Military Commissions

4/15 Motions Session #2: What Sorts of Evidence, Part One

By Wells Bennett
Tuesday, April 15, 2014, 11:18 AM

Our recess concludes; the action resumes. KSM lawyer David Nevin begins the defense’s remarks on possible evidence it might offer to support of AE292---a motion alleging inappropriate FBI contacts with a defense security officer (“DSO”) assigned to Ramzi Binalshibh’s team, and seeking an abatement of procedings.  (By way of reminder, the FBI inquiry apparently arose in connection with the media’s publication of “Invitation to Happiness”---better known as KSM’s nutty manifesto on religion, culture and various and sundry other topics---some time back.)   For Nevin, the point of the AE292 is to ask the commission to make an inquiry into the whole affair.

That task ties in with a related, and even more recently arising issue: secrecy procedures mandated by the case’s protective order, so far as they pertain to (among other things) the leak of KSM’s wacky diary.  Nevin says he had respected the protective order’s rules, in handling the leak matter and filing court documents related to it; but now, he says, the government has suggested that somehow, by affirming such compliance in his written pleadings, Nevin himself committed a secrecy infraction.  How can such stuff possibly be "classified?"  The government's claim puts him at a great disadvantage, the visibly irritated lawyer says: the point of these rules is to protect national security information, not to shield the government from embarrassment or to overburden defense counsel.

His complaint lodged, the attorney overviews some possible documents the defense would put on, in litigating AE292: among other things, an agreement that the FBI agents asked the Binalshibh team’s DSO to sign, which barred the DSO from disclosing information; a declaration from Binalshibh lawyer James Harrington, regarding his conversations with the DSO; a live witness, the DSO’s supervisor, who is present on GTMO; and ex parte evidence.  Nevin pairs this catalog wiht a recitation of applicable law: when there’s a possibility of a conflict, there’s an obligation imposed on the tribunal to inquire; and an obligation on counsel, to avoid conflicts of interest.  Finally, when asked, Nevin tell shte judge that some key testimony would come, on an ex parte basis, from FBI agents who interviewed the DSO; the DSO himself; and (interestingly) prosecutor Johanna Baltes, who serves as the Chief of Staff to the Deputy Director of the FBI, when she’s not prosecuting cases.  (he ex parte inquiry is needed, in Nevin’s view, given that the FBI investigation directly implicates defense strategy and work product.

Binalshibh lawyer James Harrington chimes in. He says his DSO has obtained counsel, per Harrington’s advice---and that further communication regarding the matter will go through the DSO’s attorney.  In the meantime, though, Binalshibh’s crew is obviously without the services of a key professional staffer, who ordinarily can consult Harrington and company about how to handle national security secrets. Harrington agrees with Nevin’s appraisal of the needed testimony.

If a trial court fails to inquire into a potential conflict, then that’s grounds for reversal under Supreme Court law. So says Walid Bin Attash’s attorney, Cheryl Bormann.  She adds that she’s unaware of any contacts by the FBI---or by other government agencies---with Bin Attash’s defense team. But if law enforcement has approached other defense team members, it is likely that other defense staffers have been compromised in just the way Harrington’s DSO has been. On the evidence, Bormann seems to agree with the tally of would-be witnesses and evidence described earlier---but she also suggests that a supervisory DSO testify, among other things, in order to clarify the extent to which prosecution security officers knew of FBI contacts with defense security officers. She ends by urging the court, in devising its inquiry, to ensure the confidentiality of work product belonging to the various defense teams.  Judge Pohl has a duty to do this, she says, and can do this by means of an ex parte hearing.

Ammar Al-Baluchi’s attorney, James Connelll III, says that the supervisory DSO---the person with responsibility over DSOs tasked to the prosecution and to other defense teams---is assigned to his group. With that said, Connell proffers that this individual, if called, would say roughly the same as Harrington’s DSO would. Connell then refers to some documentary exhibits, at least one of which (in Connell’s view) may have given rise to the FBI’s inquiry.  The lawyer lastly agrees about the live witnesses who ought to be testify; and about the need for at least some ex parte process.

Finally there’s Walter Ruiz, attorney for Mustafa Al-Hawsawi.  Ruiz doesn’t re-hash the need for this or that evidence; instead, he orally moves to compel discovery regarding the investigation into the defense team, including discovery into FBI reports of contacts with defense security officers. The lawyer says he’ll follow up with a written request to that effect soon. And Ruiz is also eager for further guidance as to why Nevin’s obeisance to protective order protocols would be---as Nevin represented---a “classified” fact.

The prosecutor Edward Ryan says his side is precluded from having any knowledge of events described in AE292. The first his crew heard of the FBI’s approach to Harrington’s DSO was during a telephone call, late last week. (Apparently, the contractor furnishing the security officers, SRA, held a conference call briefing about the FBI interview on Friday.)  In short, the prosecution simply cannot dispute the claims made by the defense, because the prosecution doesn’t know anything about them.  But Ryan can and does offer input about the legal issue here, regarding conflicts.  For a conflict to exist, the interests of a lawyer and a defendant must diverge in a criminal case, he says---but there is no such divergence whatsoever at this time.  The defense speculates about possible conflicts, Ryan argues, because that’s all they can do.  And speculation isn’t enough.

The court auditions a possible way forward: would Ryan object, if Judge Pohl required defense team members to report any outside contacts (with FBI or others) to lawyers--notwithstanding any FBI non-disclosure agreement to the contrary?  The prosecutor says he cannot play a role in such an intervention---but again emphasizes that there’s simply no conflict here, even if the defense’s allegations are true.  Ryan lastly supplies context: among other things, his side’s long-running effort to make a record supporting Binalshibh’s presumption of competence, and the limited time allotted this week, with which the parties and the court can dispose of docketed matters.  He asks the judge to deny the defense’s bid for an abatement.

Reply argument follows from the defense, with (among other things) Connell making minor record corrections; and Nevin asking to dispel any suggestion that his team is subject to investigation.  Nobody wants to be investigated, he intones. In any event, the case law is on Nevin’s side: he says it is structural error for a trial court not to inquire into a conflict of the kind implicated here. That’s utterly necessary, given that, in the event of a conflict, Nevin may have to depart the case or his client will have to waive after receiving independent advice.  After a few more remarks, he ends with a call to put to rest any suspicion that his team has committed any infraction.  For her part, Cheryl Bormann directly challenges the prosecution’s claim of “no conflict.”  There absolutely is a conflict here, between her obligations as a lawyer and GTMO’s onerous secrecy rules.  A bit more argument follows, before we take a comfort break.