“The commission is called to order,” Judge Pohl says.  Back to CDR Walter Ruiz, and his witness: the Convening Authority, with a visage grainy in the video-teleconference monitor (itself piped to us here and displayed on the Smallwood screen).Ruiz reminds MacDonald about the rules governing the referral process, and asks the witness to summarize it (for, say, review some eons from now by the judges of the D.C. Circuit).  MacDonald does so.  His mentions his review of pretrial advice by the legal advisor, among other things.  He considers, but is not bound by that advice; MacDonald is free, for example, to examine referral materials himself and to consider mitigation evidence put forth by the defense. The Convening Authority also points out that he doesn’t have to refer charges for trial at all. And, yes, it’s up to MacDonald to refer charges as capital or not.

Ruiz cites a 2013 declaration submitted by MacDonald.  It suggests, in Ruiz’s view, the receipt of oral as well as written advice. On the latter, MacDonald says he desired to scrutinize all the case’s written materials closely, himself.  But he did receive at least some oral advice—responses to questions MacDonald had asked in connection with, among other things, a mitigation submission by attorneys for Ammar al-Baluchi.  It took MacDonald about three to five months to review the case’s two referral binders and related materials (a lot longer, Ruiz argues, than the defense had to review those same items, in preparation for today’s questioning: he had less than a week).  It was important, MacDonald says, to execute his duties responsibly, in making a referral decision under the rules.

With those rules in mind, we forge further.  Military procedures certainly did not require MacDonald to consider mitigation evidence at the referral phase, he says.  Ruiz seems to disagree: the relevant rule (or at least its discussion in military commission legal materials) says that the Convening Authority should consider extenuating and mitigating factors.  Doesn’t that discussion deserve some weight, during the pre-referral?  The witness pivots a bit, as he has neither the rules nor their discussion before him. Ruiz: but the pretrial advice to you should not be so incomplete as to render a referral defective, no?  MacDonald seems to agree, but he rejects any broader claim that he hasto evaluate mitigation evidence.  This brings Ruiz back to his discussion language, which must inform the application of the relevant legal rule.  Doesn’t this all mean the defense must have an opportunity to submit mitigation materials during the pre-referral phase?  For MacDonald, this all comes down to the difference between recommendation and command.  Ruiz comes to his punchline: in a 2011 letter, he had asked MacDonald to extend the deadline for the submission of referral-phase mitigation evidence on behalf of Ruiz’s client, al-Hawsawi.

And Ruiz’s letter also complained that one of the defense’s mitigation experts had not yet been able to apply for a necessary security clearance—he hadn’t received the necessary weblink from DoD personnel.  (MacDonald says he asked subordinates to look into that issue.)   The lawyer summarizes other allegations in his letter and the witness acknowledges them, while reminding the lawyer that, in fact, the witness had granted a brief extension, from December 2011 to January 15, 2012.  Then Ruiz turns to the October, 2011 baseline review: in another letter, the defense jointly called this to MacDonald’s attention, too, Ruiz says.  MacDonald actually learned about this a bit earlier on, he responds, when bin Attash lawyer Cheryl Bormann wrote to him in advance of the defense’s letter—which also sought more time to conduct a mitigation inquiry.  MacDonald indeed granted that second extension to boot, in deference to then freshly-cleared lawyers Nevin and Harrington.  In order to give them time to meet with their client, he pushed the mitigation deadline back one more, to February 6.

But, Ruiz prods, you were aware that our mitigation experts weren’t yet cleared when you granted us this trivial delay, right?  A visibly angry MacDonald answers that indeed he was aware—but emphasizes that he didn’t condition the submission for mitigation evidence on the clearance of mitigation experts.  The temperature rises.  Now, defense counsel seems to say, then what the heck was going on?  You, Mr. Convening Authority, approved our expert requests from the get-go, Ruiz says.  The witness, angrier, retorts: the mitigation experts had every ability to review unclassified materials, clearance or no clearance.  Ruiz: did you know that our still-uncleared experts could not meet with our clients at all?  MacDonald: yes.  But you, Ruiz, could meet with your clients, and review any classified discovery needed to make your mitigation case.  You had the duty of preparing mitigation submissions, he underlines.  So, if it really was solely up to us—the defense—to do all the mitigation work, then why did you approve our expert requests to begin with?  The court blocks Ruiz’s suggestion that MacDonald knowingly approved of a procedure destined to produce an incomplete mitigation investigation.  More questions on this subject, and more from the witness: you had every opportunity to perform a mitigation submission, counsel.  In fact, MacDonald thunders on, I received a mitigation submission from Connell, regarding al-Baluchi.

