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2/13 Hearing #6: Scheduling and Three Defendants’ Privileged Materials Disappear

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Wednesday, February 13, 2013 at 6:11 PM

Judge Pohl reconvenes, and wonders: does the Defense have any issues that will need addressing tonight? For his part,  Ruiz has a question regarding Admiral MacDonald’s testimony at 0900.  Has the burden shifted to the prosecution on AE31, the motion to dismiss for unlawful influence?

No, Judge Pohl says that there’s no evidence before him on those issues, which is true of every motion.  But that’s sort of the point, for Ruiz.  He mentioned attachments to the motion—will those be considered?  And what about the discovery issue he discussed at length with Judge Pohl earlier in the day?  If the burden indeed has shifted, then, Ruiz says, the defense would like to make that argument to the court. Judge Pohl says he will start with AE31: if the public documents appended to that motion are offered as evidence, and if there’s no factual dispute about them, then Judge Pohl will consider the attachments in deciding the motion. Shifting the burden is a legal conclusion, he says, and there is no evidence before him right now, with which to decide AE31.  If the parties want to discuss AE31 right now, he says, we can do so—but Judge Pohl is reluctant to discuss burden shifting on a dry record. Unlawful influence has a burden shifting element to it, sure, but it is no different from other burdens.  The court thus doesn’t have an opinion on whether the burden has been met here; not at least, until he’s heard all underlying facts. A court doesn’t make a preliminary decision on the burden shift, and then take evidence on whether the defense has met the burden and if the government has rebutted the burden.

So much for that issue; Judge Pohl then asks about near-term scheduling—in particular, what questions of law are before him.  AE091, AE104, AE105, and AE106, says the Guv’ment.  (Al-Baluchi’s counsel, Sterling Thomas, is the proponent of all the motions in this group.) Another filing, AE107, has many legal aspects to it, and—Lawfarer’s pause—Judge Pohl says he really wants to address the conspiracy component in particular.  But that will only happen in due time.  While the court has a sense of the arguments, it will save AE107 for our upcoming April hearings.  So put those four questions of law, plus the witnesses, on the agenda for tomorrow.  Looking further afield, our schedule looks like this: We are adding a session on 17 June, in addition to the April dates already agreed upon.  And Judge Pohl plans to go five days in April, he says.  Judge Pohl warns that no side should assume that the docket won’t be changing between now and the April hearings.

Bormann flags an issue for the court, one at the very heart of AE32 and AE18, the pending defense and prosecution submissions regarding written communications. The gist: Bormann worries that properly-stamped legal mail is being searched while the clients are away from the detention camp—that is, while they are present for pre-trial hearings at the ELC.  That seemed to happen yesterday, while bin Attash attended court proceedings: several documents went missing from his legal bin, including privileged documents.  Thus Bormann moves to require the court to enter an interim order to get the documents back. She believes that a third party is in possession of material that is attorney-client privileged.  She’s emphatic and modest at the same time: All she asks is that Judge Pohl endeavor to prevent further violations. Judge Pohl says any lawyer knows not to violate the privilege. Of course, Bormann reminds the court that the privilege team doesn’t report to the Prosecution or to the Judge. Judge Pohl is trying to find solutions, he says—but the only option is to use the privilege team.

Bormann: if the material has been properly stamped but is seized, then it should not be reviewed any further. General Martins says the Government wouldn’t oppose some manner of interim relief here—a draft order maybe—but Judge Pohl isn’t interested.  He won’t issue an order on motions still subject to litigation as AE32 and AE18 are. In the meantime, the privilege team will be advised to look for stamping, but not for anything else. Harrington and Nevin both believe their clients–who, like Bormann’s, were here for court yesterday—confront this problem.

And. . .we’re adjourned until Thursday morning.