8/21 Motions Session #7: AE018

Your correspondents bid goodbye to Burba’s lakeside picnic tables, just before the military judge announces the resumption of proceedings.  One accused, Ramzi Binal Shibh, has joined the group at the ELC.  That brings the absentee count to two, though Bormann explains that Walid Bin Attash is not in the courtroom but a nearby holding area.  Counsel and paralegals will assist him, she says, by ferrying documents and so forth to Bin Attash as needed.

Some uncompelling motions to compel remain for AE018, itself a long-pending government motion for a privileged written communications order. One of them concerns guard force testimony; the defense also seeks to compel testimony from LCDR Massucco, but David Nevin and company aren’t awfully worried about securing him with respect to AE018.  This is a long way of saying that, the guard force matter having been thoroughly discussed already, the motions to compel on AE018 are now ripe for decision by the court.

That leaves AE018 itself---which, as the Chief Prosecutor points out, has in some respects been argued already.  At any rate, David Nevin address the court about the government’s proposal to safeguard privileged documents.  He recites the history: the defense submitted its own draft order, and then the government objected to it in some respects.  Edward Ryan, for the prosecution, stands and reminds court and counsel that the draft government order is identical to that already approved by the court in Al-Nashiri.  Why is something different called for here? His crew thus objects to any further revisions or alterations, across the board.

One alteration would affect the definition of “legal mail.”  The government’s proposal envisions all kinds of problems, David Nevin says.  It would count a draft, still unsent letter from KSM to a witness, introducing Nevin as his attorney, as non-legal in nature, for example.  But that’s obviously wrong, Nevin argues.  Ditto the government’s approach to media-generated stuff, which would treat an article appended to lawyer-client correspondence as not subject to any privilege, ever.  Nevin cannot build the trust necessary to a client-lawyer relationship if, for example, passing on an article to KSM won’t implicate legal protection---even in the context of a written communication.  His client’s torture only raises the stakes here, he says.