A Request for Translation

We turn to the day’s final motion, AE97, regarding the defense’s request to compel the timely translation of documents into Arabic for Al-Nashiri.  The motion is brand-spanking new; the defense filed it just last Friday.  Thus, Andrea Lockhart rises: she desires to say a few words on the government's behalf, before the day’s Swan Song litigation gets underway.  The prosecution may want to respond to the defense motion in writing, Lockhart says.  And when Judge Pohl asks, she clarifies that yes, the government opposes the motion. Enter defense lawyer Stephen Reyes.  He wants 1535 discovery documents translated pronto--for mitigation purposes, he says.  Reyes refers obliquely to the potentially privileged character of the documents, which apparently bear on the conditions of Al-Nashiri’s confinement.  Wait, says Judge Pohl: are the to-be-translated pages subject to the attorney-client privilege?  No, answers Reyes.  The discovery here came originally from the government, not from Al-Nashiri.  The trouble for Reyes instead has to do with the work product doctrine.  The government, according to Reyes, wants defense counsel, in its request, to identify the documents needing translation.  And that could reveal the defense’s mental processes, and risk waiver of work product protection. Lockhart stands and points out that, while the government has not filed its opposition to the motion, it has presented relevant arguments and translation authorities to the commission in prior motions.  As for the government's oral argument, it boils down to this: there’s no law requiring the translation of all discovery documents across the board.  Instead, defense counsel must identify to-be-translated documents by category, and justify the need for additional translation help.  Of course, certain essential materials must be translated – like the charge sheet, which has been translated to Arabic for Al-Nashiri already.  Judge Pohl asks, what other documents need to be translated?  The prosecutor doesn't answer, as she wants to talk instead about the great number of documents that have been translated already, with the resources granted previously to the defense.  No further translation expenditures are called for: the defense has linguists and other personnel who can arrange for real-time translation with the accused.  Problem solved. Defense counsel rises.  Reyes emphasizes that at the moment, referral materials are in the process of translation but not completely translated.  In the meantime, the defense has identified 1500 additional pages of mitigating discovery that also must be translated.   The situation is thus untenable: it is exceedingly burdensome for Reyes to take the defense's linguist away from the referral materials, in order to have him or her work with Al-Nashiri in person and laboriously translate the mitigating discovery, page-by-page.  In his view, this scenario only further demonstrates the merit behind the defense's motion.  He then emphasizes that the logistical matters are separate from those bearing on the work product doctrine.  Judge Pohl will have to address both. Lockhart gets the last word.  After conferring with co-counsel, she says the government will not submit further briefing on the translation issue after all.  Keeping to his recent practice, Judge Pohl takes AE97 under advisement. Then there’s some housekeeping back and forth – about depositions, and the prosecution’s search for generic categories of information regarding investigative resources – and we’re in recess.  That is, without rulings on any of the day’s motions, and without a hearing on the defense’s still-pending motions to compel discovery.