Case Coverage: Al Nashiri Case

When is a Lawyer Not a Lawyer?

By Benjamin Wittes, Wells Bennett
Tuesday, July 17, 2012, 2:22 PM

Judge Pohl next takes up AO 82, the defense motion to force the Convening Authority to fund a consultant, Nancy Hollander, to aid the defense on matters related to national security law. (Government response: here. Defense reply: here.) The government, Reyes argues, added prosecutor Joanna Baltes--a CIPA expert from the Justice Department--as the classified information issues heated up. The defense needs one too, he argues. But unlike the prosecution, he can’t just go to the Justice Department. We have to hat in hand to the Convening Authority, he argues. What if Mr. Mattivi had expertise in DNA, Judge Pohl asks? Would you get an attorney with expertise in DNA? What if one of the prosecutors spoke Arabic?  That’s different, Reyes argues. This is a central issue in the case. Don’t you have a responsibility to educate yourself in this area of the law? Reyes says that his argument is that the government has recognized the need for specialized experienced counsel, and the defense has the same need.

Mattivi speaks very briefly. He begins by saying, “What a quagmire!” Do I need to disclose my resume so the defense can know how many explosives cases I’ve prosecuted so they can get a consultant with the same number? The parity argument collapses when you examine the differing burdens facing the prosecution and the defense, he says. The defense wants another lawyer. Another word for a consultant with specialized expertise in an area of law is . . . a lawyer. And there’s a process for detailing a lawyer to the defense. The defense should follow it, Mattivi argues.

Reyes rises again and emphasizes that Hollander won't be a lawyer. Hollander, he says, won’t be making an appearance. She won’t argue any cases. She’ll be a consultant on the issues that Baltes is helping the prosecution with.

Judge Pohl defers ruling on the motion.