October 15 Commissions Session #3: Wherein Conflicts Are Waived

We’re back from recess.  But before we turn to the next motion---AE53, regarding a potential conflict of interest---Commander Walter Ruiz has another point about the motion that the court just took under advisement.  This visibly bothers Judge Pohl, who reminds Ruiz about his docketing order, and notes that constant rebuttal and surrebuttal will preclude orderly disposition of the day’s issues. But Ruiz highlights a document for the court regarding the appointment of counsel, a supplementary exhibit regarding the experience (or lack thereof) of defense office attorneys in death penalty cases. Paper submitted, the court and counsel turn to the conflicts issue. In short, one of al-Hawsawi’s lawyers, Commander Suzanne Lachelier, previously represented another defendant in the case, Ramzi Binalshibh, and had access to confidential information about him. Lachelier now is assigned to al-Hawsawi’s case as a resource counsel. The government had asked the court to inquire into a potential conflict; but since the issue bears on defense counsel, the court asks the defense to present argument first. Doesn’t this situation require a waiver, asks Judge Pohl?  Ruiz thinks one is required, and hands up documents for the court to consider ex parte. The government has no objection to such consideration, so Judge Pohl gives the documents a look-over. As he does do so, the court asks Binalshibh’s lawyer, James Harrington, whether his client has seen a copy. He has, Harrington affirms. Judge Pohl thus thinks aloud: Lachelier is not “detailed” to al-Hawsawi, and thus doesn’t take a lead role in his case; but even as a supporting lawyer, she had access to privileged information about her former client. The court thus verifies that Harrington and Ruiz have spoken with their clients about the foregoing, and that both accused knowingly and voluntarily have waived any conflicts, existing or potential. “Yes” is the answer, on both counts. The waiver having been resolved substantively, the lone issue is whether it must be so formally---that is, whether any on-the-record colloquy is called for, between the court and the accused. The defense lawyers say no. But, Judge Pohl observes, an on-the-record inquiry is called for in federal court, and these days lots of people note the similarities (and differences) between federal courts and military commissions. The defense lawyers add that they cannot foresee all conflicts that might arise at a later stage in the case. Over to Clay Trivett, who speaks for the government. He emphasizes the breadth of the conflict issue: the question is not just whether a conflict exists, but whether one could exist. The trial record thus needs development, so that prosecutors can take a position on disqualification if necessary. (Thus we preview a prosecution theme: always put as much stuff as possible in the trial record, given the prospect of appellate review somewhere down the line.) The charging documents, for example, obviously reveal the possibility of conflicts. Given these, the prosecutor asks for an on-the-record inquiry with the accused. That, he says, is required by the military commission rules. Ruiz and Harrington stand and add their two cents. The rule cited by the government, 901(e), applies to joint-representation, not to separate accused who are represented by different lawyers---but who might face a conflict of interest. For his part, Judge Pohl thinks the call is close. He thus opts for an on-the-record inquiry with the two men whom Lachelier has represented. Binalshibh is up first. The court reminds him that Lachelier used to work on Binahshibh’s behalf, and notes that she now works on al-Hawsawi’s case. Binalshibh says he understands this history and the issues that could arise from it. In particular, Judge Pohl tells the accused that Lachelier earlier had access to privileged information about Binalshibh, and that, while Lachelier is bound not to disclose such information to al-Hawsawi or to anyone else, the two men’s interests might well conflict at some point. The accused understands this, and further affirms that he read and signed a document regarding the possibility of a conflict---the document that Judge Pohl apparently read earlier, and now presents to him. Eventually, when asked, Binalshibh explicitly waives any conflict regarding Lachelier’s past representation of al-Hawsawi. Judge Pohl makes a finding to that effect, and turns to al-Hawsawi. The court marches through the same inquiry as before, and asks whether al-Hawsawi waives his right to conflict free counsel. Al-Hawsawi does.