Case Coverage: Military Commissions

On Paralegals and Associates

By Benjamin Wittes, Wells Bennett
Tuesday, July 17, 2012, 2:44 PM

Kammen shifts to his reimbursement motion, AE 76.  In particular, defense counsel wants to add a sixth, civilian paralegal to Al-Nashiri’s defense team. That person would be paid on an hourly basis, perform limited tasks, and could work from Kammen’s offices in Indianapolis. Such approach is preferable, he says, to having the Chief Defense Counsel hire a new employee outright - that involves a lengthy clearance process, among other things. Under questioning from Judge Pohl, Kammen says that any additional work by the paralegal - beyond that contemplated in his request - would require further justification at a later time. There’s also the matter of Kammen’s associate: he says that the associate would perform case-specific research and writing projects only. That spooks Judge Pohl a bit. Does he have the authority to make this appointment? Kammen says he does, as the MCA 2009 permits the appointment of “at least one” --- meaning multiple, as appropriate --- Learned Counsel. (The commission doubts whether civilian counsel other than Learned Counsel may be appointed; the lingering issue appears to be whether, in fact, Kammen’s chosen colleague would satisfy the requirements to serve as Learned Counsel.)

The prosecution wants to add word or five. Mattivi argues that the defense’s approach makes an end-run around the Convening Authority process. The defense here wishes not to invoke that process as to its request for a sixth paralegal - instead, defense counsel has asked the commission to add another paralegal to the defense team unilaterally. That’s contrary to the ordinary process, which should be respected, in Mattivi’s view.

Kammen rises in reply and clarifies. On the contrary, we did make a request to the Convening Authority, and it was rejected. (It appears that the Convening Authority was prepared to grant the request generally, but not to appoint Kammen’s choice.) After that, we filed our motion, among other things because the defense’s approach makes much more logistical and economic sense, relative to that of the Convening Authority. There’s just no reason to hire a full-time paralegal in Washington, D.C., for much more money than necessary, and that’s what the Convening Authority and prosecution would require. Judge Pohl is skeptical of Kammen: why couldn’t you just ask the Convening Authority for the sort of cost-efficient paralegal you want? Kammen again urges his method, which he says is cheaper and smarter. And Mattivi, for his part, disputes the notion that the defense gets to go behind the Convening Authority’s reasonable decision to allocate resources.

Judge Pohl then says he’ll rule on all of the resource motions together. There’s a pause to talk about upcoming classified motions, and then we recess briefly.