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2/12 Hearing #4: From the Courtroom to Echo II

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Tuesday, February 12, 2013 at 3:36 PM

Lunch ends and our proceedings resume.

Judge Pohl does so with a few logistical notes. Our marching orders later today may depend on witnesses’ video tele-conference (VTC) scheduling; the parties thus compare notes about who will be available when this afternoon, and reconciles that schedule with the accused’s planned prayer break.  It will commence sometime between 3 and 4 p.m.   This clears the way for our next witness, CAPT Thomas J. Welsh.

KSM lawyer David Nevin asks Welsh to review the emails Nevin noted earlier today; he does.  The defense attorney then asks not about audio snooping, but about document inspecting, and Admiral David Woods, who assumed command at JTF-GTMO in 2011.  The latter conducted a “baseline” review—in which staffers examined the contents of the detainees’ legal bins.  Welsh was the only SJA involved in that process, he says, though he certainly did not look at any letters drafted by attorneys that were sent to the accused.  But, Nevin notes, wouldn’t you consider attachments to form parts of privileged communications between attorneys and clients?  In some cases, Welsh says, while highlighting security concerns that warranted the review. When asked, the witness acknowledges that JTF staff did not confer with counsel before examining the legal bin.  For context’s sake, Welsh adds that he wouldn’t ever consult with defense counsel before performing any security inspection, of bins or cells or clothes or similar items.

The lawyer steers back to monitoring.  Has that come to Welsh’s attention?  Not before the most recent court session in this case, he says.  Nevin is interested, in particular, in certain Guantanamo’s attorney-client meeting facilities, known as “Echo II.”  About a year before, a detainee and prosecutors conducted a proffer meeting about a possible plea deal.  Welsh says he then saw an official listening to the proffer.  As for layout, CAPT Welsh was located in an Echo II control room, with the listener, who used headphones to eavesdrop; the meeting took place in an adjacent hut.  Welsh adds that video monitoring was underway, as well, but this was standard security fare for Guantanamo.  The day after, Welsh asked a colleague, COL Donny Thomas, about remote monitoring of attorney-client meetings—as opposed to plea discussions between counsel, accused, and the prosecution.  Thomas, for his part, assured Welsh that JTF-GTMO does not monitor attorney-client conversations.

Next, Nevin refers to the tranche of emails, which Woods roughly two days ago culled from the tens of thousands of emails in his inbox and those of his SJA predecessors.  In one, a federal official explains the Bureau of Prisons’ monitoring policy to Welsh.  The former says “you are correct, we do not monitor”—apparently as far as audio goes.  There’s another email thread, too, this one containing questions for Admiral Woods about a 2012 press conference.  In that exchange, Welsh corresponds with a SOUTHCOM officer—though he wasn’t, Welsh stresses, on the larger email with Woods.  Welsh didn’t review any advice provided to Woods in advance of the press event.  In any case, it appears that Woods earlier had written that “no microphones are installed to ensure privacy” among defense attorneys at Echo II (whatever this may mean).  The witness says he would have insisted on more accurate wording, had he been party to Woods’ initial email, or consulted about Woods’ responses.

Welsh nevertheless explains that a microphone indeed was installed in the Echo II meeting room—and housed in a square device akin to a smoke detector.  Nevin pushes back to 2008, before Welsh’s tenure as SJA.  In another electronic message, an assistant advises Welsh’s predecessor, “if you [the predecessor] need an affidavit that we did not keep sound recordings, I would be happy to give it.”  Well, Nevin says, isn’t the implication that sound recordings were made then, just not kept? Welsh doesn’t have any knowledge about the situation in 2008, and won’t speculate.   One more email. In it, a news article mentions an alleged government proposal to monitor detainee conversations.  But that was in 2004, Welsh says, and the alleged proposal arose in the habeas setting.   Still, according to the article, Nevin says, attorney meeting areas were supposedly not wired for sound—and now, they are.  What gives?  Welsh doesn’t know when audio monitoring came online at Echo II. 

The discussion turns to Woods’ 2011 order on the procedures for attorney-client communications.  The latter required defense counsel to identify, in advance, what language would be spoken during counsel meetings.  Welsh testifies that the language selection provision isn’t followed in practice.  Ah, Nevin points out, but another clause obligates counsel and client to communicate in a single language; and furthermore disallows translation of discussions among counsel.  Welsh shrugs; JTF-GTMO doesn’t enforce those clauses either.  Well, Nevin asks, what is the reason for the language stipulations, other than the need to listen in on an attorney-client meeting?   The witness cites the order’s many authors (many cooks labored over this broth), but doesn’t recall precisely what the reason was.  Under his watch, Welsh underscores, nobody listens in to confidential conferences.  Were the practice otherwise, he wouldn’t have given the document to his commander to sign.  The lawyer advances to another email, which contains another news account—but that mentions foreign intelligence collection at Guantanamo, Welsh observes, not attorney-client meetings.

James Connell III wants a word about the baseline review.  The witness distinguished between that process’s beginning and end; how long was the review?  Ten days, recalls Welsh, with some breaks.   And Connell’s client, al-Baluchi, saw his materials reviewed sometime in October of 2011? October 11, Welsh confirms.  On to the drafting of Woods’ December 2011 policy.  Welsh says he helped to provide comments and drafting help, but that SOUTHCOM SJA personnel took the lead.  Did Welsh know that the defense’s first opportunity to comment came at the end of December 2011?  That unfortunate timing was not up to Welsh, he answers, while conceding that defense counsel had only 26 hours total to review the draft policy.  Then Connell gets to the punch line: to Welsh’s knowledge, are there any ongoing investigations into alleged audio monitoring at Echo II?  Welsh: when the issue came to light during the case’s last session, the facility was opened to lawyers for another commission defendant, al-Nashiri.  But he doesn’t think those attorneys uncovered any monitoring capabilities.  That is, apart from the offsite recording equipment Welsh described to Nevin.  Apart from that: no, he doesn’t know of any other inquiries into audio.

Lawyer James Harrington asks about baseline review of Binalshibh’s legal bin.  Welsh says the bin was inspected in October of 2011.  But does the witness know about an inspection of the accused’s legal bin yesterday?  Welsh doesn’t, but security inspections for contraband take place regularly when detainees are moved from the ELC to the detention facility.  A few more questions and answers—mostly about Guantanamo prior to Welsh’s arrival.  As to Welsh’s tenure, the witness says that, after learning of audio monitoring at Echo II, he didn’t inquire further about the issue—other than to speak to a colleague, Thomas, who assured him there was no snooping in on attorney-client talks at Echo II.

Bin attash’s military lawyer, CPT Michael Schwartz, asks about any specific investigations into monitoring of his client.  Welsh doesn’t know of any.  Remember the Echo II audio device?  Welsh describes this as a white, squre item located on the ceiling, not unlike a vent.  Schwartz then inquires about Welsh’s reaction to audio monitoring of the proffer session: did he talk to anyone on his staff about it, that is, apart from Thomas?  Welsh doesn’t recall, but does remember CDR Strazza and another staffer participated in monitoring the proffer session. Welsh also confirms that JTF-GTMO examined the contents of bin Attash’s legal bin.

A few questions more, and we come to a pause.  We’ll recess briefly.