thus, Thomas asks AE93 to be granted, on the unfortunate occasion of the death of al-Baluchi’s father. Judge Pohl: in your brief, MAJ Thomas, you’ve cited no basis for more stepping into this issue, right?  Where does my authority come from?  Thomas emphasizes the court’s authority over matters in the courtroom—including the telephone call matter brought to him today.  There’s a slippery slope problem here, Judge Pohl suggests. Thomas’ example concerns an Article III court, but this is an Article I court.

Prosecutor Clay Trivett stands, and explains the lack of a government response: prosecutors never filed one at the time of filing, given the urgent nature of the request.  And they’d thought the telephone call had been resolved, as so much time had passed in the meantime.  In any case, the government has nothing to add. Trivett sits.

AE93 will be taken under advisement.  That leaves our motions to compel, which the court desires to take up tomorrow.  Wait, there’s LCDR Ruiz.  He notes that the next day’s progress could turn on Judge Pohl’s ruling on Rule 703, regarding the production of witnesses—which the court has described orally, but not yet issued in writing.  Al-Hawsawi’s lawyer is eager to resolve the motions to compel—the issues underlying them are exceedingly important—but suggests that a delay may be appropriate, if only to review Judge Pohl’s written order when it comes down.

But prosecutor Jeffrey Groharing doesn’t want to postpone.  The court’s oral ruling gives the parties guidance enough, in his view.  We can have argument tomorrow, and supplement with briefing as needed, to the extent that the court’s new ruling alters the parties’ approach to witnesses.  March on, the prosecutor argues.

The court observes that the notices to date appear to comply with Rule 703, the text of which he summarized earlier.  Ruiz frets over ex parte procedures: what if he wants to submit something to the court only, which can further justify a witness request?  Judge Pohl responds that he’s reviewed the filings to date (including those regarding witnesses on the motions to compel), and that all of them comply with his planned ruling on Rule 703. Nothing’s changed, he says, therefore there’s no surprise to Ruiz and company, and no need for further review or briefing.  There’s still subtlety for Ruiz, who wants to know precisely what the court’s order is before proceeding.  The coming order might, for example, affect his oral argument.

James Connell III is prepared to argue motions tomorrow, notwithstanding the ruling-to-come issue—though he doesn’t object to a delay.  David Nevin joins Ruiz, as does Cheryl Bormann, who speculates that one or more of her filings might not comply fully with the court’s ruling.  The court is still puzzled, clinging to the belief that all the relevant defense filings have satisfied applicable notice and other requirements: none will be rejected because it failed to provide an adequate synopsis of a witness’s intended use, for example.  Bormann still disagrees.

The ruling: motions deferred until the defense has a chance to supplement the pending motions.  The court finds the entire thing terribly odd, and doubts the need for further adjustment of the documents under Rule 703.  But be that as it may, he’s granting a modest postponement.  AE29, 30, 35, 38, 46, 50, 61 and 65 are hereby delayed until our next session; in the meantime, counsel may supplement, withdraw, or stand on the motions as the defense sees fit.  The Chief Prosecutor observes that AE50 belongs to J. Connell, who stands ready to litigate.  Bormann guesses that a delay might occasion additional government review—and even agreement as to a witness’s production.  Martins, or his part, stands by prior denials and notes that two days remain on the court calendar for this session.

So we’ll do AE50 after all; its up now.

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