Folks, at 9:00 a.m. tomorrow, pre-trial hearings resume in the 9/11 case. As always, Lawfare will cover the four-day session, which we’ll observe remotely, via closed-circuit television.
The day reportedly will commence with AE133. That’s the much-discussed emergency motion, brought by all five accused, to prohibit the monitoring and recording of attorney-client conversations—in “any location, including Commission Proceedings, Holding Cells, and Meeting Facilities.” (Unfortunately the main defense filing remains unavailable, at least for the time being.)
Background: the challenge arose as a consequence of last month’s mishigas, in which some party or entity—neither Judge James Pohl, nor his court security officer, nor the prosecution—cut the courtroom’s audio and video feeds, evidently in response to KSM lawyer David Nevin’s mention of concededly unclassified information. Surprised and irritated, the court ordered the responsible person or entity to halt, and made completely clear that the military judge, and only the military judge, would have authority to block the audio and video going forward. That left the question of just how much our unknown third party might hear of the defense lawyers’ confidential sidebars with their clients. Thus the joint motion, and some related ones. The matter is pressing and fundamental, the defense argues. They cannot proceed, as an ethical matter, until they can be assured that confidential discussions indeed will not be subject to eavesdropping. In the meantime, Judge Pohl has ordered the government to preserve the courtroom’s audiovisual monitoring equipment, pending the defense’s examination of what can and cannot be heard—at counsel table, in client meeting areas, and so on.
The prosecution seemingly accepts the matter’s urgency, having agreed both to an expedited briefing schedule and to argument immediately at the start of the morning’s proceedings. It does so presumably because of great confidence in its position, which consists roughly of two claims: one, that the defense bears the burden of proof, and thus far has offered no evidence that, in fact, attorney-client conversations are being monitored or recorded; and second, that, in the words of the prosecutors’ brief, “[n]o entity of the United States Government is listening, monitoring or recording communications between the five Accused and their counsel at any location.” It will be intriguing to see how this plays out. During last week’s hearings in Al-Nashiri, defense lawyers suggested that they could conduct reasonably snoop-free discussions, in at least one corner of the courtroom, and at certain holding cells for the accused. Query whether defense attorneys in this case will echo that view tomorrow. (I’m doubtful, for whatever that may be worth.)
Will there be more this week, besides argument over possible monitoring?
Yes—a lot more, judging by the amended docketing order. The latter contains a battery of long-pending, fundamental rights-implicating, potentially case-tossing submissions. To name a few: AE08, AE31,AE104, AE106, and AE107, or the defense’s motions to dismiss, respectively, for defective referral, for unlawful influence, because the MCA 2009 exceeds Congress’s power under the Constitution’s Define and Punish Clause, because the MCA 2009 violates the Fifth Amendment’s Due Process Clause, and because the charged offenses were not recognized war crimes at the time of their alleged commission.
The last motion of that group (and the last on the week’s dance card) encompasses the now-familiar debate over the status of standalone conspiracy charges, as regards pre-2006 conduct. The prosecution earlier concluded that, under recent D.C. Circuit precedent, freestanding conspiracy likely was not a war crime subject to commission jurisdiction, at least not for that time frame. But the Convening Authority pointedly refused the Chief Prosecutor’s recommendation to withdraw conspiracy charges against the five accused. Thus the parties could debate the defense’s request to dismiss the case on jurisdictional grounds—in which the prosecution now has acquiesced with respect to conspiracy only.
There’s also some not-case-dispositive-but-nevertheless important stuff, too. Take, for example, AE32 and AE18, or the defense’s motion to bar intrusions into written attorney-client materials, and the government’s proposal regarding the protection of such commmunications, respectively. And the Convening Authority
It might, in other words, be quite a hearing. Stay tuned.