June 12 Session #5: Final Thoughts on the Conspiracy Charge, and Defense Security Officers

We resume with reply argument on AE48C.  It comes from Maj Danels, who says the motion is very simple: it asks only for the court to dismiss the charge of conspiracy, period. The prosecution, on the other hand, wants to “bargain” with the defense and court---by conceding to the charge’s rejection, subject to this or that condition. Well, Judge Pohl says, that’s not how it works---for the defense as well as the prosecution.  When the court asks, Danels argues that conspiracy, as a crime and as a theory of liability, is not accepted in international law (she refers the court to the reply brief and authorities cited therein). Consider what the vicarious liability approach must mean, argues Danels : if you simply spread conspiracy-ish allegations throughout the charges, as Martins recommends, then all that would be required to convict Al-Nashiri is knowledge of a criminal plan.  Concluding, she asks for additional briefing opportunities, in the event that the government prevails in its request for changes to the charge sheet.  Again, Judge Pohl isn’t up for that, for bargaining over who gets what, should an opponent prevail. He rules on the law and that’s it. If Danels desires to consider other matters, after the motion’s resolution, then she’ll have to submit them.

Gen. Martins rises briefly, in response to the defense’s claim regarding international law.  Thus he reminds the court of international cases bearing on joint criminal enterprise---in which a defendant was held liable for others’ crimes that were merely foreseeable.  Those cases are cited in prosecution briefs; no international law problem there, he seems to say.  He sits.

Next up is AE013J, a defense motion to amend the protective order. It boils down to this: the defense in this case wants what the 9/11 team so recently won, in litigation there.  In particular, Kammen tells the court, he would like the court to order the use of a defense security officer (“DSO”) who is within the defense’s attorney-client privilege bubble, as like has been done in United States v. KSM et al. Given that precedent, it’s really a dispute over numbers---”one DSO for the whole office,” versus “a DSO for every defense team.”  Why not just one DSO defense-wise, Pohl queries, as the prosecution suggests? Kammen hasn’t thought deeply about this, but mentions potential conflicts of interest. Seeking to mollify Kammen, the military judge proposes crafting specific instructions, so as to avoid conflicts. Moreover, the court adds, really there are only two active cases theses days---and thus, he implies, not a strong likelihood of trouble. Still, Kammen really wants his own DSO, among other things because he doubts the court’s proposal regarding conflict resolution.  (The court mentioned the appointment of an “alternate” DSO, in the event of a problem; that won’t work, in the defense lawyer’s view.)  A team-aligned person would make the defense’s life easier, Kamman argues.

Judge Pohl poses to prosecutor Justin Sher a variation on the same hypothetical he posed to Kammen: imagine a DSO, who learns privileged information in case 1.  Then he learns privileged information in case 2. We would propose language explaining the DSO’s responsibilities clearly to avoid a conflict and ensure the preservation of privilege, Sher explains. And there risk is minimal, so far as privilege goes---the DSO doesn’t, after all, advise on the law or facts, or help with litigation.  Instead the officer simply interprets security rules.  Sher returns to his table.

Is this a money issue? Kammen wants to know. Judge Pohl isn’t sure, himself. At any rate, Kammen reiterates: he just wants a DSO in his case.  Regarding the one-versus-many question, Kammen observes that, according to Maj Danels, there are a total of 5 DSOs working the 9/11 case. That proffer hangs out there unaddressed, though, as Judge Pohl takes the arguments under advisement.