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Judge Pohl reconvenes, and wonders: does the Defense have any issues that will need addressing tonight? For his part, Ruiz has a question regarding Admiral MacDonald’s testimony at 0900. Has the burden shifted to the prosecution on AE31, the motion to dismiss for unlawful influence? No, Judge Pohl says that there’s no evidence before him on those issues, which is true of every motion. But that's sort of the point, for Ruiz. He mentioned attachments to the motion---will those be considered? And what about the discovery issue he discussed at length with Judge Pohl earlier in the day? If the burden indeed has shifted, then, Ruiz says, the defense would like to make that argument to the court. Judge Pohl says he will start with AE31: if the public documents appended to that motion are offered as evidence, and if there’s no factual dispute about them, then Judge Pohl will consider the attachments in deciding the motion. Shifting the burden is a legal conclusion, he says, and there is no evidence before him right now, with which to decide AE31. If the parties want to discuss AE31 right now, he says, we can do so---but Judge Pohl is reluctant to discuss burden shifting on a dry record. Unlawful influence has a burden shifting element to it, sure, but it is no different from other burdens. The court thus doesn’t have an opinion on whether the burden has been met here; not at least, until he’s heard all underlying facts. A court doesn’t make a preliminary decision on the burden shift, and then take evidence on whether the defense has met the burden and if the government has rebutted the burden. So much for that issue; Judge Pohl then asks about near-term scheduling---in particular, what questions of law are before him. AE091, AE104, AE105, and AE106, says the Guv'ment. (Al-Baluchi's counsel, Sterling Thomas, is the proponent of all the motions in this group.) Another filing, AE107, has many legal aspects to it, and---Lawfarer's pause---Judge Pohl says he really wants to address the conspiracy component in particular. But that will only happen in due time. While the court has a sense of the arguments, it will save AE107 for our upcoming April hearings. So put those four questions of law, plus the witnesses, on the agenda for tomorrow. Looking further afield, our schedule looks like this: We are adding a session on 17 June, in addition to the April dates already agreed upon. And Judge Pohl plans to go five days in April, he says. Judge Pohl warns that no side should assume that the docket won’t be changing between now and the April hearings. Bormann flags an issue for the court, one at the very heart of AE32 and AE18, the pending defense and prosecution submissions regarding written communications. The gist: Bormann worries that properly-stamped legal mail is being searched while the clients are away from the detention camp---that is, while they are present for pre-trial hearings at the ELC. That seemed to happen yesterday, while bin Attash attended court proceedings: several documents went missing from his legal bin, including privileged documents. Thus Bormann moves to require the court to enter an interim order to get the documents back. She believes that a third party is in possession of material that is attorney-client privileged. She's emphatic and modest at the same time: All she asks is that Judge Pohl endeavor to prevent further violations. Judge Pohl says any lawyer knows not to violate the privilege. Of course, Bormann reminds the court that the privilege team doesn’t report to the Prosecution or to the Judge. Judge Pohl is trying to find solutions, he says---but the only option is to use the privilege team. Bormann: if the material has been properly stamped but is seized, then it should not be reviewed any further. General Martins says the Government wouldn’t oppose some manner of interim relief here---a draft order maybe---but Judge Pohl isn't interested. He won’t issue an order on motions still subject to litigation as AE32 and AE18 are. In the meantime, the privilege team will be advised to look for stamping, but not for anything else. Harrington and Nevin both believe their clients--who, like Bormann's, were here for court yesterday---confront this problem. And. . .we’re adjourned until Thursday morning.
Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT. Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
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