Military Commissions

1/31 Hearing #3: In Which a Brief Delay is Sought--and Obtained

By Wells Bennett
Thursday, January 31, 2013, 11:55 AM

Nevin at the podium.   He wishes to make sure that Judge Pohl’s earlier ruling, regarding the cutting of the audio and video feed, takes effect immediately as announced.  The court makes clear that no third party can cut the broadcast now---even though it remains physically to disconnect the offending censorship equipment, whatever it may be. That might take some time---but won’t require suspension of today’s proceedings.

On to AE40, Walid bin Attash’s motion to compel the production of witnesses.  The Convening Authority will be produced, per the court’s earlier order; that leaves only one witness, Col. Torres.

Or not.  One of bin Attash’s attorneys, Cheryl Bormann, returns to a recurring defense theme.  It cannot constitutionally be required to provide prior notice of its sought witness’s planned testimony, or, more broadly, to ask for prosecution sign-off on a given witness’s production.   The lawyer also reminds the court of its earlier ruling on Rule 703—or, really, its oral preview earlier this week, the written version having not come down just yet.  The opportunity to obtain witnesses here, she argues, must be comparable to the defendant’s opportunity to do so in an Article III court.  But it isn’t, among other things because of the court’s oral ruling---which still generally insists on prior notice to prosecutors, whenever the defense wants to compel the production of witnesses.  Of course, there is the possibility of an ex parte request to the court, provided the circumstances are sufficiently "exceptional." What does that mean?  Bormann doesn't know, and thus also doesn't know whether, and how, she should supplement AE40 so as to conform to the court's oral ruling.  Which is to say: she’s not ready to argue any motions to compel now.  She adds that the lack of preparation isn’t her fault---how could the defense divine what Rule 703 meant, or didn’t mean, in advance?  She thus disputes any suggestion by the court or prosecution that the slow pace can be attributed to her or her colleagues.

An attorney for Mustafa al-Hawsawi, CDR Walter Ruiz, seeks clarity about the motions that remain for argument today.  The defense recently withdrew some filings, but the withdrawals are not yet noted on the docket.  Confusion: what motions, and witnesses, do we still need to talk about?   Which ones have and haven't been decided? 

Ruiz can’t help a slight smile, as he raises what is, in his opinion, a cross-cutting, could-affect-all-remaining-motions-to-compel issue.  Of course he refers to---surprise!---Judge Pohl’s oral ruling on Rule 703, the subject of Cheryl Bormann’s earlier objection moments.    Seemingly like Bormann, Ruiz still wishes to know about ex parte requests, and the exceptional circumstances that could support them.  The lawyer doesn’t know whether he could (or must), in light of the court’s oral ruling on Rule 703, revise his production requests.  Thus he too must review the court's written order, so as to perform any needed reassessments.  The court simply cannot see how this matters: even in ex parte situations, the witness still must come to court, and presumably testify openly.  Ruiz responds by noting the issue---the problem is timing, and the need to avoid previewing witness testimony in advance whenever possible.

So how to proceed?  We know what the defense wants:  a modest delay, with which to a) receive the court’s written ruling on witness procedures; b) review it; and c) revise their witness requests accordingly (or not).  What about the government's view?  The court discusses the ins and outs of Rule 703 with prosecutor Jeffrey Groharing.  The latter doesn’t think any delay is appropriate, and instead proposes that the defense explain why its requested witnesses are relevant and necessary---now.  The substantive issues are light years from secret, or even especially sensitive; why the need for an “emergency” ex parte request anyway, on motions to dismiss for defective referral, or for unlawful command influence?

Judge Pohl decides.  He doesn’t quite understand why a party seeking to compel a witness’s testimony cannot also explain the relevance and necessity of that testimony.  That said, the defense will have a brief delay, so as to supplement their filings in light of his oral ruling on Rule 703.  (When the court’s written ruling will materialize remains unclear---and the court doesn't mention it.)  Any supplemental filings must be made by next Friday COB; all remaining motions to compel will be addressed on the following Monday (when the case’s next session commences) or Tuesday.  The court emphasizes that this is a stopgap, one-time only measure: there won’t be any witness request do-overs in the future.

Guess what?  Delay of the motions to compel means that there’s nothing left to address today.  Thus we adjourn, until 0900 on 11 February.