8/21 Motions Session #2: What Would Breslin Say

Motion to compel time---beginning with those regarding AE008, the defense’s motion to dismiss for defective referral.  First is a bid to compel testimony from Michael Breslin, legal advisor to the Convening Authority for Military Commissions.  Al-Baluchi’s attorney, J. Connell III, takes that one.  He reminds the court that the former Convening Authority, Vice Admiral Bruce MacDonald, earlier testified regarding the investigation of pre-referral allegations that defense communications were monitored. That investigation was conducted by Mr. Breslin, Connell says, and his testimony could thus inform the court about the investigation’s quality.  Yet Breslin won’t meet with the defense voluntarily.

As for why that matters, Connell explains that monitoring was but one of many impediments that precluded capital-qualified defense counsel from “representing” the accused, as required by the Military Commissions Act and commission rules, during the case’s pre-referral phase. (Counsel makes clear that any bar on legally adequate representation warrants dismissal, whatever actions Breslin took; that said, the government has argued that actions during the referral phase were taken in good faith---and that good faith is a reason not to knock out the case. Thus the need to compel Breslin, as a fallback matter.)

What about the remedy?  The lawyer tells Judge Pohl that, if AE008 is granted, then the case would have to go back through a new referral process---one free of the defects alleged in the defense challenge.  Sure, a fresh, impediment-free review might also take execution off the table, too---but residual legal mail issues preclude such an assessment from taking place. A final point: Mr. Breslin lastly could tell us about the drafting of the infamous Woods order on legal mail handling.  MacDonald insisted that his group had no role in creating the Woods order---but we might learn the contrary from Breslin, and thus discover that, in fact, the Convening Authority created the Woods order, and knowingly imposed unlawful restrictions on counsel after the swearing of charges.

David Nevin, learned counsel for KSM, rises. Like Connell, he refers the court to the rules for death cases.  You can’t refer a case capital unless the accused is “represented” by a learned counsel, Nevin argues.  Nevin swaps with Cheryl Bormann, counsel for Walid Bin Attash.  She underscores: the access restrictions imposed during the pre-referral phase inhibited Bormann and company from preparing a sufficient mitigation submission.  Mr. Breslin, in advising Admiral MacDonald on the decision to refer, can address these matters as well. If the Office of the Convening Authority was involved in JTF-GTMO decisions to impose these access restrictions, well, that certainly casts doubt on the referral process. A bit more, and the defense counsel retreats to her desk, leaving CDR Walter Ruiz, attorney for Mustafa Al-Hawsawi, to fill in the court further.

Among other things, Ruiz notes language barriers---he was given no assigned translator---which affected the mitigation effort for his client.  To Ruiz’s mind, the error is structural in nature, meaning that the defense is legally entitled to dismissal without having to show prejudice.  Judge Pohl is well-aware of all these and other defense arguments; he’s troubled by something else.  A finding of defective referral would leave no judge to rule on any referral-phase problems; the case has to continue, to preserve the court’s enforcement powers.  But Ruiz’s solution to this dilemma is simple: just remove representation barriers first, your honor, and then find a defective referral.  JTF would thus be left with your most recent rulings, and resolve the chicken-and-egg problem. Ruiz also isn’t convinced that a defective referral would leave those issues unresolved. After Ruiz returns to his seat, Cheryl Bormann asks for extra time at the mic: my mitigation preparation and submission strategy might have been different had the Convening Authority had communicated the gravity of JTF-GTMO’s access restrictions.

Jeffrey Groharing speaks for the prosecution---first by reminding the court that it’s already once refused to compel Breslin’s testimony.  At any rate, Groharing is openly skeptical that Breslin’s testimony would add to the substance of the issues at bar.  The prosecutor also clarifies that, the defense’s argument notwithstanding, the United States does not claim that “good faith” might excuse a defective referral like that alleged by the defense.  And that’s because of the United States true position---that there wasn’t any defective referral at all.  This is quite independent, of course, of the main problem here: for Groharing, Breslin’s testimony would simply duplicate testimony by Admiral MacDonald, Admiral Woods, and other prior witnesses. Nothing new has been added to the defense’s arguments since it first sought to bring Breslin to the stand.  The defense hasn’t shown relevance here.

J. Connell returns to the mic as Groharing steps back. He’s eager to address the prosecution’s skepticism about Mr. Breslin’s testimony. The defense, he reminds the court, lacks authority to compel government witnesses; Al-Baluchi’s attorney thus has to go through the prosecution, in order to bring in government witnesses. Moreover, government witnesses can decline to help the defense---as Breslin did here.  Well, you can talk to me, Judge Pohl says, if the prosecution squashes defense witness requests.  Connell: the prosecution wants us to provide a verbatim account of what the witness will say---and how could we know, if witnesses won’t meet with us? David Nevin pipes in to remind the court of Breslin’s role in the referral phase, and recounts Admiral MacDonald’s reflections on defense requests to extend deadlines in light of their access troubles.  MacDonald, after all, suggested that he might have treated the referral differently, had he known of some of the burdens on defense counsel.

So much for L’Affaire Breslin.  On to more motions to compel---after a quick recess.