Terrorism Trials & Investigations

A Little CIPA To Close Out the Day

By Benjamin Wittes, Wells Bennett
Tuesday, July 17, 2012, 4:04 PM

Judge Pohl turns to outstanding 505 disclosures--the CIPA-like summaries that take place under the MCA.  He asks trial counsel whether there any more such material outstanding?  There is, Lockhart says.  That doesn't thrill Judge Pohl, given the case’s long history.  How long will it take you, prosecutors, to finish all of the classified discovery matters? Lockhart filibusters, citing among other things the government’s ongoing obligation to learn new information helpful to the defense. The trouble for the court is that this ongoing process precludes him from fixing a trial schedule. He chides the prosecutor, and asks for a better answe next time he seeks an update on discovery disclosures.

Kammen smells blood in the water, and he points out that the prosecutor in fact did not say when the next tranche of information will come. Judge Pohl then presses Lockhart, who cannot confirm a completion date. The trouble, she says, is newly discovered information.  Prosecutors keep finding more of this, and thus the slowdown.  Defense counsel then asks for an estimate of the number of pages yet to come.  That’s not too useful a number, in the commission’s view, as 505 summaries may differ in length from the underlying documents that they summarize.  The remaining summaries total roughly 100 pages, Lockhart says---a small amount in the grand scheme of things.

Judge Pohl moves to recess, until the beginning of tomorrow’s 505(h) session--which is closed to the public. Reyes takes a crack at claiming al-Nashiri’s statutory right to be present during that discussion.  He’s got a statutory right to be present at “all” sessions, Reyes argues. And there’s nothing in 505 that provides for his exclusion, he says.  But Judge Pohl seems skeptical, suggesting that 505(h) hearings do provide for exclusion of the defendant. He asks Baltes whether she has anything to add, and she agrees that the judge has found the provision that allows for 505(h) proceedings without the defendant present.

He declares that that is what he will do.

And we’re done until tomorrow.