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2/13 Hearing #2: Wherein Col. Bogdan Testifies About Recording Equipment

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Wednesday, February 13, 2013 at 3:25 PM

Our next witness is Army Col. John Bogdan, a military police officer and the joint detention group commander at GTMO since June  2012.  Nevin questions him.  Bogdan catalogs three types of visits with the high-value detainees at Echo II, GTMO’s meeting facility: attorney-client visits, ICRC visits, and medical visits. The last of that group are arranged by the defense for case-relevant assessments; other medical examinations take place elsewhere. Bogdan is aware of a proffer session in January 2012—regarding another detainee—but apart from that, and the meetings he’s described, the witness isn’t aware of other meetings at Echo II. He likewise has been told of the FBI’s installation of audio and visual monitoring systems there, but Bogdan says these lacked any recording capability. Afterwards, Echo II migrated from FBI control to JTF control, in 2008.  J2—GTMO’s intelligence staff—has access to Echo II, the witness tells Nevin.  And J2 likewise owns some monitoring equipment housed at the meeting facility.

While on a tour of the detention facilities, Bogdan says he has seen video monitoring equipment in one or two detainee cells: he saw two cameras, but not a control room. He explored the issue with Echo II’s Lieutenant Commander Mossberg, who clarified the standing procedures for video and audio monitoring.  Nevin asks whether Bogdan saw the control room; Bogdan did not.  The lawyer also wants to know if the witness visited Echo II much since his initial tour; Bogdan hasn’t done so frequently, but he has passed by Echo II since monitoring issues arose in this case.

Pivot back to visit-types: Are medical visits audio-monitored?  They aren’t, according to Bogdan, and legal visits aren’t, either.  As for the ICRC visits, a member of the guard force is present outside of a door left open, but visits are not recorded. The surveillance cameras are covered, Bogdan says.

Delving into the more recent past, Nevin asks: Is it true that after a motion was filed in this case approximately two weeks ago that Bogdan dealt with these questions again in a more intensive way? Yes, Bogdan replies. How was this issue first brought to your attention? In a meeting with Capt. Welsh and some members of the prosecution (Edward Ryan and Joanna Baltes) on January 31  to ask about monitoring capabilities within Echo II, Bogdan says. It was only then that Bogdan learned that the capability existed. He dispatched individuals to Echo II to more thoroughly examine it; they returned with the news that there was a panel and microphones for this purpose, which he was not shown in his initial tour with Mossberg.

Now the defense wants to know more about what orders he gave upon arriving at JTF-GTMO. There was to be no monitoring of attorney-client meetings, he says. He wanted to ensure that any listening of attorney-client meetings was prohibited; he issued that order to reinforce the existing standard operating procedure. The written SOPs say nothing, as it turns out, about audio recording; they neither permit nor forbid it. Nevin clarifies that Bogdan retains control over the facility, and as a result, has control over access to the facility by others. But J2 doesn’t have to get your specific permission to access Echo II, though, does it? No, Bogdan says, they just need to notify him or his staff in order to get access. What about other agencies, like, oh, say, the Central Intelligence Agency? Bogdan says that anyone who wants access needs to come to him. Alright then, Nevin wants to know: What contact have you had with the CIA?

Here the prosecution objects on relevance grounds. But Nevin says this is clearly what his motion is all about; he wants to know whether there are intelligence agencies surveilling defense attorney-client meetings. Nevin clarifies his question: has a representative from the CIA contacted you regarding monitoring of any kind at Echo II? Nope, Bogdan says, though he has had communication the CIA on other matters. How about the NSA? No again. What about more generally, Nevin asks: Any requests from any agency, intelligence or otherwise, to monitor conversations in Echo II? Bogdan says no.

They talk a bit more about the video system upgrades and repairs of audio systems that took place shortly after Hurricane Sandy and about whether attorney-client communications are being recorded at Echo I. Bogdan says no, there’s no monitoring there, and no capability to do it in attorney-client meeting rooms there.

Cheryl Bormann, counsel for Bin-Attash, is up. She discusses with Bogdan, first, a meeting that took place over the weekend between her staff and Mr. Ryan. She then pivots back to the wire repairs for Echo II. She asks Bogdan: that was equipment under your control, so you were responsible for repairing it, right? Weren’t you briefed about Echo II by Lt Cmdr. Mossberg about the extent of your command when you arrived? He showed you the Echo II facilities, right? She then gets back to the huts, and after asking about the visits he conducted with Nashiri’s defense team and a member of the prosecution, he confirms that the audio equipment in huts 1-4 was never repaired, and the equipment in huts 5-8 is functional. Bormann then delves into the visits he conducted with Nashiri’s team, which were only to the huts with no functioning audio recording equipment. So, what if every HVD meeting between my client and me was held in huts 5-8 since October 2012, which have had functioning audio equipment? Why haven’t I had any meetings in 1, 2, 3 or 4? Bogdan isn’t sure why it matters, since they aren’t using the audio recording system in those meetings. But Bormann wonders whether the equipment for huts 1-4 will be repaired. There’s no need for repairs, Bogdan responds, since we don’t use it anyway.

Bormann moves on to access to Echo II: J2 owns the audio/video equipment, Bogdan confirms. And J2 has translators? Yes, they do. Those translators have access to the Echo II facility, right? Bogdan doesn’t know that they ever have—nor that they haven’t, Bormann fills in. But she clarifies that they could gain access. Bogdan didn’t have access to his predecessors emails, did he? No. So he can’t be sure what their orders regarding recording visits were, right? Bogdan only knows what he’s been told. So J2 didn’t tell you that they’d fix the audio equipment when they upgraded the video equipment, and Mossberg either missed telling you or didn’t know that Echo II had recording capabilities, Bormann gets him to clarify. So, had the defense never made this motion, you wouldn’t have any knowledge of the equipment repairs and the capabilities in Echo II, right? Yes, Bogdan says. And as it turns out, none of the written SOPs have any instructions about the audio equipment’s usage, do they? That is also correct.

Harrington, counsel for Binalshibh, engages in a brief discussion with Bogdan, in which he wonders why Bogdan didn’t inquire about previous commanders’ orders regarding audio recording procedures, and why—once he did learn that they existed and were functional—he didn’t follow up with anyone or ask whether and how long Welsh had known this detail. Harrington then asks Bogdan questions about the steps he took to disconnect the equipment. He ordered his staff to first try to disconnect the wiring, but they were hard-wired to the equipment. Instead, he had the power cables disconnected from the power supply, and secured them in the safe. Harrington asks whether the equipment is still capable of functioning, which Bogdan confirms that it is. His staff, upon learning of the hard-wired nature of the setup, inquired about cutting the wires, which Bogdan did not permit.

Cmdr. Ruiz gets up to note that he would require a stipulation from his client Hawsawi in order to say for sure that all of their past attorney-client meetings were, like Bormann’s with bin Attash, in the huts whose audio recording equipment was functional. The prosecution then says that the previous request for discovery of the logs for visits was too broad—it went back to 2006—but that if the defense can narrow the focus of that discovery request, the prosecution will see what it can do. Judge Pohl decides that he’ll handle all discovery issues related to the motion at once.

Ruiz attempts to inquire about Bogdan’s contacts with the CIA, but Judge Pohl sustains the prosecution’s objections, allowing Bogdan only to confirm that he has had contact with the Central Intelligence Agency.

Recess until 1pm.