Terrorism Trials & Investigations

6/18 Motions Session #1: Can You Hear Me Now?

By Raffaela Wakeman, Wells Bennett
Tuesday, June 18, 2013, 11:00 AM

The screen image is grainy here at Burba, but we nevertheless discern what has now become a quite familiar picture: we see the military judge, as always resplendent in his judicial robes, ascending the bench and donning his lapel microphone.  All the lawyers are present, he notes---but all the accused are absent.

This means two things: one, secular business attire for Bin Attash lawyer Cheryl Bormann, and two, the traditional prosecution colloquy regarding the accuseds’ voluntary waiver of their attendance rights.  Did all the five no-shows knowingly and voluntarily skip out today, asks prosecutor Robert Swann?  Yes, answers our first witness, a JTF staffer who spoke to the five.  The court finds the waivers to be legally sufficient, and we proceed.

So much for the introductory stuff.  Yesterday’s examination foreshadows Bormann’s likely theme---that the witness, former Convening Authority Admiral Bruce MacDonald (who again joins us by video) lacked the bona fides needed to review this case during the pre-referral phase.  Thus she begins by reviewing the witness’s past legal experience, including his brief stints as a defense lawyer and prosecutor.  MacDonald prosecuted two national security cases, he says, but no murder or terrorism or capital cases; he also had no capital experience prior to this case, and most of his resume comprised work as a Staff Judge Advocate.  MacDonald emphasizes that despite this, he generally understood mitigation at the time of his appointment as Convening Authority (such issues were covered under the UCMJ).

The lawyer reviews some office history, including the tenure of Susan Crawford, MacDonald’s predecessor, and the work of her legal advisor, Mr. Chapman.  The latter generated pre-trial advice in the Al-Qatani referral---which, as we all know, lead Crawford to reject charges against the alleged 9/11 conspirator.  Such advice, Bormann explains to witness and court, was vastly superior to that furnished to MacDonald this time around.  (A pause: does this mean pretrial advice is a separate legal matter from the referral itself?  J. Connell III thinks so, and tells the court about his intention to file an independent challenge to the pretrial advice; the latter can’t see how a lawyer could have waited so long to raise this as a freestanding problem, the larger defective referral dispute having been pending since before the case’s arraignment over a year ago.)  When asked, MacDonald notes that his legal advisors have criminal justice backgrounds---though he doesn’t generally know the details about who did what.  He’s similarly vague about whether his subordinates had any capital case experience.  Bormann switching gears: were you aware of past, public expressions of enthusiasm, by government officials, about prosecuting the accused criminally?  Yes, he was. When asked, MacDonald also denies any expectation of a possible referral in this case---given the federal proceedings---until 2011.  But when he received sworn charges in Al-Nashiri, earlier on, he understood that he would have to decide on whether or not to refer the case capital.  That didn’t prompt the witness or his staffers to seek special training on capital cases, though he reiterates: my legal advisors were capable, and researched all applicable law.

The defense attorney pushes a bit more about past efforts to interview MacDonald.  Yesterday the witness testified that he had declined an interview, then believing incorrectly that the defense wished to depose him without prosecutors present.  It turns out that defense attorneys, during past commission sessions and in letters, had proposed interviews only, or depositions without their opponents in the room; Bormann cites these, in asking MacDonald to explain.  He doesn’t really, but acknowledges that prosecutors prepared him for his testimony this week.

But then: technical difficulties.  That is, a break in the video hookup, and the calling of a brief recess.

The VTC restored, Bin Attash lawyer Cheryl Bormann resumes her questioning about Admiral MacDonald’s preparation by prosecutors.  Nobody took notes, says MacDonald, and no tape recording, either.  The witness had conversations with prosecutors, including Gen. Martins, during the case’s referral.

Wait: the video and audio feed from MacDonald to Guantanamo is apparently spotty---the picture freezes down at GTMO.  The threat of persistent technical screwups prompts the court, with input from Bormann, to pause the Admiral’s testimony and proceed to other matters now.  (Repairs evidently will take place during our lunch break.)