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Al-Nashiri #5: Rear Admiral Woods Testifies

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Tuesday, January 17, 2012 at 3:24 PM

By Benjamin Wittes & Ritika Singh

After a 90 minute lunch break that went on a little more than 90 minutes, the Commission reconvenes at 1:45 pm for more action. Judge Pohl announces that JTF-GTMO’s commander, Rear Admiral David Woods, is testifying today, not tomorrow, so he is called. He shows up after an extended wait during which Judge Pohl complains that in the future, witnesses–regardless of rank–should be waiting and ready to testify.Reyes goes right in on the December 27 order on mail searches–trying to get Adm. Woods to acknowledge that defense lawyers’ signing off on the order is a condition of mail access to their clients. Adm. Woods does not concede this. In response to questioning from Reyes, Adm. Woods states that the Privilege Review Team (PRT) is up and running and consists of DOD contractors, who are mostly former law enforcement and intelligence personnel. He says the PRT works for DOD, not for him; its members have to have the requisite security clearances and sign a non-disclosure agreement. He says he doesn’t know whom they work for, but they don’t work for him. The contract, he says, is not his but is a DOD contract.

Reyes then turns to the genesis of the Dec. 27 order. Adm. Woods says it originated in his office with input from other offices in response to incidents of contraband mixed in with detainee legal materials. What exactly does the PRT do when they receive legal mail? They are engaged in plain-sight review for contraband, Adm. Woods says, and they make sure it’s properly marked. Reyes asks whether they are reading the mail? Not to my knowledge, Woods says. Judge Pohl asks how can they do a plain-view review without reading the material. Adm. Woods says they’d be looking for things like a map of the facility.

Reyes points out that contraband includes information contraband–six types of which are mentioned in the order–as well as anything Adm. Woods believes the detainee should not have. Adm. Woods resists this, but Reyes reads him the memo’s definition that seems to support his reading. How can the PRT identify whether something fits into the six definitions of information contraband without reading the mail? What exactly are they doing with the mail they get from defense counsel? Adm. Woods says he hasn’t been there with the PRT, but they’ve been doing this without controversy since 2004. But doesn’t the Dec. 27 order invite them to read them mail, Reyes asks? Adm. Woods says he doesn’t think so. Are they just looking for stamps? They are, Adm. Woods says, looking for stamps. If they find a problem with the categorization of the material, they bring it to counsel. Reyes still wants to know how they do this without reading the mail.

Judge Pohl seems to have similar concerns. If the PRT is not to review for substance, what beyond the markings is it supposed to look for? Adm. Woods says he wouldn’t expect them to do more than that. Would it be consistent with the intent of the order, Judge Pohl asks, for the court to clarify in its order that they are not to read the contents? Adm. Woods says it would be consistent.

In further questioning, Adm. Woods seems to say that documents that appear to be stamped attorney-client material should not be read further, but that attachments should also be considered privileged only to the extent they are referenced in the privileged documents. To be treated as privileged, material has to be created by the attorney or embedded in a document created by the attorney. That’s what the PRT is looking for, he says–that privileged material is marked and that marked material really falls under the category that is privileged. If it doesn’t, the material goes to the guard force to decide whether it can enter the camp.

Judge Pohl and Reyes here have an exchange over whether the defense is really suffering any harm by review of non-privileged material. Reyes then pushes Adm. Woods concerning what members of the PRT can do when they find information that might be contraband. They can seek guidance from intelligence experts and security experts–without giving specifics of the information–and ultimately, Adm. Woods says, the material is brought to him for a determination of whether it can be brought into the camp. Why are there translators and intelligence analysts associated with the PRT if all they are doing is looking for markings, Reyes asks? Adm. Woods responds that these are among the skills associated with the contract. But the markings wouldn’t be in Arabic, right? Why would they need to translate the document itself, Reyes asks? Judge Pohl sardonically asks if Reyes is planning to send his client privileged communications in Arabic, and Reyes says that he might.

For the prosecution, Commander Lockhart clarifies with Admiral Woods that privileged material is not read–that under the plain view standard, the PRT just relies on the fact that defense has properly marked it as privileged and is looking for material that jumps out as improperly marked, like, say, a map. Under the second category of non-privileged case-related material, she says, again the PRT is relying on the defense to have marked that material and would just make sure it was properly marked. She clarifies with him that the PRT is not to disclose the material beyond the scope of their work–and that they can be punished for doing so. She then goes over with him the mechanics of how the PRT operates.

Reyes closes Adm. Woods’s testimony by asking him what would happen if an Arabic document showed up. What do the translators do? Adm. Woods says he doesn’t know the details of the PRT procedures. He is then dismissed.

This motion, Judge Pohl decides, will be be argued tomorrow.