Military Commissions

1/28 Hearing #3: And on to the First (Now Moot) Motion...

By Wells Bennett, Sophia Brill
Monday, January 28, 2013, 11:56 AM

We begin with AE20, regarding the time for the defense to respond to government motions.  The court thinks its moot.

Bormann is back, and doesn’t touch AE20’s mootness.  Instead she pushes forward with attorney-client matters---their merits, or ones surrounding their merits.  In any event, since October 2011, she has been unable to send written communications to her client, Walid bin Attash.  And there’s no question that what she writes to bin Attash is privilege-protected.  Nevertheless, the government’s prying eyes are always eager to peek into those missives---so she doesn’t send them.  And because she can’t really visit the accused freely (or bring in any written materials, without subjecting those materials to review by the privilege team), as she would in a domestic federal prison, the arrangement makes for insurmountable barrier to minimal representation.

Judge Pohl: What does this have to do with AE20?  He thought that was under discussion, not the alleged injuries to the attorney-client relationship.  And, as he observed earlier, AE20 is apparently moot.  Prosecutor Edward Ryan stands and agrees that AE20 is moot.  That’s enough for the court, who dismisses AE20.  One more housekeeping measure: Ryan notes the in-court presence of an NYPD case officer, Detective Patrick Lantry, whom Ryan wants to preserve as a witness for some future time; Nevin doesn’t like that idea, but the court punts, as the case officer won’t testify today.  Ryan, for his part, acknowledges the risk involved in stashing a government witness in the courtroom: he’s attended prior sessions, and will do so in the future.  Judge Pohl reminds the prosecutors of the requirement to provide the appropriate, prior notice of any upcoming testimony by Lantry.