Ruiz mentions al-Qatani, and that notorious case’s notorious non-referral by Susan Crawford, MacDonald’s predecessor.  The witness is well aware of Crawford’s disposition.  Ruiz: is torture a mitigating matter appropriate for consideration?  It would be, MacDonald says, but the Convening Authority also emphasizes the role of Learned Counsel.  My expectation is that cleared, learned counsel would perform needed investigation and provide me with mitigation material.  How could I, without a translator, or a cleared expert, asks Ruiz.  MacDonald again, even angrier than before: You rejected the 8-10 translators that were cleared already and provided to you, and then you selected a translator with no security clearance.  I dispute your letter’s allegations, MacDonald says.  Ruiz asks whether MacDonald believes counsel to be qualified to perform an ABA-complaint mitigation investigation, without cleared translators and experts; the witness again emphasizes counsel’s own role.

Security returns to the fore.  In August 2011, MacDonald’s security department apparently could not provide SAP briefings (presumably those regarding “Special Access Programs,” or certain classified information).  MacDonald acknowledges this.  Ruiz: isn’t that because your office was subject to an investigation?  The witness says he does not recall the reason, but does recall the SAP problem.  The point: Ruiz had flagged a long-pending request for a clearance, submitted on behalf of one of Ruiz’s translators.  MacDonald says he knew about the request, but that he paid additional funds in order for the Office of Personnel Management to conduct any necessary investigations within 35 days; and for the DIA to adjudicate the investigations. But there were caveats, MacDonald explains.  Even the expedited process was dependent upon the issues developed in the investigations. Thus the slowdown.

Apropos, Ruiz refers to another request to extend the deadlines during the pre-referral phase.  He sought a four month delay, on account of mail seizures during the baseline review.  This document also set forth the severe burdens on the attorney-client relationship, which the status quo imposed. Among other things, Ruiz’s letter explained that al-Hawsawi couldn’t receive legal correspondence (including that between Ruiz and MacDonald).  The witness responds at length, taking pains to emphasize how seriously he took counsels’ allegations against JTF regarding mail.  In response to them, he directed his legal staff to get to the bottom of the issue.  Subordinates afterwards returned and advised MacDonald that JTF now was in compliance with Judge Pohl’s written communications order in Al-Nashiri.  That’s what we were waiting for all along, MacDonald underscores: before the cases got going, there was no judicial remedy for intrusions into attorney-client mail.  Indeed, the witness says, his lawyers told him that the new policy was superior to Judge Pohl’s order, in that it established a privilege review team.

There’s some more now about mitigation.  Another of Ruiz’s letters to MacDonald highlighted his grave concerns about the defense’s lack of resources during pre-referral: lack of cleared translators and experts, and the like.  The witness again acknowledges some slowdowns in the processing of security applications, while noting as before that, yes, that’s what you said here or there in your letter.  But he’s sharp in reminding Ruiz again: your people are cleared now, and you can always submit mitigating evidence to me, classified and unclassified, at any time.

Admiral, can a capital defense lawyer—who doesn’t have a translator that speaks the defendant’s language, who doesn’t have a mitigation expert, and who cannot communicate in writing with his client—present adequate mitigation evidence?  That’s not my position, MacDonald again says.  He rejects the premises about the lack of personnel (MacDonald provided them) and about communications (Judge Pohl’s order solved that problem).  But, no, MacDonald doesn’t disagree that Ruiz lacked the services of a cleared translator and expert.  And he doesn’t know about what was and was not excluded from submission to al-Hawsawi, Ruiz’s client, as legal mail.

Ruiz needs a spare document, which he’s left in his office.   But that only raises the question: how long is this examination going to take?  The binders at Ruiz’s side suggest a lengthy inquiry, maybe a day’s worth according to Ruiz.  Thus the Convening Authority will reappear at a later time, perhaps in April.  Thus we talk scheduling, and availability.  Will he agree to be interviewed by the defense?  Yes, he will, and has no objections to transcription.  But he sure does object to interviews without a member of the government.  Ruiz: I am such an officer.  We all know what MacDonald has in mind, of course—no interviews without prosecutors present.

Housekeeping: we’re litigating written communication now, Judge Pohl says, via AE32 and AE18.  So that leaves the defense without resolution on that point.  Nevertheless, the court flags the issue immediately, apparently in light of bin Attash’s and Bormann’s earlier objections.  What about some sort of interim relief?  He has in mind the communications order now in force in another case, Al-Nashiri.  In any event, we’ll talk about bins and mail, after the break.