Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

1/29 Hearing #3: Notice, Classified and Unclassified

Wells Bennett
Tuesday, January 29, 2013, 11:55 AM
Let us turn now to 13U---a defense motion to strike the protective order’s “testimonial notice” provision, paragraph 8(a)(1)(b). It’s an offensive little paragraph, according to al-Baluchi's lawyer, J.

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Let us turn now to 13U---a defense motion to strike the protective order’s “testimonial notice” provision, paragraph 8(a)(1)(b). It’s an offensive little paragraph, according to al-Baluchi's lawyer, J. Connell III: the current language calls on the defense to provide the prosecution with prior notice of any statements---classified or unclassified---that the accused will make in the courtroom.  That’s overbroad: classified information is subject to prior notice under the relevant legal authority, Rule 505(g)---but not planned testimony by the accused.  And it’s unfair, too: prosecutors don’t have to provide notice of any unclassified testimony by their witnesses.  The paragraph thus amounts to residual “presumptive classification,” in Connell’s view.  It should be excised from the protective order. Judge Pohl: but you have no objection to providing prior notice of classified statements by the accused, correct?  Connell: correct. That’s precisely what is required by RMC 505(g), the authority most relevant to this dispute.  The colloquy is improved by another of Connell’s signature slides, this one a Venn diagram explaining the proper coverage of RMC 505, as compared with the staggering breadth of the paragraph 8(a)(1)(b).  The defense attorney then moves to a district court decision, which rejects any requirement of providing prior notice about unclassified statements of the defendant; and then to a side-by-side comparison (rather than a Venn diagram) of Rule 505(g) and the protective order’s current language; and then once more to his theme: prior notice of unclassified testimony by the accused? No, that’s unconstitutional.  But prior notice of the intent to disclose classified information, whether statements by an accused, or a document, or some other item? Yes, absolutely appropriate and required by law. Some fine-grained legal discussion then follows, about precisely what happens when an unannounced third party witness appears, and testifies to a classified fact about which the defense has provided prior notice pursuant to RMC 505(g).  That poses no problem for the defense lawyer.  Prosecutors can always cross-examine, and nothing---in RMC 505 or in CIPA---obligates him to reveal precisely how the defense will prove classified facts, which Connell must flag in advance.  Connell then identifies a subtle reciprocity problem in the protective order: when the defense provides RMC 505(g) notice, regarding classified material, the prosecution then inherits a reciprocal obligation to disclose any classified rebuttal evidence.  But there’s no such obligation as to unclassified stuff: under the protective order, the defense simply tips its hand as to the defendant’s planned testimony, and the prosecution pockets some strategically useful (and unconstitutionally obtained) strategic help.  Connell then strongly urges a return to the ordinary disclosure scheme, and paragraph 8(a)(1)(b)’s amendment. Cheryl Bormann stands and complains: why would the protective order require us to discharge duties---505(g), 505(h), what have you---that are imposed on the defense already, by statute?  She wishes to eliminate the redundancy. Over to prosecutor LT Kiersten Korcynzksi, who stands and argues that paragraph 8 is consistent with the MCA, CIPA, and CIPA case law.  Libby is on point.  There, the court pointed out some legislative history, which called on judges to craft creative, ad hoc solutions to tough information management problems.  She seems to say: take a page from Libby and get creative here, Judge Pohl, by leaving paragraph 8 untouched.  Korcynzksi also a highlights the problem of surprise.  Defense lawyers don’t always know what their clients plan to say in court.  For that reason, a broader notice regime is required. But if that is your concern, the court inquires, how can counsel give notice of what they don’t know?  The prosecutor swerves to KSM, who---as the court as acknowledged, and as the parties have seen before---may well seek to use to the witness stand as a forum for speeches and outbursts.  (Counsel obviously didn't know of those incidents in advance!)  Pressed by Judge Pohl, Korcynzksi concedes that notice of the accused's testimony isn’t required, to the extent that defense counsel are certain that their clients won’t wade into any classified subjects on the stand.  But again, we know from the very recent past that defense counsel can’t be certain---and that, therefore, the protective order’s testimonial notice provision must be retained as a failsafe.  The latter suggestion raises the court’s eyebrow: isn’t the real safeguard the audio delay we've all come to know and love?  Counsel doesn’t dispute the delay’s helpfulness, though she again notes the court’s discretion to keep the protective order in its present form. James Connell III speaks for a moment before peace breaks out: would he accept a conforming edit from Judge Pohl? The precise change is unclear, though we gather that (obviously) it involves excising some or all parts of paragraph 8(1)(b), as drafted.  Connell can accept the court’s amendment (which we’ll wait to read about this afternoon, in transcripts); so can Korcynzksi, who stresses the need to prevent the accused from spouting classified stuff while testifying in the courtroom.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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